Development and Planning Law in New South Wales [1 ed.] 9781922042040

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ABOUT CCH AUSTRALIA LIMITED CCH Australia is a leading provider of accurate, authoritative and timely information services for professionals. Our position as the “professional’s first choice” is built on the delivery of expert information that is relevant, comprehensive and easy to use. We are a member of the Wolters Kluwer group, a leading global information services provider with a presence in more than 25 countries in Europe, North America and Asia Pacific. CCH — The Professional’s First Choice. Enquiries are welcome on 1300 300 224. National Library of Australia Cataloguing-in-Publication entry Author:

Whitehouse, John, 1952– Title: Development and Planning Law in New South Wales/John Whitehouse; edited by Fiona Harmsworth. Subjects: City planning and redevelopment law — New South Wales. Planning — Law and legislation — New South Wales ISBN: 978 1 922042 04 0 © 2012 CCH Australia Limited Published by CCH Australia Limited First published October 2012 All rights reserved. No part of this work covered by copyright may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, recording taping, or information retrieval systems) without the written permission of the publisher.

FOREWORD The purpose of this book is to examine and explain development and planning law in New South Wales. The approach taken is explicitly based on the applicable legislation and judicial decisions. With both legislation and cases, key provisions are outlined and analysed. Extensive excerpts of key judgments are included so that a reader may independently assess the validity of the conclusions drawn. In each area of the law, sets of principles are derived from the legislation and cases to provide a coherent framework of the law. The discussion also seeks to identify the underlying policy or rationale, both of legislation and judicial decisions. This book will be useful for lawyers practising in the field, planning practitioners, local government staff, developers, consultants, community groups and students. It presupposes no detailed

knowledge of the field, but provides an outline and analysis at a level of detail capable of meeting both introductory and specialist needs. I am indebted to many for their assistance in preparing this book. In particular, I am extremely grateful for the detailed and thoughtful comments on draft chapters by Tim Hale S.C., Simon Ball, Helen McFarlane and Luke Walker. Any errors that remain are mine alone, but they are significantly fewer because of the comments I have received. All care has been taken in the reproduction of key quotes and judgment extracts throughout this book. For consistency and ease of locating particular information, however, readers will find that Act names, case names, Latin terms and the names of key publications have been italicised, even if these were not italicised in the source material. The preparation of text for my written manuscript was undertaken by Cathy Brockman and Margaret Tupou, two fabulously proficient typists and computer operators. Likewise, my editor at CCH, Fiona Harmsworth, and the staff at CCH have been of immeasurable help and encouragement. The assistance and forbearing by my Partners at Minter Ellison has been greatly appreciated, particularly Simon Ball, Duncan McGregor and Penny Murray. It would be remiss of me not to record my deep gratitude to the late Paul Landa Q.C.M.P., Minister for Planning and Environment (1976– 1980) and Attorney-General of NSW (1983–1984), for his inspiration and vision. This book is dedicated to the memory of my late mother, Marcelle Rosina Whitehouse (1922–2010). John Whitehouse Sydney September 2012

ABOUT THE AUTHOR

John Whitehouse (BA LLB (Sydney), BSc (Macquarie) Dip Leg Pr (UTS)) is one of Australia’s leading environment and planning lawyers acting in relation to major development, mining and environmental issues. John is a solicitor in private practice and a Partner at Minter Ellison Lawyers, Sydney. His practice has encompassed litigious, advisory and transactional matters. John has acted in relation to many development projects, including numerous coal projects, as well as those in areas of extractive industries, ports, retail centres, residential developments, commercial developments and tourist developments. In addition, John has acted in many pollution control matters.

John is admitted as a Solicitor of the Supreme Court of New South Wales, a Barrister and a Solicitor of the Supreme Court of Victoria, and a Solicitor of the High Court of Australia. Since 1997, John has been a Fellow in the Graduate School of Environment at Macquarie University. He has been lecturing in the course — GSE 801 Environmental Law and Policy — since 1995. John has held a number of high profile roles in the public sector. These include him being Special Advisor to the Minister for Planning and Environment (1976–1980), Head of the Environment Protection Division and then Assistant Director of the NSW Department of Environment and Planning (1980–1985) and Director of the NSW National Parks and Wildlife Service (1985–1989). Through his previous work in the public sector, John has made some significant contributions which have resulted in the: • enactment of the Heritage Act 1977 (NSW) • enactment of the Environmental Planning and Assessment Act 1979 (NSW) • enactment of the Land and Environment Court Act 1979 (NSW) • cessation of coastal mineral sands mining in New South Wales • expansion of north coast natural parks, including Myall Lakes, Crowdy Bay, Limeburners Creek, Hat Head, Yuraygir, Bungalung and Broadwater • expansion of wilderness national parks, including Deua-Wadbilliga, Wollemi, Goulburn River, Yengo and Oxley Wild Rivers • cessation of rainforest logging and the establishment or expansion of major rainforest national parks, including Border Ranges, Nightcap, Washpool, Werrikimbee, New England, Dorrigo and Barrington Tops • inclusion of the Australian East Coast Temperate and Subtropical

Rainforest Parks on the World Heritage List • NSW National Parks and Wildlife Service being recognised in 1986 by Dr James Thorsell of the International Union for Conservation of Nature (IUCN) as one of the top four park services in the world • establishment of the Sydney Catchment Authority and the development of metropolitan water planning for Sydney, and • establishment of the Accelerated Sewerage Treatment Program to remedy the backlog in sewerage treatment in the Sydney drinking water catchment. John is a Member of the International Council on Environmental Law, a Member of the IUCN Commission on Environmental Law and Member of the IUCN Commission on National Parks and Protected Areas. He is also a Member and holds a position on the Editorial Advisory Board for the Australasian Journal of Natural Resources Law and Policy. To access the details of other publications by this author, please refer to web.science.mq.edu.au/intranet/directory/listing/person.htm? id=jwhiteho John may be contacted via the following email address: [email protected].

CCH ACKNOWLEDGMENTS CCH Australia Limited wishes to thank the following who contributed to and supported this publication: Managing Director: Matthew Sullivan Director, ANZ Books: Jonathan Seifman Publisher, ANZ Books: Andrew Campbell Deputy Publisher, ANZ Books: Adriana Giometti

Senior Editor, ANZ Books: Fiona Harmsworth Production Team Leader: Rafiza Abd Aziz Production Editor: Natalie Chong Sub-editor: Leong Kwan Yi Indexer: Adrian Leow Market Development Manager: Lauren Ma Books Coordinator: Mele Aloua Cover designer: Mathias Johansson [Note: the discovery of an Eastern Water Dragon in investigations associated with a development application’s potential impact on a riparian zone led to the creation of a precedent in environmental decision-making in the Land and Environment Court of NSW. See Evidence and Findings, item 39 in Silva v Ku-ring-gai Council [2009] NSWLEC 1060.]

ABBREVIATIONS 1909 UK Act Housing, Town Planning etc Act 1909 (UK) 1932 UK Act Town and Country Planning Act 1932 (UK) AHD

Australian Height Datum

ALJR

Australian Law Journal Reports

BASIX

Building Sustainability Index

BHP

Building Height Plane

CC Act 1992 Casino Control Act 1992 (NSW) cl

clause

CLR

Commonwealth Law Reports

County Scheme

County of Cumberland Planning Scheme Ordinance

DA

development application

DAF

Development Assessment Forum

DCP

Development Control Plan

DFC

desired future character

DG

Director-General

Div

Division

DLWC

Department of Land and Water Conservation

DUAP

Department of Urban Affairs and Planning

EEC

endangered ecological community

EIA

Environmental Impact Assessment

EIS

Environmental Impact Statement

Endangered Endangered Fauna (Interim Protection) Act 1991 Fauna IP Act (NSW) EPA Act

Environmental Planning and Assessment Act 1979 (NSW) [Note: • 1985 Amendments refer to changes made under the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) • 1996 Amendments refer to changes made under the Environmental Planning and Assessment Amendment Act 1996 No 44 (NSW) • 1997 Amendments refer to changes made under the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) • 2005 Amendments refer to changes made under the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW)

• 2006 Amendments refer to changes made under the Environmental Planning and Assessment Amendment Act 2006 No 8 (NSW), and • 2008 Amendments refer to changes made under the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW).] EPA Amendment Regulation 2009

Environmental Planning and Assessment (Plan Making) Regulation 2009 (NSW)

EPA Regulation

Environmental Planning and Assessment Regulation 2000 (NSW)

EPA Regulation 1980

Environmental Planning and Assessment Regulation 1980 (NSW)

EPBC Act

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

EPI

Environmental Planning Instrument

EPIP Act

Environment Protection (Impact of Proposals) Act 1974 (Comm)

ESD

Ecologically Sustainable Development

FCR

Federal Court Reports

FIS

Fauna Impact Statement

FM Act

Fisheries Management Act 1994 (NSW)

FSR

floor space ratio

HCA

High Court of Australia

ICAC

Independent Commission Against Corruption

IDO

Interim Development Order

IHAP

Independent Hearing and Assessment Panel

Interpretation Interpretation Act 1987 (NSW) Act IPC

Infrastructure Planning Commission

IR Act 1996

Industrial Relations Act 1996 (NSW)

IUCN

International Union for Conservation of Nature

JRPP

joint regional planning panel

LEC Act

Land and Environment Court Act 1979 (NSW)

LEP

Local Environmental Plan

LES

local environmental study

LG Act 1919 Local Government Act 1919 (NSW) LG Act 1993 Local Government Act 1993 (NSW) LGA

Local Government Area

LGAT

Local Government Appeals Tribunal

LGERA

Local Government and Environmental Reports of Australia

LGR

Local Government Reports (NSW)

LGRA

Local Government Reports of Australia

LGSA

Local Government and Shires Association of NSW

MARA Act

Miscellaneous (Planning) Repeal and Amendment Act No 205 of 1979 (NSW)

Migration Act Migration Act 1958 (Cth) Mining Act

Mining Act 1906 (NSW)

Model Provisions

Environmental Planning and Assessment Model Provisions 1980

NEPA

National Environmental Policy Act 1970 (USA)

NPW Act

National Parks and Wildlife Act 1974 (NSW)

NSWCA

NSW Court of Appeal

NSWLEC

Land and Environment Court of NSW

NSWLR

NSW Law Reports

NSWSC

NSW Supreme Court

OED

Oxford English Dictionary

OEH

Office of Environment and Heritage

PAC

Planning Assessment Commission

POEA Act

Protection of the Environment Administration Act 1991 (NSW)

POEO Act

Protection of the Environment Operations Act 1997 (NSW)

PSO

Planning Scheme Ordinance

Pt

Part

REP

Regional Environmental Plan

RF EME

radio frequency electromagnetic energy

RFI Act

Rivers and Foreshore Improvement Act 1948 (NSW)

ROC

Right of Carriageway

ROH

Royal Opera House

RoI Act

Recovery of Imposts Act 1963 (NSW)

ROW

right of way

RPA

Relevant Planning Authority

s

section

SEE

Statement of Environmental Effects

SEPP

State Environmental Planning Policy

SIS

Species Impact Statement

SPA

State Planning Authority

SPCC

State Pollution Control Commission

SSD

State significant development

SSI

State significant infrastructure

Standard Instrument

Standard Instrument (Local Environmental Plans) Order 2006 (NSW)

TCP Act

Town and Country Planning Act 1990 (UK)

TSC Act

Threatened Species Conservation Act 1995 (NSW)

UNEP

United Nations Environment Programme

UNCED

United Nations Conference on Environment and Development

WM Act

Water Management Act 2000 (NSW)

WWF

World Wildlife Fund

PART A BACKGROUND TO PLANNING LAW ¶1-010 What is planning? Planning, in a general sense, is a fundamental process of management in charting and guiding future directions while balancing needs or demands with available resources. The planning process has four elements: (1) identifying goals or objectives to be achieved (2) formulating strategies to achieve them (3) arranging or creating the means required for this, and (4) implementing, directing and monitoring strategies in a coherent, consistent, efficient and effective manner. In a narrower sense, planning refers to these elements when applied to land use, settlement patterns, natural resources and the spatial dimensions of development. Underpinning this aspect of planning is the use of the process to achieve beneficial outcomes for the broader community. It is in this sense that planning will henceforth be used in this book.

¶1-020 Planning definitions The Planning Institute of Australia defines planning as follows:1 “Planning is the process of making decisions to guide future action. The planning profession (which is also referred to as ‘urban planning’ or ‘town planning’) is specifically concerned with shaping cities, towns and regions by managing development,

infrastructure and services. Planners are professionals who specialise in developing strategies and designing the communities in which we live, work and play. Balancing the built and natural environment, community needs, cultural significance, and economic sustainability, planners aim to improve our quality of life and create vibrant communities. As well as assessing development proposals and devising policies to guide future development, planners work in areas as diverse as housing, energy, health, education, communications, leisure, tourism and transport. They create new, and revitalise existing, public spaces, conserve places of heritage and enhance community value. The important work planners do is gaining increasing recognition as communities place greater emphasis on ‘liveability’, environmental sustainability, the design and feel of places and public space. People and decision-makers are also increasingly interested in managing urban growth effectively in order to build a nation worth inheriting for future generations.” The American Planning Association has defined planning similarly, but with a greater emphasis on the beneficial outcomes sought to be achieved by planning, as follows:2 “Planning, also called urban planning or city and regional planning, is a dynamic profession that works to improve the welfare of people and their communities by creating more convenient, equitable, healthful, efficient, and attractive places for present and future generations. Planning enables civic leaders, businesses, and citizens to play a meaningful role in creating communities that enrich people’s lives. Good planning helps create communities that offer better choices for where and how people live. Planning helps communities to envision their future. It helps them find the right balance of new development and essential services, environmental protection, and innovative change.”

Earlier and more traditional definitions lacked the more modern emphasis on environmental protection, social equity, sustainable development, and the enhancement of economic and employment opportunities. As Lewis Keeble wrote:3 “Town and Country Planning might be described as the art and science of ordering the use of land and the character and siting of buildings and communication routes so as to secure the maximum practicable degree of economy, convenience and beauty. … Planning, as a complete process, requires all aspects and implications of the physical development of land to be taken into account and fitted into a pattern devised with the object of making a region or a community as a whole into an effective, and within limits, self-contained organism. There are four characteristics of successful Planning which are of prime importance and to which, throughout this book, we shall constantly return. They are: (1) The promotion of accessibility: accessibility of homes to work, shops, schools and entertainment, of industry to sources of labour, power and raw materials and so on. It would hardly be going too far to call Planning a study in accessibility. (2) The employment of resources as economically as possible, so as to achieve the greatest possible measure of improvement with necessarily limited means. (3) The separation of incompatible land uses from each other and the association of compatible or mutually helpful uses. (4) The carrying out of all development in as visually pleasant a manner as is practicable. …

Planning has both social and economic aims. Socially, successful Planning tends to make people’s lives happier because it results in a physical environment which conduces to health, which allows convenient and safe passage from place to place, which facilitates social intercourse and which has visual attractiveness. The economic results of good Planning also conduce to increased happiness, though not quite so directly. A proper spatial relationship between the communities in a region and the constituent parts of a town, compactness of development, and an efficient arrangement of communication routes all result in human activities being carried on more efficiently and less wastefully, and thus increase wealth; but the results do not obviously increase the welfare of a particular individual at a particular moment of time, so these advantages often go unrecognised.” Footnotes 1

Planning Institute of Australia, accessed 6 April 2012, What is Planning?, see www.planning.org.au/becomeaplanner.

2

American Planning Association, accessed 6 April 2012, What is Planning?, see www.planning.org/aboutplanning/whatisplanning.htm.

3

Keeble, L, 1969, Principles and Practice of Town and Country Planning, The Estates Gazette Ltd, London, 4th edition, p 1.

¶1-030 Implementation of planning Planning is an activity undertaken by government authorities, private business and community groups. However, the majority of planning is undertaken by government authorities. In the Australian context, this means the state and territory governments, and local government

authorities. As an activity of government authorities, planning relies for its implementation on a range of tools: • regulation • encouragement • direct action • incentives • disincentives, and • cooperative partnerships. While increasing emphasis is given to non-regulatory implementation tools, regulation remains the principal implementation tool for planning. It is the regulatory implementation of planning that is the role of planning law. Where planning uses regulatory tools for implementation, it highlights the role of planning as a form of government intervention into the activities of private developers and private landowners to achieve public or community outcomes and not simply private outcomes. The spectrum of philosophies between total state control and complete freedom of private action often underlies debates on the role of planning. In a market-based economy such as Australia, there is a general acceptance that planning serves an important social role, although the more extreme of the so-called “economic rationalists” seek to lessen or eliminate its role. In addition to a philosophical perspective of planning, there is a significant debate regarding the efficiency of some aspects of planning, that is, whether the costs and disbenefits of a particular approach to planning or a particular planning control are justified to achieve the benefits of the planning objective, or whether there are other more efficient and effective means to achieve that same planning objective. The positive contribution of planning is often ignored or forgotten by

critics of particular examples. In working towards improving communities and the lives of people in an ecologically sustainable context, planning is indeed a civilising force.

¶1-040 English planning law and its influence As in many other areas of the Australian legal system and legislation, the English law has provided foundational concepts and approaches which have significantly influenced the development of planning law in Australia. Public health, housing and planning schemes The driving force for planning legislation in the United Kingdom (UK) related to public health concerns of unsanitary housing conditions in late Victorian cities. The first UK planning legislation was the Housing, Town Planning etc Act 1909 (UK) (1909 UK Act), which was designed to address housing issues. However, s 54 of the 1909 UK Act also gave local authorities a discretion to prepare planning schemes in suburban areas. The preparation of schemes proved a lengthy process and the Housing, Town Planning, etc Act 1919 (UK) introduced the concept of interim development control following a council resolving to prepare a planning scheme. The Town and Country Planning Act 1932 (UK) (1932 UK Act) enabled local authorities to prepare planning schemes for any land in England and Wales, not just suburban land. The planning schemes under the 1932 UK Act were statutory schemes with binding force and based upon a prescriptive zoning approach. English planning law, from its inception through to the 1970s, was bedevilled by debates about betterment taxation of planning gain from private land owners and compensation for owners adversely affected by planning blight, with successive schemes being introduced and then repealed by successive governments from the 1932 UK Act until the last scheme was repealed in 1991. Introduction of development plans in the United Kingdom The Town and Country Planning Act 1947 (UK) (1947 UK Act) replaced the concept of statutory planning schemes with flexible

advisory development plans. The next significant change was the Town and Country Planning Act 1968 (UK) (1968 UK Act), which introduced a system of two-tiered development plans consisting of Structure Plans and Local Plans to replace the single development plan under the 1947 UK Act. The 1968 UK Act sought to separate broad planning policy from local detail by providing that Structure Plans were to address policy and general proposals (strategic planning), while the detailed implementation of these policies was left to Local Plans. In addition, the scope of planning was extended to encompass social, transportation, economic and environmental considerations, with an emphasis on regional planning. The 1968 UK Act came about following the release of a 1965 Planning Advisory Group report on “The Future of Development Plans”. The UK law was then consolidated in 1971 and further consolidated again in 1990 (Town and Country Planning Act 1990 (UK)). This has been supplemented by the Planning Act 2008 (UK), which establishes the Infrastructure Planning Commission and establishes an approval process for naturally significant infrastructure based on statements of national policy.4 Elements of the planning system in the United Kingdom Malcolm Grant5 has identified three distinctive elements of the UK planning system: (1) Plans are not legally binding, and hence, there is wide discretion in planning decision-making. As a result, there is a limited role for the law to provide accountability. (2) The scope for control over new development is wide-reaching. With few exceptions, planning permission is required for all developments. The result is that many comparatively minor developments are subject to the development control system. (3) The system is highly centralised with strong control by the central government, and limited scope for local initiatives and innovations. Footnotes

Footnotes 4

For reviews of the historical evolution of UK planning legislation, see Purdue, M, 1977, Cases and Materials on Planning Law, Sweet and Maxwell, London; Duxbury, RMC, 1999, Telling and Duxbury’s Planning Law and Practice, 11th edition, Butterworths, London, p 1; JJ Moore, V, 1987, A Practical Approach to Planning Law, 5th edition, Blackstone Press Ltd, London, p 1–8.

5

Grant, M, 1992, “Planning Law and the British Land Use Planning System”, Town Planning Review, Volume 63, p 3– 12.

¶1-050 Planning law in New South Wales The first general planning legislation in New South Wales was the Local Government (Town and Country Planning) Amendment Act 1945 No 21 (NSW) which inserted into the Local Government Act 1919 (NSW) (LG Act 1919) a new Pt 12A entitled “Town and Country Planning Schemes”. There were some precursors, primarily within the original LG Act 1919, which provided for limited planning powers in s 309 under which a council could obtain a proclamation from the Governor for residential districts and the power to approve new roads and subdivisions (s 323–s 333). In 1934, the Town and Country Planning Institute of NSW was established. One of its first activities was to prepare draft planning legislation for presentation to the government.6 The introduction of planning legislation was a major commitment on the election policy in 1941 of WJ McKell, the then Opposition Leader and then Premier of New South Wales after the 1941 State election.7 In introducing the Local Government (Town and Country Planning) Amendment Bill 1947 (NSW), the then Minister for Local Government, Mr Joe Cahill said:8

“Briefly, the bill proposes to amend the Local Government Act to provide for: (1) the preparation of town and country planning schemes by the municipal and shire councils, including the Municipal Council of Sydney, and county councils constituted for the purpose, with the assistance of committees to be specially appointed by them and of professional town planners holding qualifications which will be prescribed by ordinance. (2) The preparation by the Minister of a town planning scheme for the County of Cumberland, which embraces sixty-seven municipalities and shires, and is bounded by the Pacific Ocean, the Hawkesbury River, the Nepean River and a line running easterly to near Bulli on the South Coast. This scheme will be prepared to the stage that it can be handed over to the councils to fill in further detail. (3) The setting up of a town and country planning advisory committee of seven members whose function it will be to advise the Minister and councils in connection with the preparation of schemes and the administration of the Act. … The principles of town and country planning may be stated simply as an attempt to regulate, in advance, the orderly arrangement and use of land in town and country, so as to promote, for the greatest good of the greatest number, the improvement of community life and of the environment in which our people live; to enable the people to enjoy the benefits of social security, good health, safety, education, recreation, employment, and shelter, good communications, public utilities and amenities. It has been said that man is the product of the environment in which he lives. Much has been said, but little has been done, to improve the environment. This bill, and certain provisions proposed to be included in a separate measure to amend the Local Government Act, will provide the legislative means to effect such improvement.”

In the Minister’s Second Reading speech, a planning scheme for the entire County of Cumberland was prepared by the Cumberland County Council in 1948 and publicly exhibited on two occasions. The County of Cumberland Planning Scheme (County Scheme) was given legislative force by the Local Government (Amendment) Act 1951 No 18 (NSW), which received assent on 27 June 1951. The County Scheme provided an outline plan for Metropolitan Sydney based on a zoning scheme. It included zones for Living Areas, Business and Commercial Centres, Industrial, Rural Area, Green Belt and Special Uses.9 The Local Government (Town and Country Planning) Amendment Act 1945 (NSW) largely followed the model of the 1932 UK law with its provisions for statutory planning schemes with legal force. However, the progress in implementing the 1945 planning legislation proved to be slow, particularly in the context of the post-World War Two growth of urban Sydney. As a consequence, it prompted significant changes, resulting in the Local Government (Town and Country Planning) Amendment Act 1962 (NSW) (1962 Amendments). The principal provisions of these changes were that: • councils could commence the preparation of a scheme merely by passing a resolution, rather than requiring Ministerial approval and the formation of a planning committee • councils would prepare the scheme themselves, rather than have a planning committee prepare it • a draft planning scheme would be publicly exhibited once rather than twice • after receipt of objections, a council should hear objectors and make a recommendation on objections, rather than by Ministerial inquiries • the interim development control system was revised by empowering the Minister to make Interim Development Orders (IDOs), rather than relying on uniform interim development provisions in Ordinance No 105

• the Minister was empowered under s 342Y to suspend the operations of a prescribed planning scheme and make an IDO to insert new alternative planning controls, and • the process of making an IDO was one for the Minister, without any requirement for public exhibition or involvement by the local council. In 1963, the State Planning Authority Act 1963 No 59 (NSW) was enacted to establish the State Planning Authority (SPA), which replaced the Cumberland County Council, and the Town and Country Planning Advisory Committee. Despite the provisions in the 1962 Amendments, the progress in preparing prescribed planning schemes still remained slow and cumbersome while the Minister, now equipped with a state planning agency in the SPA, used the power of making IDOs and the suspension of prescribed planning schemes as an alternative (and quicker) method of creating or changing planning controls. At the same time, the SPA pioneered innovative planning initiatives, with the Sydney Region Outline Plan in 1968 and the development of the Macarthur Growth Centre at Campbelltown in the 1970s. Footnotes 6

Starke, JG, 1966, The Law of Town and Country Planning in New South Wales, Butterworths, Sydney, p 37.

7

ibid, p 38.

8

Parliament of New South Wales, 13 February 1945, New South Wales Parliamentary Debates (Second Series) Session 1944–1945, Volume CLXXVI, p 1767–1768.

9

The County Scheme is described in detail in Winston, D, 1957, Sydney’s Great Experiment. The Progress of the Cumberland County Plan, Angus and Robertson, Sydney.

¶1-060 Background to the Environmental Planning and Assessment Act 1979 The Environmental Planning and Assessment Act 1979 No 203 (NSW), together with its cognate Acts, the Land and Environment Court Act 1979 No 204 (NSW) and the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205 (NSW), received assent on 21 December 1979 and commenced operation on 1 September 1980, replacing the former Pt 12A of the LG Act 1919 and the New South Wales Planning and Environment Commission Act 1974 No 43 (NSW). The process of the preparation of this legislation was extensive. Legislation process — key landmarks Key landmarks in the process of preparing the legislation were as follows: • In March 1973, the Deputy Premier and Minister for Local Government and Highways, Sir Charles Cutler MLA, established a Government Parties Committee to review the SPA in light of concerns regarding delays and the need for prompt decisions. The Committee reported in July 1973 and recommended the abolition of the SPA and the establishment of a Ministry of Planning and Environment headed by a Coordinator-General of Planning. Sir Charles Cutler submitted a Cabinet Minute in October 1973 to implement these recommendations. In December 1975, the newly appointed Minister for Planning and Environment, Sir John Fuller MLC, established a public service committee headed by Mr Gerry Gleeson to provide advice on the implementation of the government’s decision to combine planning and environmental activities into one ministry. The Gleeson Committee recommended in February 1974 the establishment of two commissions — a State Land and Environmental Planning Commission and the existing State Pollution Control Commission.

• In April 1974, the NSW Parliament enacted the New South Wales Planning and Environment Commission Act 1974 No 43 (NSW). Aside from abolishing the SPA and replacing it with a fivemember commission, the principal provision of this Act was the requirement under s 20 to undertake a review of the planning system and report within one year. • The review requirement prompted the preparation of two public discussion papers — the Green Book (Towards a New Planning System for NSW, November 1974) and the Blue Book (Proposals for a New Environmental Planning System for NSW, June 1974). These were prepared by Mr Nigel Ashton as the Special Advisor to the Minister and former Chairman of the SPA operating with a separate unit. Two internal working reports, prepared by the new NSW Planning and Environment Commission under the Chairmanship of Dr Leigh Pownall, were a prelude to the Commission’s formal s 20 report and released in November 1975. The s 20 report proposed a division of responsibilities between State and local government, with the State responsible for State Strategies and Regional Structure Plans, while local government would be responsible for Local Structure Plans and Local Detailed Plans. • In September 1975, Sir John Fuller, as Minister for Planning and Environment, sought Cabinet approval to the preparation of new legislation, and on 16 October 1975, the Premier, Mr Tom Lewis MLA, announced that Cabinet had approved the introduction of an Environmental Impact Assessment Bill. The task of preparing the drafting instruction fell on the team headed by Nigel Ashton. On 24 March 1976, the government introduced into parliament the Environmental Planning Bill 1976 (NSW), which lapsed with the dissolution of parliament for the General Elections on 1 May 1976. This resulted in a change of government with the election of Mr Neville Wran QC MLA as Premier. • The early period of the Wran Government saw the division of portfolios between the Minister for Local Government and

Planning, Mr Harry Jensen MLA, and Minister for Lands and Environment, Mr Bill Crabtree MLA, and the jockeying for power between these two ministers. This resulted in the Premier recombining the planning and environment portfolios with the appointment of Mr Paul Landa MLC as Minister for Planning and Environment on 9 August 1976. Paul Landa appointed a Planning and Environment Legislation Review Committee in August 1976, chaired by the author (John Whitehouse), which undertook a complete review, reporting back to the Minister with draft legislation in July 1977. A Cabinet Minister was submitted in April 1978 and, after extensive Cabinet consideration, Cabinet approval was granted in October 1978 for the introduction of the legislation into Parliament. But in December 1978, Cabinet deferred the introduction of the Bills into parliament in what was portrayed as a reaction to Paul Landa’s relentlessness and determined push for the new planning legislation by some of his more sceptical Cabinet colleagues. The draft Bills were approved by Cabinet in March 1979 and tabled in the Legislative Assembly on 17 April 1979 so as to enable a three-month period of public consultation and comment. • Following an extensive program of public consultation of 138 public meetings and 159 written submissions, the Bill was revised and re-introduced into parliament on 13 November 1979 and passed, receiving assent on 22 December 1979. The enactment of the new legislation was a testimony to the commitment, skills and principles of the Minister for Planning and Environment, Paul Landa, and the support of the Premier of NSW, Neville Wran, who convinced an oft sceptical Cabinet to endorse the legislation. It also benefited from the bipartisanship shown by the Opposition Leader in the Legislative Council, Sir John Fuller (himself a former Minister for Planning and Environment who had initiated the process of reform of the planning legislation), in enabling passage of the legislation through the Opposition-controlled Upper House. In his Second Reading Speech, Paul Landa said:10

“The essential aim of the bills is to create a system of environmental planning under which decisions on land use and resource management are made within the physical capacity of the environment in order to promote the economic and social welfare of the people of New South Wales. The eight principal objectives of the bills met with widespread public support. Those objectives are, first, to broaden the scope of planning effectively to embrace economic, social and ecological considerations in the preparation of environmental plans and in development control; second, to provide positive guidelines for the development process, to speed up decisionmaking, to foster investment and facilitate economic growth; third, to authorize the preparation of different types and forms of environmental plans each respectively designed to deal with State, regional and local planning issues and problems; fourth, to ensure that the State is principally concerned with matters of policy and objectives rather than matters of detailed local land use; fifth, to co-ordinate, especially at a State and regional level, the development programmes of public authorities; sixth, to provide an opportunity for public involvement in the planning process; seventh, to provide for a more simplified administration of the system of planning decision making; and eighth, to provide a system for the assessment of the environmental impacts of proposals that would significantly affect the environment. … The deficiencies of existing legislation lie in the following areas: its concept of land use planning is too narrow; its relationship and orientation to local government stifle initiatives for State and regional planning and inevitably involve the State unnecessarily in local planning issues; its failure to demarcate respective responsibilities for State and local government in environmental planning decision-making; its concept of planning instruments is too rigid; its failure to integrate techniques for land use planning with environmental assessment and protection; its failure to give members of the public any meaningful opportunity to participate in planning decision-making; its failure to co-ordinate activities of the

public and private sectors involved in the development industry; its failure to provide a uniform and rationalized code for development control causing unnecessary delays and costs in the development process; and its failure to provide the most appropriate organizational and administrative support at the State level. The bills now before the House deliberately seek to overcome all of these deficiencies in the existing legislation by making the following provisions: (a) adopting the comprehensive concept of environmental planning, the nature and content of which is to be understood in the light of clause 5 of the Environmental Planning and Assessment Bill which enunciates the objects of the Act. In essence it involves decision-making for planned development and conservation to achieve economic and social growth within the physical environment’s tolerable limits; (b) enabling plans and policies to be developed at the level of, or from the perspective of, issues or interests of State or regional significance in addition to local significance; (c) requiring the Department of Environment and Planning to devote its attention to issues having State or regional significance and vesting local government with unprecedented autonomy for local planning; (d) by enabling a much more flexible approach to be adopted as to the format, content and presentation of planning instruments to overcome what one expert commentator on the Australian planning systems has described as the ordinance and map obsession; (e) by predicting planning decisions to a prior environmental study and assessment so that decisions affecting the environment can be taken openly, consciously and with full knowledge of probable consequences of implementing the decisions;

(f) by conferring equal opportunity on all members of the community to participate in decision making under the new legislation concerning: (1) the contents of environmental studies; (2) the aims and objectives to be adopted by draft planning instruments; (3) the contents of draft planning instruments; (4) development applications requiring prior publicity before determination; (5) development applications for designated developments; (6) environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment Bill. Additionally, objectors to applications for designated development can appeal to the Land and Environment Court of NSW against the grant of development consent and any member of the public is given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws; (g) by requiring public authorities to assist in and contribute to the preparation of environmental studies and draft plans coordination of public sector activities can be enhanced, particularly in the context of regional planning, and by establishing the advisory committees under division 5 of part II of the Environmental Planning and Assessment Bill the development activities of both the public and private sectors can be discussed, planned for and monitored; (h) part IV of the Environmental Planning and Assessment Bill provides for a uniform code for the processing of all applications to carry out development in accordance with

planning instruments. This code is supplemented by the new appeal procedures contained in the Land and Environment Court Bill which enables all aspects of development appeals, both factual and legal, to be expeditiously and finally resolved by the court; (i) by establishing a departmental structure for the State’s planning responsibility having the integrated functions of environmental planning and environmental assessment at the State and regional levels of significance the new planning legislation will have an adequate administrative and organizational basis.” Footnotes 10

NSW Parliament, 21 November 1979, Legislative Council Hansard, p 3346 and p 3351–3.

¶1-070 New legislation — key underlying features Paul Landa particularly championed a number of key underlying features of the new legislation. These included: • a clear acceptance of Ministerial responsibility for policy, rather than seeking to hide behind bureaucratic artifices • ensuring that policy and decisions were based on expert professional advice • an integration of environmental issues in the planning process • mandatory requirements for public involvement and participation in the planning process • ensuring that stakeholders (including councils, applicants and the community at large) had enforceable rights and obligations, rather

than being reliant on the unenforceable discretionary guidelines and procedures and, in effect, the grace and favour of Ministers and Departmental officials • providing a significant role for the law in protecting the rights of stakeholders and ensuring compliance with the legislation, including the establishment of a specialist court • providing for open standing for civil enforcement of the legislation, despite concerns about opening the flood gates to litigation, and • seeking a partnership with local government, and greater clarity in the respective roles of the State and local government.

¶1-080 Key issues in planning law Patrick McAuslan has criticised the stress placed on property as the focus of legal attention in planning law.11 McAuslan identifies four themes or aspects of planning law which he considers have acted as impediments to the achievement of better planning outcomes. These include the: (1) stress placed on property as the focus of legal attention (2) constant increase in power and discretion conferred on officials with few, if any, relevant controls (3) emphasis placed on formal procedures in parts of the decisionmaking process (at the expense of better planning outcomes), and (4) complexity of the law. Although McAuslan identified these issues nearly 40 years ago, they still remain true today. The following issues could also be added: • a lack of Ministerial responsibility for policy and the continual use of bureaucratic artifices to both make decisions and policy

• the diminution of the role of professionalism and expert advice as the foundation for decision-making (often accompanied by a deskilling of key decision-making bodies) • the limited scope of planning consideration with often limited consideration of ecological, and social and economic factors • the distribution of functions and powers between State and local government, and power and values struggles between the different levels of government • the limited nature of public participation, confined usually to public information • the problem of time delays in decision-making • the emphasis on negative controls • the limited extent of coordination with service and utility providers, and • a predilection for organisational change as a substitute for policy change. McAuslan concluded the following:12 “Planning law provides the framework of the planning process and its values permeate and inevitably shape the way the process operates. What is needed therefore are lawyers educated to realise that the law has long standing connections with human rights and civil liberties, and that a system of planning founded on those principles might make a better contribution to the solution of urban problems than one founded, as now, on property. Lawyers with such an orientation could reinforce all those undercurrents in planning which have a similar orientation, and provide them with the creative skill, and the political backing that would be needed to turn their ideas into reality. The alternative is for polarisation between planners and planned to continue. …” Footnotes

Footnotes 11

McAuslan, JPWB, 1974, “Planning Law’s Contribution to the Problems of an Urban Society”, Modern Law Review, Volume 37, p 134–153.

12

ibid, p 152–153.

PART B PLANNING AND RELATED LEGISLATION ¶2-010 General scheme of the Environmental Planning and Assessment Act 1979 The Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is the principal environmental planning legislation in New South Wales. The EPA Act is a “framework law”, that is, it provides the broad scheme for planning decision-making. In particular, it does the following: • it outlines the objectives of the Act • it authorises the making of plans, known as environmental planning instruments (EPIs) (including State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs)) under Pt 3 • it authorises the legal scope and power of plans, and how they are made under Pt 3 • where a plan provides that something requires consent for it to be carried out, the EPA Act provides the process for obtaining that consent with a development application under Pt 4, and • a plan may absolutely prohibit certain developments.

¶2-020 Assessment of desired developments Essentially, the EPA Act can be viewed as a two-stage sieve. The first level is a coarse sieve of the plans or EPIs which provide a higher level and broad delineation of desired developments. This is provided for in Pt 3 of the Act. The second level is the development assessment

process, where developments considered by a plan to be potentially appropriate can be evaluated in closer and specific detail. This is provided for in Pt 4 of the Act. Part 4 only operates where a plan has been made and that plan provides that an action can occur (provided it has development consent). As a safety net to assess actions which do not require development assessment under Pt 4 (but are not prohibited by a plan), the EPA Act has a process for environmental assessment of such actions under Pt 5. Part 5 does not duplicate the development assessment process of Pt 4, but only operates for actions not prohibited and not requiring a development application. As a later addition, the EPA Act has a third stream (or level) for assessing actions which applies only to what are declared State Significant Infrastructure. This third stream is contained in Pt 5.1. The EPA Act also has detailed provisions relating to building control under Pt 4A requiring certificates for buildings.

¶2-030 Processes, delegation and outcomes The EPA Act largely deals with processes, particularly in relation to: • who makes planning decisions • how planning decisions are made, and • what rights and obligations stakeholders have in the making of planning decisions. Significantly, the administration of the EPA Act is delegated to local government. This shared responsibility for the planning system between the two levels of State and local government has often been a source of tension and conflict. As a framework Act, the EPA Act is largely silent about outcomes, save for the objects of the Act. Its role is to provide the framework within which stakeholders can create or influence the outcomes they seek or aspire to.

¶2-040 Relationship of planning law to other legislation Planning law is only one of many laws that affect the development and use of land. Many other laws have been enacted regulating development and land use. These additional laws fall into the following categories: • legislation regulating a particular resource generally throughout the state (eg laws relating to mining, forestry, wildlife or cultural resources) • legislation regulating a particular geographical area (eg the coastal zone, the Western Division or water catchment areas) • legislation regulating developments which may affect or impinge upon a particular resource or a particular geographical area (eg land within a specified distance of a river or stream), and • legislation regulating the developments and activities of a particular agency, department or authority (usually a government agency or entity owned and controlled by the government). The New South Wales statutes are replete with proliferating legislation falling into the categories referred to above. What then is the relationship of planning legislation to these other laws regulating or affecting development? The EPA Act addresses its interaction with other legislation only tangentially and by inference in the objects of the Act in s 5. An extract of these objects is presented below. “5. Objects The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and

economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and …” Further, s 4(1) expansively defines “land” as follows: “land includes: (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land.” In addition, s 6 provides that the Act binds the Crown in all of its capacities, so far as the legislative power of the NSW Parliament

permits. These three provisions mentioned above add weight to the inference of universal applicability of the Act.

¶2-050 Planning legislation and other laws regulating development The courts have considered the relationship between planning legislation and other laws regulating development in Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; (1974) 29 LGRA 323 (AMC v Wyong). AMC v Wyong was a decision of the Judicial Committee of the Privy Council at a time when appeals from the Supreme Court of NSW lay with the Privy Council in London, rather than the current position with the High Court of Australia as the ultimate appellate court. The case related to proceedings commenced by Wyong Shire Council. The Council was seeking a declaration that the respondent, Associated Minerals Consolidated Limited (AMC), could not use certain lands at North Entrance Peninsula (near Norah Heads on the New South Wales Central Coast) comprising forested high sand dunes for the purposes of mining without prior consent from the Council, and likewise, that the company could not cut down and remove any trees on the land without the prior consent of the Council. Further, the Council sought injunctions restraining the company from mining and tree removal without Council’s prior consent. The company was proposing to mine the area for the heavy mineral sands of rutile and zircon by open cut methods by means of a floating dredge. The area comprised high sand dunes near to the coast covered in both rainforest and Angophora forest of considerable beauty and scientific value. The land was Crown land. The company had been granted mining leases under the New South Wales mining legislation and, within the area, it had conducted exploratory drilling. In 1969, a dredge was moved to the area and mining operations commenced. A second dredge was moved to the area in 1971. Planning control was introduced in Wyong Shire with the commencement of Ordinance No 105 under the then Local

Government Act 1919 (NSW) (LG Act 1919) in 1961. Ordinance No 105 required interim development approval from the Council for development not otherwise permitted by the Ordinance. No application was lodged by the company under Ordinance No 105, nor was any interim development approval granted by the Council to the company. In 1968, the Shire of Wyong Planning Scheme Ordinance (Wyong PSO), made under Pt 12A of the LG Act 1919, commenced to operate. The Wyong PSO required development consent for mining, subject to exemptions for existing uses of land prior to the commencement of the Wyong PSO (but not the existing use commenced after 1961 in contravention of Ordinance No 105) and for certain development by the owner or licensee of a mine. No development consent under Wyong PSO was sought or granted. Additionally, Council had made a series of Tree Preservation Orders, the making of which was authorised by the Wyong PSO. In defending itself against the Council’s action, one of the grounds submitted by the company was that mining is regulated by a special Act, namely the Mining Act 1906 (NSW) (Mining Act), and that operations authorised or carried out under the Mining Act were entirely outside the operation of the planning law, as then provided in Pt 12A of the LG Act 1919 and the Wyong PSO. At first instance, the case came before Hope J in the Equity Division of the Supreme Court of NSW (Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114; (1972) 25 LGRA 305 (Wyong S.C. v AMC)). In relation to this ground of the company, Hope J rejected the company’s submission that the planning law did not apply to matters regulated by the Mining Act (at p 316–317). The Council was successful before Hope J who granted injunctions against the company. On appeal to the Privy Council, the company was again unsuccessful. In the Privy Council, the company argued, among other issues, that the planning legislation did not apply to activities regulated under the Mining Act. Lord Wilberforce, when delivering the speech on behalf of the Privy Council, stated at p 553– 555: “Further narrative details will become necessary in relation to

particular defences of the appellants but enough has now been stated to enable their Lordships to deal with the appellants’ first main contention. This is that Pt XIIA of the Local Government Act 1919, does not authorise the inclusion in a planning scheme ordinance of any provision whereby the holder of a mining lease issued pursuant to the Mining Act 1906, can be prevented from exercising the rights conferred and fulfilling the obligations imposed on him by the lease or by the Mining Act and regulations made under it. This contention is presented in two ways. First, — this is the more extreme argument — it is said that the Local Government Act 1919, Part XIIA, does not apply to mining land at all, the latter being governed exclusively and comprehensively by its own code as stated in the mining legislation. Secondly, if the first argument is not acceptable in its full width, it is said that the planning ordinance of the Shire of Wyong should not be construed as taking away rights validly conferred upon the holders of mining leases to exploit their holdings in accordance with the terms of the leases and of the mining legislation. Their Lordships are unable to accept the contention in either form. In its wider presentation the argument raises the issue, which frequently arises, of the interrelation in law of two statutes whose field of application is different, where the later statute does not expressly repeal or override the earlier. The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the preexisting legislation, so that each may operate within its respective field? … The present case is not one of a private legislative bargain for the benefit of individuals, which, it could be said, should not be disturbed by later general legislation … Nor is it one of a special class or area or subject, as to which the question might be whether it falls within a general, or wider, class or area or subject.

It is rather one of two public general Acts as to which the question is, first, whether there is any inconsistency between their provisions, and secondly, if there is, whether the earlier (the Mining Act), is pro tanto repealed by the later (the Local Government Act, Pt XIIA). Both Acts apply or are capable of being applied with complete generality to land in the State of New South Wales. Can they, in relation to a given piece of land, co-exist? In their Lordships’ opinion they clearly can and do. The Acts have different purposes, each of which is capable of being fulfilled. The purpose of the mining legislation is to enable persons to acquire a legal right or title to enter upon, to prospect, and ultimately to mine, land in the state. It also — and this is important — regulates the conditions under which, as between private citizens, rights may be acquired and used. In relation to the subject lands, it provides the title of mining enterprises to enter upon and to work land of the Crown. The planning legislation, i.e. Pt XIIA of the Local Government Act 1919, is in its turn capable of being applied to all land in the state including Crown land, without exception. It enables restrictions as to use to be imposed upon all such land. Not only can such legislation restricting users co-exist with the rights of persons, whether derived from the Crown or from private owners, to mine land, but the whole purpose which underlies the planning legislation would be defeated if it did not. Planning by its nature presupposes the possibility of competing uses for land and endeavours to regulate these in the public interest. The Local Government Act itself clearly points toward the generality of its application, and away from any suggestion that there exists a large area of exclusion from it. The definition of land contained in Pt XIIA, s. 342B, is stated to include any estate or interest in land and any right in or affecting land and also all lands of the Crown. There is no indication anywhere in that Part of an intention to exclude land used, or usable, for mining, or to reserve the application of mining legislation. Section 10 of the Act sets out a list of enactments which are stated not to be affected by the Act: the Mining Act 1906, is not mentioned, and, while it is true that this section does not form part of Pt XIIA, its application is general

and it has several times been amended since Pt XIIA was introduced in 1945, without adding the Mining Act 1906, to the list of preserved statutes. It mentions some statutes, eg., the Liquor Act 1912 — which, in spite of preservation, must clearly operate subject to planning restrictions. … Their Lordships therefore conclude that Pt XIIA and the planning scheme made under it effectively operated over all the subject lands.”

¶2-060 Principles regarding the relationship between planning and other laws The key principles derived from Wyong S.C. v AMC regarding the relationship between planning and other legislation are set out below: Principle 1: The legislative intention in the New South Wales planning legislation is to operate as an additional layer of legislation on top of other laws applying to specific categories of developments, such as mining. There is generally no legislative intention that general planning law is displaced by laws dealing with specific subjects. Principle 2: A corollary of the above, is that a specific legislative intention can exist demonstrating that the legislature intended to displace planning law in a specific instance, but such intention would generally need to be evidenced by a specific statutory provision. Principle 3: Planning legislation co-exists with laws dealing with specific types of developments. Indeed, the whole purpose of planning legislation would be defeated if it did not. Principle 4: Planning law presupposes the possibility of competing land uses and seeks to regulate these in the public interest. Principle 5: Planning law does not invalidate or nullify rights under other legislation, but requires the holders of such rights to operate in conformity with planning legislation. As indicated in Principle 1, the legislature may demonstrate a clear

intention to displace the application of planning law in relation to specific matters, either wholly or in part. Examples of clear legislative intention to displace planning law, either wholly or in part, are as follows: • s 381 of the Mining Act 1992 (NSW) provides that an EPI (other than a SEPP) cannot prevent a person from carrying out prospecting operations. • s 7 of the Snowy Mountains Cloud Seeding Trial Act 2004 (NSW) provides that the EPA Act does not apply to authorised cloud seeding operations. • under s 23 of the Nation Building and Jobs Plan (State Infrastructure Delivery) Act 2009 (NSW), the Coordinator-General may, by order, declare that a specified infrastructure project, or an infrastructure project of a specified class, is exempt from all or any specified “development control legislation”. Development control legislation is defined under s 22 of the Act as including the EPA Act (see also s 25 for the effects of an order). • s 26 of the Lake Illawarra Authority Act 1987 (NSW) provides that development works under that Act are an “activity” under Pt 5 of the EPA Act and hence, no consent under Pt 4 of the EPA Act is required. • s 37A of the State Owned Corporations Act 1989 (NSW) provides that the Minister administering the EPA Act may certify that development by a State Owned Corporation is of state or regional significance. In such cases, Pt 5 of the EPA Act applies to the development of the State Owned Corporation and Pt 4 does not apply. • s 124A of the Rural Fires Act 1997 (NSW) provides that an EPI cannot prohibit, require development consent or otherwise restrict the carrying out of any emergency fire fighting act. Further, it provides that Pt 5 of the EPA Act does not apply to any emergency fire fighting act.

Many of the statutory exemptions or alterations to the application of the EPA Act found in other legislation were removed by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) to the EPA Act, but as illustrated above, others still remain. Care is needed to ensure that, in particular circumstances, other legislation does demonstrate a clear legislative intention to amend or alter the application of planning law in those circumstances.

SCOPE OF AN ENVIRONMENTAL PLANNING INSTRUMENT ¶3-010 Issues for consideration when examining potential legal scope In examining the scope to which an Environmental Planning Instrument (EPI) controls a particular matter, it is necessary to consider two issues: (1) What is the scope of power of an EPI conferred by the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)? (2) Within the scope of power of an EPI referred to above, to what extent has a particular EPI actually utilised the potentially available scope of power? Essentially, there are two subsets of matters, as presented in Figure 3.1, and described in the paragraphs following. Figure 3.1: Two subsets of matters

Within the potential legal scope of an EPI, an actual EPI may utilise all of that potential legal scope of power, or it may only utilise part of that scope of power. The scope of power for an EPI conferred by the EPA Act is based on three sections (s 5, 24 and 26), as follows: (1) The objects of the EPA Act are set out in s 5 and fall into three distinct categories: (i) Outcomes-based objects (s 5(a)): These objects refer to substantive goals sought to be achieved by the EPA Act. All of these subjects are broad statements of outcomes. No priority or weighting is given to the eight outcomes. The Act seeks to “encourage” the achievement of these objects, rather than require compliance with them. While the majority of the EPA Act is directed at process issues, s 5(a) is one of the few provisions of the Act directed at the policy outcomes sought to be achieved by it. (The other such provision is s

111 which relates to environmental assessment.) (ii) An object relating to decision-making bodies with the recognition of the shared responsibilities between State and local government (s 5(b)): This object seeks a cooperative approach to environmental planning between the State government and local councils. This sentiment is largely honoured in the breach. One of the key features in the experience of the EPA Act has been the tension and often conflict between the State and local government. Often the Act has been used, and indeed altered, to enable the State government to coerce local councils. While some tension between the two levels of government is inevitable, given the differences in scale, constituencies and planning philosophies, much of the tension is a result of either a lack of commitment to a partnership at a State level, or excessive insularity at a local level, or indeed both. (iii) An object relating to decision-making processes with the desire to increase opportunities for public involvement and participation in planning (s 5(c)): This reflects increasing community demands in the 1970s for greater public involvement and participation. It is noteworthy that the objects refer to “involvement” and “participation”, rather than “information” and “consultation”. The objects seek a more meaningful role for the public in planning. Arnstein developed a typology of eight rungs on a ladder of citizen participation, as shown in Figure 3.2.1 Figure 3.2: Ladder of citizen participation

To what extent the EPA Act sought to achieve a real level of citizen power is unclear. The application of its provisions could enable partnership to occur, but equally the same provisions could provide a vehicle for manipulation. (2) Powers of an EPI are set out in s 24(1): “24 Making of environmental planning instruments (1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.” Section 24 provides a direct link between what can lawfully be contained within an EPI to the objects of the Act in s 5. Provided an EPI is made for the purposes of achieving any of the objects in s 5, it will be within power and lawful. Section 24 provides the basis for determining whether an EPI is ultra vires (beyond

power) and hence, capable of a legal challenge under administrative law to seek it be declared invalid. Given the broad nature of the objects of the Act contained in s 5, these provide a broad and all-embracing scope of power for what may lawfully be done by an EPI by virtue of s 24. (3) Contents of an EPI are set out in s 26: “26 Contents of environmental planning instruments (1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, (c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section, (d) providing, maintaining and retaining, and regulating any matter relating to, affordable housing, (e) protecting or preserving trees or vegetation, (e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats, (f) controlling any act, matter or thing for or with respect to

which provision may be made under paragraph (a) or (e), (g) controlling advertising, (h) such other matters as are authorised or required to be included in the environmental planning instrument by this or any other Act. (1A) An environmental planning instrument may also make provision for or with respect to protecting and conserving vulnerable ecological communities. (2)(3) (Repealed) (3A) An environmental planning instrument may make provision for any zoning of land or other provision to have effect only for a specified period or only in specified circumstances. (4) An environmental planning instrument that makes provision for or with respect to protecting or preserving trees or other vegetation may make provision: (a) for development control plans to specify the species or kinds of trees or other vegetation included in or excluded from the relevant provisions, and (b) for the grant of permission to remove or otherwise affect trees or other vegetation, and for a refusal to grant permission to be treated as a refusal or failure to grant development consent under and for the purposes of Part 4.” Section 26 operates not as a limitation of the breadth of power of an EPI contained in s 24 but is illustrative and, to the extent required, expansive. Further, s 24 relates to the purposes of making an EPI, that is, it deals with why a plan is made. Section 26 relates to the contents of a plan, that is, it deals with what a plan can contain. Hence, they are directed at different issues. Both sections need to be complied with, but neither limits the other, as each is directed to

different questions. Footnotes 1

This typology is discussed in Fagence, M, 1977, Citizen Participation in Planning, Pergamon Press, Oxford, p 124.

¶3-020 Challenges to lawfulness of an Environmental Planning Instrument based on lack of power largely nonexistent Given the breadth of power provided by s 5, 24 and 26 of the EPA Act in relation to the contents of an EPI, it is hardly surprising that challenges to the lawfulness of an EPI based on lack of power are largely non-existent. This issue was raised in the early days of the EPA Act in a merit appeal in the Land and Environment Court of NSW (NSWLEC), Fridrich Constructions Pty Ltd v Leichhardt Municipal Council, Unreported decision of the NSWLEC, of Bignold SA in Appeal No 20540 of 1982, 23 December 1982 (Fridrich). Fridrich Constructions Pty Ltd v Leichhardt Municipal Council Some caution needs to be exercised with this decision as it relates to a merit appeal heard by the then Senior Assessor of the NSWLEC in relation to an appeal under s 40(4) of the Strata Titles Act 1973 (NSW) against the failure of the Council to issue a certificate of approval to a proposed strata plan for residential premises in Collins Street, Annandale. The decision is not one of a judge, although Senior Assessor Bignold later became a judge of the NSWLEC; thus, it forms no precedent. However, Bignold SA’s judgment is a persuasive analysis worthy of careful consideration. The building in the appeal was approved by the Council in 1971 and completed in 1974. It was used as a residential flat building providing rental accommodation for up to 48 low-income households. The owner wished to convert the building to strata title and thereafter to realise

some of its investment by sale of the units. The Council advised the owner that a development application (DA) was needed for the proposed strata plan, but the owner disputed the lawfulness of this. The basis of the Council’s concern related to the significant reduction in the availability of housing for low-income earners and the need to maintain available boarding houses. The principal argument before the Court related to the merits of the strata title conversion in question and an agreement by the parties for the Court to consider the merits of an assumed development appeal, without prejudice to the owner’s right to ultimately argue development consent was not legally required. The Council had resolved to prepare a draft EPI to regulate the strata conversion of low-income residential accommodation. The owner, as part of its argument, submitted that the draft plan should carry no weight as the draft EPI was beyond power and ultra vires the EPA Act. The precedent value of this decision is somewhat diminished by the following: • the parties, by consent, agreed to the Court considering an assumed merit development appeal • as part of determining an assumed merit appeal, an issue was the weight to be given to a draft EPI, and • in considering the weight to be given to the draft EPI, the applicant submitted that the draft EPI, if made, would be beyond power and ultra vires the EPA Act because of its consideration of social and economic effects. Bignold SA ordered the dismissal of the assumed development appeal. In relation to the question of whether the draft EPI was ultra vires the EPA Act, Bignold SA provides a comprehensive examination of the issue at p 26–33, as follows: “The Court is unable to accept this submission and rejects the supporting arguments for the following reasons: (i) …

(ii) … (iii) the argument that the draft plan is directed to general social or economic policy in contradistinction to town planning policy is based upon a long line of judicial pronouncements in the context of town planning legislation both locally and overseas — see for example in Australia Ampol Petroleum v Warringah Shire Council 1 LGRA 277; Shell Company of Australia v Leichhardt Municipal Council 2 LGRA 262; Chippendale Estates Pty Limited v Sydney City Council 76 LGRA 194 and Pitt-Mullis v Sydney City Council 10 LGRA 242 and in England Fawcett Properties Limited v Buckingham County Council (1959) 1 Ch. 543, and (1960) 3 All E.R. 503; Chertsey Urban District Council v Mixham’s Properties Limited (1964) 2 All E.R. 627; and R v London Borough of Hillingdon ex parte Royco Homes (1974) 2 All E.R. 643. All of these cases were concerned with the extent of the power of local authorities to refuse development applications or to impose conditions on the grant of development consents. None of these cases directly addressed the question of the extent of the legislative power for a planning scheme to contain provisions giving effect to social or economic considerations or objectives. In the Ampol case Sugerman J. at Pg. 279 expressly reserved the question of the extent of the power to take such matters into consideration ‘in devising a local scheme for its area.’ And despite the identification of the difference between general social and economic policy and town planning policy the cases concede the difficulty in demarcating the difference. Thus the following passage appears at Pg. 279 in the Ampol case: — ‘… Probably the true distinction, under Clause 27, is that between what has been referred to in some of the decisions as ‘town planning consideration’ and, on the other hand, social or economic considerations of a general character, not specifically related to town planning; between that is to say,

on the one hand, the responsible authority, which is the local municipal or shire council, directing its mind to considerations of town planning and, on the other hand, its directing its mind to considerations which go beyond town planning and are of a general social or economic nature, more appropriate to be dealt with by the central government, such as, to take an illustration which has been referred to in more than one case, the rationalisation of industry.’ However, in the Shell case Hardie J. found no difficulty in holding that ‘Council had based its decision on considerations entirely beyond its province and function’ (Pg. 267) — the consideration being the ‘development proposal involved the demolition of four brick cottages and their demolition under current housing conditions would not be in the public interest’ (Pg. 264). The correctness of the decision in Shell’s case may be regarded as open to serious doubt in the light of the decision of the English Court of Appeal in Clyde and Company v Secretary of State for the Environment, (1977) 3 All E.R. 1123 on the basis that the statutory provisions under consideration in both cases are not materially different in a common town planning context. The Clyde case involved a development application to change the use of a building from residential to office use. The following passages from the judgment demonstrate the great variety of relevant planning considerations and that housing in particular is a planning consideration and that the provision of additional flats in the private sector may give relief to the public sector and thereby constitute a relevant planning consideration: ‘These cases do indeed show the great variety of kinds of consideration that the Secretary of State can properly take into account. They certainly indicate that he cannot confine his attitude to the question whether the character of the building or the proposed building is objectionable in itself or whether the use proposed to be made of it is detrimental to the amenities. On the other hand, it is right to say that in none of the cases I have cited so far was the desirability of preserving the existing permitted use taken into account.

It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application for change of use cannot ensure that the permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty.’ … But it is not necessary to invoke the decision in the Clyde case (instructive though it be) to demonstrate that the decision in the Shell case can no longer be regarded as relevant since and in view of the enactment of the Environmental Planning and Assessment Act, 1979 … Although the question of whether the draft plan exceeds its legislative competence is to be answered directly by a consideration of Part III of the Environmental Planning and Assessment Act, 1979 and Sections 5, 24, 25 and 26 in particular, the foregoing survey of cases dealing with the extent of the power to consider development applications sheds considerable light on the nature of town planning consideration. Indeed, it has been suggested in England (and in the Court’s view quite accurately and with relevance to the position in New South Wales) that to determine the extent of the power of local councils to control development is in fact to define the scope of planning — see ‘The Scope of Planning Authorities’ Discretion — or What’s Material’ 1977 J.P.E.L. 490. However, as was pointed out by the High Court’s decision in Allen Commercial Constructions v North Sydney Council 20 LGRA 208 the ascertainment of ‘planning policy’ or the ‘purpose of planning’ is governed by ‘the Act and from any relevant provisions of the Ordinance, not from some preconceived general notion of what

constitutes planning’ (per Walsh J. at Pg. 216). The scope of the content of an environmental planning instrument is delineated in the widest terms by Section 24 of the Act. The purpose of such an instrument is to ‘achieve any of the objects of the Act.’ These objects are specified in Section 5, again in the widest terms — for example paragraphs (a)(i) and (vi) provide: ‘(a) to encourage — (i) the proper management, development and conservation of natural and man-made resources, including agricultural land, natural area, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; and … (vi) the protection of the environment.’ Section 4(1) defines environment as ‘includes all aspects of the surroundings of man, whether affecting him as an individual or in his social groupings.’ Finally, Section 26 provides that ‘an environmental planning instrument may make provision for or with respect to any of the following: (a) protecting, improving or utilising, to the best advantage the environment; (b) controlling (whether by the imposing of development standards or otherwise) development;…’ Given the undeniable breadth of these provisions it is in the court’s view clear beyond argument that the draft plan falls within the legislative competence of the Respondent in exercising the functions conferred upon it in relation to the making of local environmental plans by Part III, Division 4 of the Act. Most obviously the draft plan ‘controls development’ (see Section 26(b)

and the definition of ‘control’, in Section 4(1)) by requiring development consent to a strata subdivision. Equally it protects the environment (Section 26(a)) by seeking to maintain for the benefit of tenants, especially in the low to moderate income bracket of society, the supply of rental accommodation in its municipality. Similarly it encourages ‘the proper management of man-made resources for the purpose of promoting the social and economic welfare of the community’ (particularly that well identified element of the community that relies on rental accommodation, especially low to moderate income tenants) (Section 24 and Section 5(a)(i)). The Applicant’s attack on the draft plan as ‘seeking a purely social end’ also was based upon the assertion that the plan unfairly and unreasonably sought to constrain the Applicant, as property owner, to subsidise low income tenants. This basis no doubt derives from the dictum in Bauer’s case at Pg. 17 that ‘it is not, in my view, a reasonable interpretation of the language of S.90(i)(d) that in order to satisfy the Council’s aim that there should be in the Municipality a ‘mix’ of residential accommodation which makes provision for persons on low incomes that owners of property should be required to subsidise those in that socioeconomic group.’ The Court does not construe the draft plan as so operating. Its explicit aim is to preserve the supply of rental housing stock in the municipality and this aim is not necessarily concerned with the supply of social or subsidised housing. Rather given the fact of the high level of private sector rental housing in the municipality compared with the low level of public sector rental housing, the aim of the draft plan is to prevent further reduction of the private sector rental housing stock. It does not purport to be an instrument of rent control. Moreover in its terms the draft plan makes no attempt to control the type of tenant or the nature of the tenancy of buildings governed by its provisions. In this respect is it to be contrasted with the local authority’s policies to control such matters considered in the Mixham and Royco Homes cases which held such policies to the ultra vires.

Accordingly the question of the extent to which planning powers may be exercised to control or restrict the persons or class of persons who may use property does not arise in this case. The Fawcett Properties case demonstrates that planning powers may extend to restricting the class of persons using premises, although there is difficulty in knowing where the line is to be drawn — see especially per Pearce L.J. at Pg. 578 of the Court of Appeal decision. However, the present case presents no such difficulty or demarcation for there can be no doubt that the availability of rental housing in contrast to owner-occupied housing is a legitimate planning purpose and consideration — see the Clyde case and Sections 5, 24 and 26 of the Environmental Planning and Assessment Act. Accordingly, the Court rejects the Applicant’s argument that the draft plan is by virtue of its content, ultra vires the Act.” A more detailed discussion on the meaning of development is found in Chapter ¶4.

¶3-030 A question of legislative power As Bignold SA noted in Fridrich, there are two aspects to the question of power: (1) What is the extent of legislative power of a plan? (Be it an EPI, or under the former regime, a prescribed planning scheme or interim development order (IDO).) (2) What is the extent of legislative power of a local authority in the determination of a DA required to be lodged? (Note: The source of the requirement to lodge an application may be in the plan or in the legislation itself.) Under the EPA Act, the source of the requirement to lodge an application is, where an EPI provides that the proposal is only permissible with consent, the EPI in question. The consent is then obtained under Pt 4 of the EPA Act, and the powers of the consent

authority to determine an application are contained in s 79C. An alternative approval pathway for State Significant Infrastructure is provided for in Pt 5.1. Some caution needs to be exercised in relation to the range of authorities cited by Bignold SA (as he then was) in Fridrich, although his conclusion is considered correct. As Bignold SA noted, many of the cases he refers to relate to the extent of power of a local authority in determining a DA, and not the extent of legislative power for a plan itself. Moreover, the pre-1980 New South Wales cases and the English cases are founded on a significantly different legislative scheme to that contained in the EPA Act. Prior to the commencement of the EPA Act, there were two types of plans under which an application for approval of a specific development proposal was required, prescribed planning schemes and IDOs, both under the then Pt 12A of the Local Government Act 1919 (LG Act 1919). The scope of power of a prescribed planning scheme was provided for in s 342G of the LG Act 1919. The terms of this section, as existing after 1974, provided as follows: “343G. (1) A scheme shall in the prescribed manner define the land to which it applies. (2) A scheme may contain provisions for regulating and controlling the use of land and the purposes for which land may be used. (3) Without prejudice to the generality of subsection (2) a scheme may contain provisions for or in relation to all or any of the following matters, that is to say — …” The principal power for a prescribed planning scheme was to contain provisions for regulating and controlling the use of land, and the purposes for which land may be used. Thereafter, the general power is expanded by a list of 27 specific subjects which could be addressed by the provisions of a prescribed planning scheme. Section 342G of the LG Act 1919 was similar in structure to s 24 and 26 of the EPA

Act. In scope, s 342G was broad and far-reaching, although probably not as broad as the powers contained in s 24 and 26 of the EPA Act. As Starke wrote in 1966: “Hence it is not surprising that the provisions of Part 12A, namely in s. 342G, which purport to lay down what should be contained in a planning scheme, should endeavour to cover as many possibilities and contingencies as might be expected when planning schemes come to be prepared for different parts of New South Wales, with all the differences in geography, demography, industry and land uses involved.”2 Given the breadth of s 342G, it was hardly surprising there was a dearth of challenges to prescribed planning schemes on the grounds of ultra vires of exceeding the scope of power in s 342G. Further, the earliest major prescribed planning scheme, the County of Cumberland Planning Scheme (County Scheme), did not rely on Pt 12A of the LG Act 1919 for its lawfulness. Rather, it was deemed to be an ordinance by special legislation, the Local Government (Amendment) Act 1952 (NSW). The requirement for special legislation to enact the County Scheme, covering all of metropolitan Sydney and the Illawarra, was based not on any perceived lack of power for its contents, but on procedural inconsistencies in its processing from those provided in Pt 12A of the LG Act 1919.3 The second type of plan which existed in New South Wales prior to the EPA Act was an IDO. The scope of power of an IDO was contained in s 342U of the LG Act 1919 which provided as follows after 1971: “342U. (1) Where the council or councils concerned has or have, or the Authority has, commenced to prepare a scheme under this Part and such scheme, with or without amendment, has not been prescribed, the Minister may, after consideration of a report by the Authority, by notification published in the Gazette make an interim development order permitting, regulating, restricting, or prohibiting, or conferring on the council powers, authorities, duties and functions with respect to permitting, regulating, restricting or prohibiting, interim development on any land which may be

included in the scheme pending the coming into operation of the scheme or the varying scheme.” Further, s 342T defined “interim development” inter alia as “development” in certain circumstances and then defined “development” as follows: “‘Development’ in relation to any land includes the erection of any building, the subdivision of the land and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used.” Alternatively, s 342Y empowered the Minister, where a prescribed planning scheme applied to land, to suspend the scheme in relation to land and to make an IDO in relation to that land under s 342Y(3). Thus, the scope of power of an IDO was considerably less than that of a prescribed planning scheme, being confined to the definition of development in s 342T. As would be expected, the scope of power of an IDO was subject to considerable litigation, not on the basis that a particular IDO was beyond power, but that a particular proposal was not “development”, as defined, and hence, was not required to obtain interim development approval.4 Under the former New South Wales law, the source of the requirement to lodge an application for land subject to a prescribed planning scheme was the scheme itself and the powers of the consent authority to determine an application were likewise in the prescribed planning scheme. In prescribed planning scheme ordinances, the power of the consent authority to determine an application was constrained by heads of consideration, such as cl 27 of the County Scheme, which provided (after 1957) as follows: “Consideration of application for consent 27. Where application is made to the responsible authority for its consent to the erection or use of a building in a zone in which a building of the type proposed may be erected and used only with its consent, the responsible authority shall decide whether to give or withhold consent, and in the former

event what conditions, if any shall be imposed: Provided that before determining any such application the responsible authority shall take into consideration — (a) the provisions of any planning scheme (including this scheme) affecting the land; (b) the character of the proposed development in relation to the character of the development on the adjoining land and in the locality; (c) the size and shape of the parcel of land to which the application relates, the siting of the proposed development and the area to be occupied by the development in relation to the size and shape of the adjoining land and the development thereon; (d) any representations made by any statutory authority in relation to the application or to the development of the area, and the rights and powers of any such authority; (e) the existing and likely future amenity of the neighbourhood including the question whether the proposed development is likely to cause injury to such amenity including injury due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products or otherwise; and (f) the circumstances of the case and the public interest.” In these circumstances, the extent of power in determining an application did not coincide with the extent of power of the scheme. Other instances where a prescribed planning scheme included heads of consideration are cl 32 and 37 of the Lane Cove Planning Scheme Ordinance and cl 23 of the Blue Mountains Planning Scheme Ordinance. Such provisions are precursors of the evaluation criteria now in s 79C of the EPA Act (and its predecessor s 90 between 1979

and 1998). Where there are specified powers for the determination of DAs, these provisions constitute a second level of constraints on the powers of the consent authority in determining DAs, in addition to the constraints on the powers of a plan (where the source of the requirement to lodge an application is found in a plan). In these circumstances, the scope of power for the determination of applications does not coincide with (but is a subset of) the scope of power of plans. Hence, care must be exercised in applying judicial considerations relating to the powers of a consent authority to determine DAs to the scope of power for plans themselves, even in the same statutory context, let alone in differing statutory contexts. With these qualifications in mind, the relevant cases in New South Wales will now be examined. Footnotes 2

Starke, JG, 1966, The Law of Town and Country Planning in New South Wales, Butterworths, Sydney, p 82.

3

ibid, p 42–45.

4

Wilcox, Murray R, 1967, The Law of Land Development in New South Wales, The Law Book Company, Sydney, p 216ff; and Starke op cit, p 116ff.

¶3-040 Ampol Petroleum Ltd v Warringah Shire Council Ampol Petroleum Ltd v Warringah Shire Council (1956) 1 LGRA 276 (Ampol v Warringah) is a decision of Sir Bernard Sugerman in the NSW Land and Valuation Court on a merit appeal against the Council’s refusal of applications to erect a service station at Newport, on the northern beaches of Sydney. Council’s refusal of one of the applications (the subject of the appeal) was based on its view that the

area already had adequate provision of service stations. A question at issue was whether the ground for refusal was valid under cl 27 of the County Scheme. In dismissing the merit appeal, Sir Bernard Sugerman discussed the following issues: (1) Extent of the discretion conferred by cl 27 of the County Scheme. Sugerman J noted there were two competing views on the scope of the discretion under cl 27 of the County Scheme: (i) The narrow view that the scope of discretion under cl 27 is limited to the provisions of cl 27. Sugerman J said at p 280: “In the decision of this Court of Appeal in Ampol Petroleum Ltd. v Rockdale M.C. [(1953) 19 LGR 64], after close examination of many provisions of the relevant legislation, the conclusion was reached that the proviso to cl. 27 is the exclusive measure of the extent of the discretion to withhold consent under that clause.” (ii) The broader view that the scope of discretion under cl 27 is not confined to the provisions of cl 27 but extends to the scope of the legislation as a whole. Sugerman J said at p 280–281: “In Tooth & Co. Ltd v Parramatta City C. [(1955) 20 LGR 158 at p. 173], a decision which has been referred to by Hardie J., in Lux Motor Auctions Pty Ltd v Bankstown M.C. [(1955) 20 LGR 178 at p. 182], the High Court observed that the ambit of the discretion appeared to be a wide one. The learned Chief Justice said: — ‘I mentioned cl. 27 specifically for the purpose of saying two things. The first is that the council has a wide discretion and that the grounds on which it is exercisable do not appear to me to be limited to the matters stated in the proviso. The proviso is an express command requiring it to pay attention to the matters specified. The discretion of the responsible authority, however, is not necessarily restricted to those matters.’

In those observations, which would appear to be obiter, McTiernan J, who expressly referred to the matters, and Webb, Fullagar, and Kitto JJ, agreed.” In the Ampol v Warringah case, Sugerman J did not decide whether the narrow or broad view of the scope of the discretion under the heads of consideration in the County Scheme was correct, as in that case, on either view, the exercise of the Council’s power was within the Council’s powers. (2) Extent to which broad social and economic considerations fell within the scope and objects of the litigation. Sugerman J was not required to make a determination on this question, but he expressed a tentative view, while qualifying his comments to the scope of the heads of consideration in determining a DA rather than the scope and power in preparing a plan, as follows at p 278–279: “Even on the wider of the two views of the ambit of a responsible authority’s discretion under cl. 27 of the County of Cumberland Planning Scheme Ordinance to which I shall later refer, it is questionable whether the ground stated in the council’s letter was a valid ground for refusal. Even on that view of its ambit, the discretion, although a wide one, is not completely unlimited. It is, that is to say, limited by reference to what has been referred to in many cases as ‘the scope and object’ of the legislation by which the discretion is conferred: see, for instance, Swan Hill Corporation v Bradbury [(1937) 56 CLR 746 at pp. 756–758] and Water Conservation and Irrigation Commission v Browning [(1947) 74 CLR 492 at pp. 504, 505]. It is difficult to express the precise distinction between what considerations may fall within the scope and object of the subject legislation and what considerations fall outside it. (I am speaking at the moment, of course, only of considerations relevant to the exercise of discretion as a responsible authority under cl. 27 of the Ordinance, and not

of the matters which may or may not be taken into consideration by the council in its other capacity as a local planning authority in devising a local scheme for its area. It is not necessary, at the moment, for me to express any view on this question of the scope and object of the legislation in relation to that second matter). Probably the true distinction, under cl. 27, is that between what has been referred to in some of the decisions as ‘town planning considerations’ and, on the other hand, social or economic considerations of a general character, not specifically related to town planning; between, that is to say, on the one hand, the responsible authority, which is the local municipal or shire council, directing its mind to considerations of town planning and, on the other hand, its directing its mind to considerations which go beyond town planning and are of a general social or economic nature, more appropriate to be dealt with by the central government, such as, to take an illustration which has been referred to in more than one case, the rationalisation of industry.”

¶3-050 Shell Co of Australia v Leichhardt Municipal Council — what are lawful town planning considerations? In contrast to the limited and measured analysis of Sugerman J in Ampol v Warringah, Hardie J in Shell Co of Australia v Leichhardt Municipal Council (1957) 2 LGRA 262 (Shell v Leichhardt) precipitately sought to determine what were lawful town planning considerations and what were not. The case was a merit appeal against the refusal of an application to develop land at Norton Street, Leichhardt for a garage and service station. Council refused the application based on a view that the demolition of a dwelling house on the site was not in the public interest due to the shortage of housing in the area, and the house in question still had some useful life as a residence. Hardie J allowed the appeal and concluded that there were:

“… no town-planning considerations or other legitimate local government considerations to justify the refusal …” (at p 266). Based upon what were lawful considerations under cl 27 of the County Scheme, Hardie J said at p 267: “The distinction between legitimate and town-planning or other local government considerations and those of a general economic or social nature that go beyond town-planning and are more appropriate to be dealt with by the central legislative body, have been adverted to in earlier decisions of this Court: see Ampol Petroleum Ltd v Warringah S.C. [(1956) 1 LGRA 276 at 279], and Atlantic Union Oil Co. Pty Ltd. v Randwick M.C. [(1956) 20 LGR (NSW) 332 at 334]. In some cases it is difficult to draw a clear line of distinction between the two classes of considerations, i.e. matters which a council can properly look at when dealing with a development application under the Ordinance, and matters that it is not entitled to take into consideration. The present case does not, in my view, present that difficulty. It is clear, in my opinion, that the council has based its decision on considerations entirely beyond its province and function.”

¶3-060 Chippendale Estates Pty Ltd v Sydney City Council and Pitt-Mullis v Sydney City Council Hardie J reiterated the same view in Chippendale Estates Pty Ltd v Sydney City Council [1960] NSWR 536; (1960) 6 LGRA 194 at p 199. He also expressed a similar view as to what constituted a legitimate town planning matter in Pitt-Mullis v Sydney City Council (1964) 10 LGRA 242 — a merit appeal in relation to a Kings Cross nightclub. Hardie J said at p 245–246: “During the course of argument, counsel for the respondent adverted to a number of matters of public interest in the broad sense which he contended required the total refusal of the application. He stressed the undesirability of this area for the siting of a recreational, social or cultural centre for juveniles, an area which is pervaded by a bohemian atmosphere and aroma

and in which prostitution and solicitation are rife. He contended that, although the public interest adverted to in cl. 27 of the Ordinance is public interest in the Local Government or Town Planning sense, nevertheless in a case such as the present, public interest, in the wider sense of moral and social considerations affecting the young impressionable section of the community, was closely related to public interest in the Town Planning sense. I do not accept this portion of the submission of counsel for the respondent. Strong though the temptation be, this Court would not be justified in seeking to provide the answer and solution to a pressing community problem, because existing legislation and/or administrative practices and procedures fail to deal with the matter or are inadequate to cope with it; in other words, the existence of a legislative and administrative vacuum in this important field of providing and/or regulating juvenile recreational and social activities in the city or near-city areas is no justification, in my view, for extending the discretionary power of this Court, into foreign fields of public policy in the general moral and social sense. It is thus apparent that, although the siting of this youth leisure centre is highly undesirable on broad moral grounds of juvenile welfare, this Court would not be justified in refusing the application altogether unless zoning, town planning and amenity considerations established a sound basis for such refusal. From what has been said above, it is apparent that they do not provide that basis, and accordingly the submission made on behalf of the respondent that the consent should be refused must fail.”

¶3-070 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council In Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490 (Allen), the High Court of Australia dealt with an appeal regarding enforcement action by the Council in relation to the breach of the conditions of a development consent limiting hours of work on a construction site. At first instance, the Court refused to grant an injunction on the grounds that the

condition was invalid as there was no relevant connection between the condition of hours of work and the implementation of planning policy. As noted previously, s 342G(3) of the LG Act 1919 enumerated matters regarding which a planning scheme may contain provisions, including s 342G(3)(i) for “the regulation of building and of matters relating thereto”. In the Allen case, Walsh J said at paragraphs [9]– [10]: “9. Counsel for the defendant submitted that a limited construction ought to be put upon par. (i) of s. 342G(3) because of the subject matter of this part of the Act and because the other matters enumerated in sub-s. (3) are ‘town planning’ matters. It was submitted that par. (i) should be construed as providing for the regulation of such matters as standards of construction and design and the appearance and the relationship to its surroundings which a building will have when it has been erected and as not extending to the regulation of the process or operation of erecting a building. In my opinion this submission should be rejected. It appears to assume that it is possible to formulate, independently of the Act, some general concept of ‘town planning’ which is sufficiently definite to enable it to be used to impose a restriction upon the meaning in which otherwise the words of par. (i) would be understood. In my opinion the provision is framed in a way which indicates that it is intended to have a wide and not a narrow operation. The scheme may contain provisions ‘for or in relation to’ the matters enumerated. Then par. (i) refers not only to the regulation of building but also to the regulation ‘of matters relating thereto’. In my opinion this includes within its meaning the regulation of the way in which building work is carried out. If this goes outside what would be considered by some people to be within the scope of town planning, that is not to the point. It is, of course, competent for the Parliament to include in this enactment whatever matters it considers might properly be included in a scheme and might thus be made subject to the supervision of the responsible authority (at p. 497). 10. It was submitted, in one part of the argument, that this part of the Act is intended to authorize the regulation of the purpose for

which land is to be used and not the steps that may be taken in the course of erecting buildings which will enable the land to be used subsequently for some intended purpose for which the buildings are appropriate. This argument denies that the erection of a building on land is ‘the use’ of that land within the meaning of sub-s. (2) of s. 342G. But in my opinion that subsection is expressed in language which does not warrant a narrow construction of it. It provides that a scheme may contain provisions not merely for regulating and controlling the purposes for which land may be used, but also for regulating and controlling the use of land. The reference in sub-s. (3) to the generality of the provisions of sub-s. (2) indicates that sub-s. (2) ought to be given a wide meaning. Subsection (3) itself states expressly that ‘a scheme may contain provisions for or in relation to … the regulation of building and of matters relating thereto’. There is no sufficient reason for holding that this provision is intended to do more than permit the scheme to contain provisions for regulating the purposes for which buildings may be used after they have been erected. It was conceded in the argument for the defendant that the Act authorized the inclusion in a scheme of provisions for regulating the size, shape, design and appearance of buildings. This means that it is not so limited as to relate solely to the purpose for which land is to be used. But it was said that any regulation of the structure of the building, as contrasted with the regulation of the purpose for which it may be used, must be limited to the regulation of matters which have a permanent effect upon the relationship of a building to its environment. It cannot extend to the control of the process of the erection of a building, in the interests of the convenience and welfare of the inhabitants of the neighbourhood. I am of the opinion that such a limited construction should not be adopted. It puts unwarranted restrictions both upon the meaning of sub-s. (2) and upon the meaning of sub-s. (3) (at p. 498).” Walsh J’s reasons in the Allen case were concurred with by Barwick CJ, Menzies J and Windeyer J. In the Allen case, the High Court firmly put paid to the line of authority

in the judgments of Hardie J proposing the importation of a judicial notion of what constitutes a legitimate town planning consideration in general terms beyond an examination of the legislative provisions on the scope of power of a plan. In the United Kingdom’s Town and Country Planning Act 1990 (UK) (TCP Act 1990) applying to England and Wales, the scope of power for Development Plans in Metropolitan Areas and for Structure and Local Plans in Non-Metropolitan Areas is found in requirements for a survey of planning areas and for the preparation of plans. Comparable provisions apply in relation to Structure and Local Area Plans in Non-Metropolitan Areas (see s 30, 31 and 36). In the UK system, plans do not have force of law as they have in the New South Wales system. They are advisory documents. The need to obtain planning permission is governed by s 517 of the TCP Act 1990 which provides in s 517(1) as follows: “57.(1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.” Further, s 55 of the UK Act provides in s 55(1) as follows: “55.(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, ‘development’ means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any building or other land.” The remaining subsections in s 55 include and exclude certain matters from the definition of development. The power of a local planning authority in the determination of an application for planning permission is contained in s 70(2) as follows: “70.(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.” The judicial consideration of the scope of planning in the UK system

unsurprisingly, given the above statutory context, has focused on ultra vires in the context of a decision on whether or not to grant planning permission, and if so, subject to what conditions.

¶3-080 Fawcett Properties Ltd v Buckingham County Council — consideration of the validity of a condition of a planning permission In Fawcett Properties Ltd v Buckingham County Council [1961] AC 636; [1960] 3 All ER 503 (Fawcett), the House of Lords considered the validity of a condition of a planning permission for two farm workers’ cottages that limited the occupation of the houses to persons whose employment or latest employment was in agriculture, forestry or an industry mainly dependent on agriculture. In this case, the bulk of the judgments of the House of Lords dealt with whether the condition was void for uncertainty. All Law Lords agreed the condition was not ultra vires in that it was so wide that it could not fairly and reasonably relate to any policy possible under the Town and Country Planning Act 1974 (UK). Lord Denning with his characteristic clarity dealt with this issue as follows at p 678–680: “Next I turn to the question of ultra vires. The local planning authority is empowered to grant permission to develop land ‘subject to such conditions as they think fit’. But this does not mean that they have an uncontrolled discretion to impose whatever conditions they like. In exercising their discretion, they must, to paraphrase the words of Lord Green’s words in the Wednesbury case have regard to all relevant considerations and disregard all improper considerations, and they must produce a result which does not offend against common sense; or to repeat my own words in Pyx case, the conditions, to be valid, must fairly and reasonably relate to the permitted developments: or, yet again, to borrow the words of Lord Macnaghten and Lord Wrenbury in this House, a public authority which is entrusted with a discretion must act reasonably: see Westminster Corporation v London & North Western Railway Co; Roberts v Hopwood and I

take it that, if the authority act reasonably the result will be reasonable. Out of these various shades of meaning I am not sure that the last is not the best: for it puts planning conditions on much the same footing as by-laws made by a local authority, to which they are so closely akin. Indeed, I see no difference in principle between them. As with by-laws, so with planning conditions. The courts can declare them void for unreasonableness, but they must remember that they are made by a public representative body in the public interest. When planning conditions are made, as here, so as to maintain the green belt against those who would invade it, they ought to be supported if possible. And credit ought to be given to those who have to administer them, that they will be reasonably administered: see Kruse v Johnson. Such being the tests, how does this condition measure up to them? Mr Megarry contended that the condition was totally unrelated to any legitimate planning considerations. He put forward the wide proposition that the statute gives the planning authority power to say in what way property is to be used: but no power to say by what persons it is to be used. I cannot subscribe to this proposition for a moment. I should have thought that a planning authority could very reasonably impose a condition that cottages were to be reserved for farm workers and not let to city dwellers: for this would help to preserve the green belt. Forced from his wide proposition, Mr Megarry took up the issue on a narrower front. He said that this condition was so expressed that it carried out no conceivable planning policy. For this purpose he resorted again to his examples. He concentrated his main attack on the words ‘an industry mainly dependent upon agriculture’, though he did not neglect the others. If these words are capable of any ascertainable meaning, he said, it is a meaning which is totally unrelated to any planning considerations. Agriculture is defined so widely that it includes the growing of cotton in Egypt, the raising of sheep in Australia and the breeding of chinchilla in South America: with the result that the industries which are mainly dependent upon agriculture include the textile industry, the leather industry, the fur industry and many others. If this is be

right, he said, many London workers will be eligible to occupy the cottages. And take the word ‘latest’. It means that a retired farmer from Australia would be eligible for the cottages equally with a retired furrier from London. But a telephone operator from Chalfont St. Giles would not. How can such distinctions, it is asked, be fairly related to any legitimate planning considerations? My Lords, I think the true answer to this attack on the condition is that Mr Megarry is giving it too wide an interpretation altogether. The definition of ‘agricultural population’ in the Housing Acts is limited by the context to the agricultural population ‘of the district’, that is, of the locality. So, here, the words of the condition are to be read in the light of the reasons which the planning authority are enjoined to give: see Crisp from the Fens Ltd v Rutland County Council. So read, I am clearly of opinion that the word ‘agriculture’ does not include world-wide agriculture, nor even allEngland agriculture, but means agriculture in the locality. And ‘industry’ does not mean far-off industry in London or the big towns. It means local industry. The condition, properly construed with the reason, means, I think, that the occupation of the cottages must be limited to persons who are employed in agriculture in the locality or in a local industry mainly dependent on agriculture in the locality. The word ‘occupation’ is used to denote the head of the household. The word ‘latest’ to show that he may stay on in the cottages after his retirement. The word ‘dependents’ to show that he may have with him his wife and family and anyone else dependent on him. So construed it seems to me that the condition fairly and reasonably relates to the permitted development. Its effect is to ensure that the cottages will be occupied by persons who will help to maintain the normal life and character of this part of the green belt and not by outsiders to use as a dormitory. The cottages are for farmworkers, or for men who work at the smithy shoeing horses, at the mill grinding the corn, or at the sawmills cutting up wood; or in modern times at the milk depôt bottling the milk or at the repair shop mending the tractors; and so forth. They are not for people who go up and down to London every day.”

Lord Jenkins distinguished between ultra vires claims: • a narrow ultra vires claim, that the condition did not fairly and reasonably relate to any local planning considerations, in effect an argument based on Wednesbury unreasonableness, and • a broad ultra vires claim, that the Council lacked the power under the Act to impose a condition restricting the occupation of premises based on the personal circumstances of the occupant. Lord Jenkins noted the broad claim was not seriously pressed before the NSW Court of Appeal and rejected it with little discussion. He proceeded to further consider the narrow claim and like the rest of his fellow Lord Lords rejected the narrow ultra vires claim. Hence, the Fawcett case serves little purpose in illuminating the broad question of the legal scope of a plan, instead focusing on the lawfulness of a particular condition to a particular planning permission and issues of uncertainty of a condition.

¶3-090 R v London Borough of Hillingdon, ex parte Royco Homes Ltd Similarly, the decision in R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] QB 720 focuses on what Lord Jenkins in Fawcett referred to as a narrow ultra vires claim in relation to the validity of conditions of a planning permission, with the decision reflecting similar principles to those contained in the Fawcett case.

¶3-100 Clyde & Co v Secretary of State for the Environment In Clyde & Co v Secretary of State for the Environment [1977] 3 All ER 1123 (Clyde), the UK Court of Appeal considered an appeal relating to an application to convert residential apartments, which were subject to a planning permission but as yet unbuilt, into offices. The application was refused due to the potential loss of residential accommodation. Thus, Clyde dealt with comparable circumstances to those considered

in the decision of Shell v Leichhardt in New South Wales. In Clyde, the Court reached the opposite conclusion to that reached by Hardie J in Shell v Leichhardt, namely that the desirability of preserving residential accommodation was a relevant planning consideration. Relevant extracts from Sir David Cairns’s judgment in Clyde are included in Bignold SA’s judgment in Fridrich earlier and hence, are not repeated further. Clyde is instructive on the extent of relevant planning considerations but of limited assistance in relation to the question of the legal scope of a plan.

¶3-110 Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning — an issue of lawfulness The issue of the lawfulness of a Local Environmental Plan (LEP) was also considered in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 20 (Meriton) where Cowdroy J in the NSWLEC dealt with a challenge to the validity of provisions of the South Sydney LEP 1998 — Green Square and the Green Square Affordable Housing Development Control Plan (DCP). The LEP and DCP authorised the imposition as a condition of development consents requiring applicants to contribute to the provision of affordable housing by retaining ownership of a required number of apartments subject to an agreement with a community housing provider, transferring title of the apartments to a non-profit housing organisation or making a cash contribution. One aspect of the challenge was whether the LEP provisions were beyond power. Cowdroy J referred to s 24 of the EPA Act and the objects in s 5(a) of the Act. Cowdroy J held that the LEP was invalid as the affordable housing provisions were beyond power. He held at paragraphs [29]–[37], [54] and [61]–[64] as follows: “The objects of the EPA Act compared with the affordable housing provisions 29. To determine if delegated legislation is within the power of an enabling statute the general propositions stated by

Brennan J in The State of South Australia v Tanner & Others (1989) 166 CLR 161 at 178–179 are applicable. His Honour stated: — First, as the validity of the regulation depends on whether it answers the statutory description, the problem is one of characterisation. Next, the character of a regulation is ascertained by reference to its operation and legal effect in the circumstances to which it applies. The character of the regulation is ascertained by the court’s own assessment of the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object to be served. If directness and substantiality of the connexion between the likely operation of the regulation and the statutory object is exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object, the regulation is invalid. Moreover, it must be steadily borne in mind that the fulfilling of the statutory object is a limitation on the power to make the regulation. A regulation which is so widely drawn as needlessly to embrace a field of operation which is quite unconnected with the statutory object cannot reasonably be adopted in exercise of a power so limited. A local environmental plan made subject to the constraints of s 24 of the Act must conform to the objects of such Act. It is an instrument as defined in s 3 of the Interpretation Act 1987 and is analogous to the legal status of a regulation as considered by Brennan J in The State of South Australia v Tanner & Others at 178–179. 30. Decisions relating to the interpretation of planning laws in the United Kingdom provide a useful guide to the applicant’s first challenge. In East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, a case concerning alteration of use, Lord Parker CJ said at 491: — … what is really to be considered is the character of the

use of the land, not the purpose of a particular occupier. This passage was extended by Lord Scarman in Westminster City Council v Great Portland Estates Plc [1985] AC 661 where His Lordship said at 670: — It is a logical process to extend the ambit of Lord Parker CJ’s statement so that it applies not only to the grant or refusal of planning permission and to the imposition of conditions but also to the formulation of planning policies and proposals. 31. From these observations, a clear principle emerges which is pivotal to the present issue namely, whether the challenged provisions can truly be categorised as those which relate to a planning purpose. 32. An objective of the Act is to encourage management, development and conservation of natural and artificial resources including cities, towns and villages for ‘the purpose of promoting the social and economic welfare of the community and a better environment’ (s 5(a)(i)). The remaining objectives such as economic use and development of the land, provision of community services (s 5(a)(ii)) and provision of land for public purposes (s 5(a)(iv)) are obviously directed to environmental and town planning. 33. The reference in s 5(a)(i) of the Act to the promotion of ‘the social and economic welfare of the community’ is not in itself an object of the Act. Rather it is the desired consequence intended to result from the development with which the objects of such Act are concerned. Such words relate to the betterment of the community as a whole which is to flow from the sound development and planning required by the Act. No particular class of the community is identified for special benefit, nor is it an object of the Act to create a ‘social mix’ (cl 2.1 of the DCP) within any sections of the community. 34. Authorities such as Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA) at 408, 417, 423 and Project Blue Sky v

Australian Broadcasting Authority (1998) 194 CLR 355 at 390 endorse the purposive approach to statutory interpretation as does s 33 of the Interpretation Act 1987. Section 34(f) thereof allows the Court to take judicial notice of a speech made to the House of Parliament by a Minister as an aid to statutory interpretation. 35. The Minister’s second reading speech relating to the Cognate Environmental Planning Bills (Hansard, 14 November 1979, Legislative Assembly, at 3045, 3048) leaves no doubt as to the objects of the Environmental Assessment Bill wherein the following is recorded: — The fundamental purpose of these bills before the House is the creation of a legislative framework for environmental planning decision-making. Their objective is to satisfy best the current and future needs of this State in respect of planned development, economic growth and social environmental enhancement. … In essence, it involves decision-making for planned development and conservation to achieve economic and social growth within the tolerable limits and capacities of the physical [emphasis added] environment. The council has referred to the second reading speech of the Minister, the Hon D P Landa delivered in the Upper House in relation to the Bills (Hansard 21 November 1979 Legislative Council 3345) wherein the Minister said at 3346: — The essential aim of the bills is to create a system of environmental planning under which decisions on land use and resource management are made within the physical [emphasis added] capacity of the environment in order to promote the economic and social welfare of the people of New South Wales. 36. Whilst the council argues that the latter speech refers to the broadening of ‘the scope of planning effectively to embrace economic, social and ecological considerations in the preparation of environmental plans and in development

control’, (Hansard 21 November 1979 Legislative Council 3345 at 3346) such words must be considered in context. The proposed Bill was directed to the reform of town planning and development and not to the provision of welfare for the community. Lord Justice Kerr in Regina v Westminster City Council Ex parte Monahan & Anor [1990] 1 QB 87 (CA) at 112 and Lord Scarman in Westminster City Council v Great Portland Estates Plc at 670, affirmed the concept that whilst planning law may have an indirect beneficial social outcome such outcome cannot be utilised to expand the purpose of a planning statute. 37. The affordable housing provisions can be characterised as relating essentially to a social purpose, namely the provision of housing for a particular group within the community. The opportunity to provide such benefit is predicated upon development in Green Square. Such purpose is not related to the physical development of town planning or of the environment, but is directed to benefit those persons who would be eligible for affordable housing. … Interference with proprietary rights 54. Whilst the challenged provisions do not constitute a tax they impose a financial burden of a kind not envisaged by the Act. Such Act contemplates contributions of the kind referred to in s 94, namely a quantifiable contribution confined to the amelioration of the impact of development. The challenged provisions envisage an applicant may elect to keep title to the land. In this event, an applicant must satisfy council that a management agreement has been made for the management of such housing ‘that will fulfil the affordable housing principles set out in cl 27M’ of the LEP and ‘council will seek the views of the community housing organisation on the appropriateness of the management arrangements proposed’ (DCP cl 3.3). These provisions demonstrate that an applicant will be required to subsidise the occupants of

the housing set aside as affordable housing indefinitely, at a standard ‘consistent with the average standard of contemporary development in the area’ (see DCP cl 2.4), and selected by the community housing organisation without any opportunity for the applicant to be heard (DCP cl 3.1). If an owner wishes to sell units allocated for affordable housing, it may do so provided that their use for such purpose continues indefinitely (DCP cl 3.3). … 61. It has been accepted that a council may impose conditions which interfere with rights, and provided the purpose is valid, the interference will be valid. In Allen Commercial Constructions Pty Limited v The Council of the Municipality of North Sydney (1970) 123 CLR 490 the High Court of Australia (at 499) affirmed the proposition that a condition will be valid if it is reasonably related to the purpose for which the function of the authority is being exercised. However such interference must be related to the development. In Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1972–74) 29 LGRA 130 at 142, Holland J held a condition requiring contribution for parking spaces invalid on the ground that such contribution was not confined to the ‘consequences of the development’. 62. The challenged provisions would permit a council to require the applicant, as a condition of development consent, to surrender indefinitely its entitlement to use a portion of its property or to assign such or pay a monetary contribution without receiving compensation. Such contribution is not required to be applied for a consequence of the development but instead is to be applied towards affordable housing, the need for which does not necessarily arise from the development. In Fridrich Contsructions Pty Limited v Leichhardt Municipal Council (NSWLEC, 23 December 1982, unreported at 32) Senior Assessor Bignold determined, albeit impliedly, that a condition of development consent which imposed an obligation to provide subsidise [sic. Should read

“subsidised”] housing would be an unreasonable constraint upon an applicant. 63. There is no evidence that any low or low to moderate income family has been or will be displaced by reason of the applicant’s proposed development. Rather the required contribution is to be made for the more general purpose of housing low income families. It is estimated that from the proposal to house 22,000 people in Green Square, between 700 and 800 persons will be required to be accommodated in affordable housing. Accordingly the contribution is significant. It cannot be said that the purpose of the contribution is related to the development (see Greek Australian Finance Corporation Pty Ltd v Sydney City Council at 141, 142 and Pyx Granite Co. Ltd. v Ministry of Housing and Local Government [1958] 1 Q.B. 554 at 557). 64. Although the council submits that the introduction of the Act heralded a new approach in town planning, I do not think that the New South Wales Parliament intended that well established principles relating to the limitation of powers of a local authority and to discrete issues of fundamental proprietary rights which have been enshrined in the common law were to be discarded by the operation of the Act. Certainly Cripps J in Building Owners and Managers Association of Australia Ltd v Sydney City Council at 67 relied upon such principles when considering the impact of contributions under s 94 of the Act (see also Parramatta City Council v Peterson (1987) 61 LGRA 286 at 293, 294), and the High Court of Australia in The Commonwealth of Australia v The State of New South Wales (1923–24) 33 CLR 1 at 42 has recognised the common law right of an owner to exercise dominion over their property. Accordingly the conditions envisaged by the challenged provisions constitute an unauthorised interference with proprietary rights in the same manner as was found in Regina v Hillingdon and Hall v Shoreham-by Sea Urban District Council at 256 and are thus unreasonable within the Wednesbury sense.”

Cowdroy J proceeded to address the question of the power to make an LEP by reference to its purpose as provided in s 24 and the objects in s 5, but did not address what the contents of a plan can include as provided in s 26. He appears to import a judicial notion of what constitutes a legitimate planning purpose, contrary to the High Court’s decision in Allen’s case in paragraphs [31] and [37]. He correctly indicates that the use of the words “for the purposes of promoting the social and economic welfare of the community” in s 5(a)(i) is not an object of the Act but a desired outcome of the proper management, development and observation of resources. His reference to the Minister’s Second Reading Speech on the Bill indicating the aim of the bill was to ensure decisions are made within the physical capacity of the environment appears to be obscure and unrelated to the issue at hand, but he utilises this to conclude that the legislation is directed at the physical development of town planning or of the environment, and not to achieving a social purpose. No doubt His Honour’s views were influenced by the fact that the provisions under challenge had the effect of taking control of part of the applicant’s property without compensation. Cowdroy J found it does not authorise the acquisition of property without compensation as envisaged by the LEP and hence, the challenged conditions were unreasonable in a Wednesbury sense. Following this decision, the EPA Act was amended to include the words “to encourage … the provision and maintenance of affordable housing” as an object of the Act in s 5(a) and s 94F and s 94G, authorising conditions relating to affordable housing by the Environmental Planning and Assessment Amendment (Affordable Housing Act) No 29 of 2000 (NSW). It should be remembered that s 5, 24 and 26 of the EPA Act provide what legally can be done in an EPI. The fact that an EPI could lawfully contain provisions about a certain subject matter does not mean that it has to make such provisions. The scope of power for an EPI in the Act is facultative. It provides the outer boundaries of what potentially may be contained in an EPI. A particular EPI may only actually utilise part of the potential of what it could address. The question of the extent a particular EPI has taken advantage of the potential scope of power

can only be determined by examining the terms of the specific EPI. A fundamental step in the interpretation of an EPI is to ascertain what it actually controls, rather than what it could potentially have controlled. The actual scope of power of a particular EPI is usually discerned in the case of an LEP by examining the clause which establishes the Development Control Table (also often titled Land Use Table) and the Special Provisions of the LEP. For despite the broad-ranging potential power of an EPI, most EPIs in practice tend to limit themselves to controlling development, with extensions to cover advertising, heritage conservation and vegetation.

¶3-120 Principles regarding scope and power of an Environmental Planning Instrument The key principles derived from the discussion on the scope of an EPI are set out below: Principle 1: The potential legal scope of an EPI is ascertained solely by reference to the relevant enabling provisions in the EPA Act, primarily s 5, 24 and 26 (Allen, Fridrich). Principle 2: The potential legal scope of an EPI under s 24 is to make provisions for the purposes of achieving any (not all) of the objects of the EPA Act. Section 24 deals with the purposes of making an EPI, of why an EPI is made. Principle 3: The objects of the EPA Act, as provided in s 5, govern the purposes for which the power to make an EPI may be exercised. The objects of the Act are wide and all-embracing. Principle 4: Section 26 of the EPA Act enumerates a number of matters which may be the subject of provisions in an EPI. A provision of an EPI which is “for or with respect to” any of the enumerated matters is within power. Section 26 relates to the contents of an EPI, of what an EPI can contain. Hence s 26 is directed at a different issue to s 24. Sections 24 and 26 are directed at different issues. Both sections need to be complied with, but neither limits the other, as each is directed to different questions. The matters enumerated in s 26 are wide and all-embracing.

Principle 5: The scope of power of an EPI is not limited by any general or preconceived judicial concept of environmental planning formulated independently of the EPA Act itself and acting as a constraint on those statutory provisions (Allen, Fridrich). Principle 6: The scope of power of an EPI does not necessarily coincide with what is a relevant consideration in the decision whether or not to approve a DA. This is due to two factors: (1) The determination of a DA may be governed by the heads of consideration or evaluation criteria. These operate as a secondary limitation on power in addition to the objects of the legislation. (2) A finding that a matter is not a relevant consideration in the determination of one DA may not have universal application but may be confined to the relevance of that consideration to the particular application in question. Hence, authorities on what is a relevant consideration in the determination of a DA should be treated with some caution when considering their applicability to the question of the scope of power of an EPI (Ampol v Warringah). Principle 7: The fact that an EPI could lawfully include a provision relating to a certain subject matter does not mean that the subject matter is regulated by a particular EPI. The scope of power of an EPI provided in s 5, 24 and 26 identifies the potential legal scope of power of an EPI. It is up to the preparers of a particular EPI to decide the extent to which they take advantage of the potential scope power of an EPI and actually utilise that power. The extent to which a particular EPI utilises the potential scope of power can only be determined by an examination of the provisions of the particular EPI in question. Principle 8: An EPI cannot require the acquisition of property without compensation, unless it is authorised by the Act, either regarding development contributions or affordable housing (Meriton).

DEVELOPMENT

¶4-010 Environmental Planning Instruments, powers and development The legal scope of power of what an Environmental Planning Instrument (EPI) may address is extremely broad, but it is only facultative. It is a power which is not required to be utilised by each EPI. Rather, it enables those formulating an EPI to select from among the available potential powers, that is, those powers which are actually required in a particular EPI. In practice, most EPIs confine themselves to utilising powers in relation to “development” with extensions to control advertising, heritage conservation and vegetation destruction. For this reason, detailed consideration is required of the meaning of “development” as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the individual elements contained in that definition. This highlights a self-imposed limitation on the scope of power of an EPI, one not derived from the scope of power of an EPI conferred by s 5, 24 and 26, but rather from a conscious decision of the authors of an EPI to only exercise part of the powers potentially available to them. In addition, there is a constraint on the scope of power of an EPI founded in judicial exclusion from the scope of control of an EPI — of its application to matters of a trivial nature. A further reason why careful consideration is required of the meaning of “development” is that the scope of control of Pt 5 in relation to environmental assessment for matters not regulated by an EPI is limited solely to an “activity” (as defined in s 110). The inclusionary elements of the definition of “activity” mirror the definition of “development”. Thus, an analysis of the definition of “development” in s 4(1) is also applicable to the definition of “activity” in s 110.

¶4-020 Defining development Section 4(1) of the EPA Act defines “development” as comprising the following six elements:

“Development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.” The definition authorises the making of regulations to exclude development of a class or description from the definition. This regulation-making power has been exercised to exclude from the definition of development the demolition of a temporary structure (cl 3A of the EPA Regulation 2000 (NSW) (EPA Regulation)). Somewhat circuitously, it includes within the definition of “development” any act, matter or thing referred to in s 26 that is controlled by an EPI. Thus, if an EPI actually controls any of the acts, matters or things referred to in s 26, then where the term “development” is used in that EPI, it also includes in its meaning any of the acts, matters or things referred to in s 26 that are controlled in the particular EPI in question. While providing a shorthand reference, it is important in interpreting an EPI to consider whether that EPI does control an act, matter or thing referred to in s 26 that is beyond the six elements of the definition of “development”. If it does, then a reference to “development” in that EPI includes the additional act, matter or thing. This regularly occurs where an EPI controls advertising, heritage conservation and the removal of vegetation which otherwise may not be included within the first five elements of the definition of development.

In understanding the meaning of development, there are some key definitions contained in s 4(1) as follows: “building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.” This definition relies on the ordinary meaning of the word “building” but then expands it by including additional items in the definition while excluding others. Section 4(1) defines the following: “temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent) and also includes a mobile structure.” “land includes: (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land.” “subdivision of land has the meaning given by section 4B” (ie see s 4B for its definition). Section 4(2) contains some extended definitions, as follows: “(2) A reference in this Act to: (a) the use of land includes a reference to a change of building use, and (b) the erection of a building includes a reference to:

(i) the rebuilding of, the making of alterations to, or the enlargement of, a building, or (ii) the placing or relocating of a building on land, or (iii) enclosing a public place in connection with the construction of a building, or (iv) erecting an advertising structure over a public road, or (v) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and (c) the carrying out of a work includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or (ii) enclosing a public place in connection with the carrying out of a work, and (d) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and (e) the demolition of a building or work includes a reference to enclosing a public place in connection with the demolition of a building or work, and (f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.”

These are relevant to extending the meaning of the elements of the definition of “development” in s 4(1), particularly the use of land, erection of a building, carrying out of a work and the demolition of a building or work. Clause 3A of the EPA Regulation prescribes a class of development which is excluded from the definition of “development” as follows: “3A Exclusion from definition of ‘development’ For the purposes of the definition of development in section 4(1) of the Act, the demolition of a temporary structure is prescribed as not being such development.” An initial question is whether the definition of development, particularly the element of the erection of a building, is confined to fixtures or whether it extends to chattels. Peter Butt summarises the current law as to what constitutes a fixture as follows: “Under the present rule, whether an item has become a fixture depends primarily on the intention with which the affixer put the item in place. The degree of annexation remains a factor, but chiefly as a pointer to the relevant intention. If the affixer’s intention was the better use or enjoyment of the land, in the sense of furthering the use to which the land is put, then the item is likely to be a fixture, but if the intention was the better use or enjoyment of the item itself (as distinct from the land), then the item is likely to be a chattel. Of course, the intentions may overlap; it then becomes a question of identifying the dominant intention.”1 The answer to this question has changed due to significant legislative changes. In the EPA Act as originally enacted in 1979, s 4(1) defined “building” as follows: “ ‘building’ includes a structure or a part of a structure” Further, s 4(2)(a) provided as follows: “(2) A reference to this Act to — (a) the erection of a building includes a reference to the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or

relocating of a building on land;” Based upon these definitions, when originally enacted, the EPA Act applied only to fixtures and indeed, in relation to changes to a building, only to structural alterations. The original 1979 Act evinced no legislative intention to regulate chattels as buildings, although they could be regulated as a use of land. The Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments) in s 3 and Sch 1 amended the definition of “building” in s 4(1) of the principal Act to the following: “building includes part of a building and any structure or part of a structure, but does not include: (a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or (b) a temporary structure within the meaning of the Local Government Act 1993.” The definition of “temporary structure” under s 3 and the Dictionary of the Local Government Act 1993 No 30 (NSW) (LG Act 1993) at the time provided as follows: “temporary structure includes: (a) a booth, tent or other temporary enclosure, whether or not a part of the booth, tent or enclosure is permanent; and (b) a mobile structure.” Thus, the 1997 Amendments to the EPA Act continued the exclusion of non-fixtures from the definition of a building, and indeed widened the exclusion, so that manufactured homes and temporary structures did not fall within the meaning of a building. The 1997 Amendments retained the requirement to obtain council approval for the installation of a temporary structure on land under s 68 of the LG Act 1993. The 1997 Amendments removed the building approval provisions in the LG Act 1993 and added Pt 4A of the EPA Act with the requirement for a

construction certificate. The result was that the definition of a “building” in the EPA Act was narrowed to exclude temporary structures. This change received no mention at all in the Minister’s Second Reading Speech by the then Minister for Urban Affairs and Planning, the Hon Craig Knowles MP, on the Bill introducing the 1997 Amendments,2 although interestingly, it was introduced just prior to the proceedings in Garbacz v Morton [2002] NSWLEC 17. It became operational after that decision without addressing the issue raised in that case by Sheahan J of the absence of controls for temporary structures and the scope of the definition of a temporary structure. The Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 No 91 (NSW) (2001 Amendments) deleted the definition of “temporary structure” from the Dictionary in the LG Act 1993, deleted the need to obtain an approval from a council for a temporary structure under s 68 of the LG Act 1993, and by s 4 and Sch 2[1] amended the definition of “building” and added a definition of “temporary structure” in s 4(1) of the EPA Act as follows: “building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.” “temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.” The effect of these amendments was to significantly expand the definition of “building” in the EPA Act to include temporary structures. Thus, prior to the 2001 Amendments, an approval under s 68 of the LG Act 1993 was required for a temporary structure, but items which were not fixtures were not included in the definition of a “building” under the EPA Act. After the 2001 Amendments, the definition of a “building” under the EPA Act was expanded to include temporary structures and brought temporary structures, tents, mobile plant and

temporary enclosures within the definition of development, and so potentially within the scope of planning controls. The 2001 Amendments removed the requirement to obtain an approval for temporary structures under s 68 of the LG Act 1993. The effects of the 2001 Amendments were to elevate a minor council approval to a full development application (DA) and significantly expand the meaning of “building” under the EPA Act to include temporary structures and mobile plant, which were not fixtures. The application of the definition of “development” in s 4(1) of the EPA Act is not confined to fixtures for the following reasons: • the definition of “building” in s 4(1) expressly includes any temporary structure or part of a temporary structure • the definition of “temporary structure” in s 4(1) expressly includes a mobile structure, and • irrespective of the first two points, the use of a chattel on land is likely to comprise the use of land, which in itself is an element of the definition of “development”. Additionally, an EPI relying on the broader scope of power contained in s 5, 24 and 26 may regulate far more than “development”, and this broader power does not exclude the regulation of matters other than fixtures. However, the use of things other than fixtures, while potentially amounting to “development”, may be excluded by the application of the de minimus rule, discussed later. It should be noted that “land” is given an extended definition in s 4(1) to include the sea, a bay, lake, river or stream. Thus, the regular use of a river for boats towing water skiers could fit within the definition of “development”. As mentioned earlier, the definition of “development” in s 4(1) of the EPA Act has six elements. It is a similar, but expanded, definition of “development” to that contained in the previous New South Wales planning law relating to interim development control in s 342T(1) of the

Local Government Act 1919 (NSW) (LG Act 1919), which provided as follows: “… ‘Development’ in relation to any land includes the erection of any building, the subdivision of the land and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used.” Additionally, it is also similar (but expanded) to the definition of “development” in the English law in s 55(1) of the Town and Country Planning Act 1990 (UK) (TCP Act 1990), as follows: “… ‘development’, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings as other land.” These comparative provisions are relevant as there are a number of leading cases regarding the previous New South Wales law and the English law which are of importance to understanding the current New South Wales definition of development. Footnotes 1

Butt, P, 2010, Land Law, 6th Edition, Lawbook Co and Thomson Reuters, Pyrmont, p 42.

2

NSW Parliament, 15 October 1997, Legislative Assembly Hansard, p 822–832.

¶4-030 Holroyd Municipal Council v Mangano — consideration of the relationship between the six elements of development The issue of the relationship between the six elements of the definition

of “development” was considered by the NSW Court of Appeal in Holroyd Municipal Council v Mangano [1972] 2 NSWLR 439; (1972) 26 LGRA 357 (Mangano). In Mangano, the Council granted development consent under the County of Cumberland Planning Scheme (County Scheme) for the use of land for the proposed erection of a two-storey building containing four flats subject to conditions. Under the County Scheme, the consent would expire in two years if not commenced. In July 1970, a building approval under Pt 10 of the LG Act 1919 was granted. The building approval would expire within 12 months. Amended plans were lodged in March 1971. Council responded in April 1971, advising that as the development consent had expired in February 1971, the owners could no longer develop the site for residential flats. The owners requested an extension of time which was refused. The owners argued the building approval was deemed to be a development consent under cl 41(2) of the County Scheme and hence, was still on foot. The owners started construction work, and the Council commenced proceedings seeking a declaration and an injunction. Jacobs JA (with Asprey JA concurring and Hardie JA in dissent) found, as follows, at p 444: “The development consent of 3rd February, 1969, is expressed to be a consent for the use of land and in my opinion the consent cannot be construed as consent to the erection of a building. The distinction is clearly made in cl. 41(1) of the Ordinance. If the development application is for consent to the use of land no description of the building or its location on the site is required beyond such particulars as indicated the proposed use of the land. Thus in the present case it was appropriate to grant a consent for the use of land for the proposed erection of a twostorey building containing four two-bedroom flats. These words indicate the proposed use of the land by the general nature of the building to be erected. There are no particulars sufficient to describe the building or its location on the site. Therefore, when the appellant came to the erection of the particular building which

he desired to erect upon the land, he required under cl. 41 approval and consent of the responsible authority, the council, to the erection of that building. The application for consent to the erection of that building would require to be accompanied by plans in triplicate not only identifying the land but also particulars illustrated by drawings sufficient to describe the building and its location on the site. These requirements were met by the building application pursuant to the provisions of cl. 41(2). I can see no escape from this conclusion, and that does not perturb me because it is a conclusion which avoids the absurdity and indeed injustice of a contrary conclusion. It gives effect to the clearly expressed intention of the makers of the Ordinance in the distinction drawn in cl. 41 between an application for consent to use land and an application for consent to the erection of a building. The practical convenience is that an owner of land may put in a preliminary development application under cl. 41(a) without the expense of the preparation of building plans. Then, if it is granted, a full development application under cl. 41(1)(b) can subsequently be made when the responsible authority will be free to consider all those matters proper to be considered by it other than those intrinsic to the consent already given by it under cl. 41(1)(a) which is still current at the time of the second application. It appears to me that the makers of the Ordinance had in mind the same kind of distinction as exists under the English town planning legislation where provision is made for outline planning permission and then subsequently for full planning permission. The distinction between the two kinds of development consent is made clear by Barwick C.J. in his judgment in Gange v Sullivan [(1966) 116 CLR 418, at p. 430]: ‘There are in connexion with the ordinance two distinct concepts — one is that of consent to a change in the purpose for which land or a building may be used and the other is that of approval of a specific plan of a proposed building which doubtless carries out some particular purpose in the use of the land.’

Later at p. 432 Barwick C.J. said: ‘The use of land and the use of buildings are differentiated in the planning ordinance, though it has been found convenient to relate the permissible uses of land to the uses to which buildings could be put in the case of land not devoted to agriculture: cl. 28. The ordinance specifically provides for a consent by the council to a proposed user of land as distinct from its consent to a specific proposal for the construction of a building on land; see cll. 35 and 36. Of course, these consents may be given concurrently. Consent to a proposed user by reference to purpose can be given upon the submission of detailed plans of structures to carry out the stated purpose. But a council may not approve a type of building or structure as distinct from a plan of a specific building, either as, or as a step binding the council in the process of granting an approval of a specific plan of a building. So much was decided in Rocca v Ryde Municipal Council (1961) 7 LGLA 1 where the application was not merely to use the land to achieve a purpose, and, as I read the decision, no more was decided.’ ” Jacobs JA in Mangano highlighted the distinction between an approval for use of land and an approval for the erection of a building in the context of the County Scheme which defined “development” as having the meaning contained in s 342T of the LG Act 1919. A DA may be lodged, and development consent may be granted for one or more of the elements of the definition of development, be it the erection of a building, the use of land, the carrying out of a work, etc. Where a consent is granted for one element of the definition of development, that does not connote that consent is granted for other elements of the definition. Thus, a consent for use does not mean there is a consent to erect a building or structure to further that use. But where the word “development” is used, it includes all six elements of the definition. There is a statutory gloss in the general rule derived from Mangano that approval for one element of the definition of development does not imply approval for other elements. That gloss is contained in s 81A(1) of the EPA Act which provides as follows:

“81A(1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.” Thus, s 81A(1) means that, contrary to the principles in Mangano, where a consent is granted for the erection of a building, that consent also entitles one to use that building for a use specified on the approved plans, provided such a use is noted on the plans as approved. Where a development consent or an EPI uses terms relating to one of the elements of development, then its meaning must be confined to that element alone and not extended to the other elements. An example of this is in the standard heritage conservation provisions of a Local Environmental Plan (LEP) relating to conservation incentives. In most LEPs made prior to the Standard Instrument (Local Environmental Plans) Order 2006, this provision was in terms of the following from cl 38 of the Mosman LEP 1988: “38 Conservation incentives (1) The Council may consent to the use, for any purpose of a building that is a heritage item or of the land on which any such building is erected (including its conversion to multiple dwellings), even though the use would otherwise be prohibited by this plan, if it is satisfied that: (a) the proposed use would not adversely affect the heritage significance of the item or heritage conservation area, and (b) the conservation of the building depends on the granting of the consent, and (c) the amenity of the locality would not be adversely affected by the proposed use of the building or land.”

This clause enables Council to grant consent to the use for any purpose of a heritage building or land even though the use would be otherwise prohibited. It will be noted that the power of the Council is confined to granting consent to a “use” of a building or land and does not extend to the other elements of the definition of “development” such as the erection of a building. This template heritage incentive provision in an LEP has been amended in the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument) to refer to “development” rather than “use”. Hence, it has expanded the power of a council to permit any of the six elements of the definition of “development”, and therefore would include the power to approve the erection of a building. Clause 5.10(10) of the Standard Instrument provides as follows: “5.10 Heritage conservation [compulsory] … (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that: (a) the conservation of the heritage item is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage conservation management plan that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage conservation management plan is carried out, and (d) the proposed development would not adversely affect

the heritage significance of the heritage item, including its setting, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.” Therefore, where the term “development” is used in an EPI or development consent, its meaning includes all six of the elements of the definition. Each of the elements of the definition of “development” will now be examined in turn.

¶4-040 Element 1 — The carrying out of a work “Work” as a noun is not defined in the EPA Act. Its meaning is extended by s 4(2)(c) and (d), although these provide scant assistance in ascertaining the scope of its meaning. The regulationmaking power in s 4(2)(d) to both extend and limit what constitutes a work has not been utilised. Warringah Shire Council v Jackson In Warringah Shire Council v Jackson (1970) 21 LGRA 204 (Jackson), Hope J considered an application by the Council to injunct the continuation of reclamation works on the foreshore of Pittwater at Mona Vale. Following a re-subdivision of land, one owner excavated another owner’s land without the approval of that other owner, resulting in the land becoming inundated where the excavation had occurred. The owner of the previously excavated land commenced to fill the excavated land to restore it to the level it was prior to the unlawful excavation. There was also argument about whether the defendant had constructed a wall. Hope J said at p 209–211 as follows: “What right did the defendants have to restore lot 3 to its previous position? Had they constructed a wall I have no doubt that they would have required an approval under Part XI of the Local

Government Act, 1919, as amended, for whatever its purpose the wall would have been a structure within the meaning of that Part. However, they did not build a wall, but merely restored the land to its previous condition. Is this a ‘work’ within the meaning of the Shire of Warringah Planning Scheme Ordinance, and if it is, is it a ‘work’ which required the consent of the council as the responsible authority? ‘Work’ is not defined either in the Local Government Act, 1919, as amended, or in the Shire of Warringah Planning Scheme Ordinance. In ordinary language a work may be the act of working, or what results from that act, and the word seems to be used in both senses in various parts of the Ordinance. I will not seek to define it, but I think that both the excavation of land and the reclamation of land from the sea can constitute a work for the purposes of the Ordinance. I think that the excavation of the whole or substantially the whole of lot 3 which was carried out in 1967 was a work within the meaning of the Ordinance. Furthermore I think that the filling in of land normally covered by the waters, such as the waters of Pittwater, that is, a work of reclamation, would also normally be a work for the purposes of the Ordinance. What however is the position of an owner whose land has been excavated without his consent by some stranger? Is he entitled without more to fill in the excavation and restore his land to the position in which it was before the excavation, or must he obtain a development approval before doing this? The necessity for such an approval would seem to me to create a strange and anomalous position. … the mere making good of an excavation does not create a structure, nor, as it seems to me, does it result in a ‘work’. The filling in of an ordinary hole which has been excavated in land does not produce a work; it merely produces the land as it previously existed. Likewise it seems to me that the making good of the excavation of lot 3 did not produce something that can be called a work. What was done was not an ordinary reclamation, creating something which previously did not exist, it was simply the restoration of the land to the condition in which it was before it was unlawfully altered. I have been discussing so far an excavation which has been effected without the necessary development approval. What

is the position of an owner whose land is excavated by a stranger as an act of trespass, whether or not there existed any development approval to that excavation? Assuming no structure is involved, it seems to me that the owner is entitled to restore his land to the position in which it was before the trespass was effected, and that there is no resulting work which requires the approval of the council. Moreover, treating ‘work’ as the act of carrying out the restoration and not the result of the restoration I do not think that an activity which results in something which is not a work for the purposes of the Ordinance, at any rate where it is the mere making good of damage unlawfully or wrongfully done to land, can itself be regarded as the carrying out of a work for which the Ordinance requires a development approval.” Given the peculiarities of this case, with the unlawful original excavation, this case may not be authority for a general proposition that restoration of land back to its pre-existing state does not constitute the carrying out of a work and hence, development, especially if the element of the original trespass is removed. Otherwise, restoration works following the erosion of land by flooding or coastal processes would likewise fall outside the ambit of the carrying out of a work. Perhaps the de minimus exception can adequately cater for such circumstances without a general proposition such as advanced in Jackson. It is noted that Hope J in Jackson considered a work may be both the act of working and the results of that act. Hence, he considers a work can be both a process and a product. Council of the City of Parramatta v Brickworks Limited The definition of “a work” has received further judicial consideration by the High Court in The Council of the City of Parramatta v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1; (1972) LGRA 437 (Brickworks). This case related to existing use rights, a subject canvassed in Chapters ¶68–¶69 of this book. For current purposes, the facts in the case are not required, except to the extent that it related to a clay and shale quarry at Eastwood in suburban Sydney, used to provide raw materials for a brickworks. The High Court considered the meaning of “a work” within the context of the County

Scheme. Gibbs J stated at paragraph [20]: “20. Further, in my opinion, the brick pit was an ‘existing work’ within cl. 33. The noun ‘work’ in cl. 33 obviously enough refers to the physical product of labouring operations. It may be doubted whether ‘work’, in its strict dictionary meaning, would nowadays include a quarry, but like the word ‘works’ considered in Merri Creek Quarry Pty. Ltd. v Foletta (1951) HCA 12; (1951) 82 CLR 347, ‘work’ is not of fixed connotation, but elastic or indefinite, and its meaning must depend on the actual language and context of the statutory provision in question (see per Dixon J. (1951) 82 CLR, at p 353). It is apparent from the context of cl. 33 and the definition of ‘existing work’ contained in cl. 3 that the connotation of the word in cl. 33 must include something which has been carried out on land, and is situated on land, but is not a building or structure. Having regard to the wide meaning of the word ‘structure’ it is impossible to resist the conclusion that ‘work’ must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine.” In this case, Barwick CJ, and Menzies and Owen JJ agreed with the judgment of Gibbs J. From the decision of the High Court in Brickworks, the following propositions relate to the meaning of “a work”: • a work is the physical product of labouring operations by humans • a work is something which is done to the land itself, and • a work is not a building or structure. Mulcahy v Blue Mountains City Council Bignold J (in Mulcahy v Blue Mountains City Council [No 2] (1995) 87 LGERA 422 (Mulcahy) at p 428) noted that, based on Brickworks: “… the word ‘work’ in the definition of development is used in the sense of the physical result of work undertaken on land and not in the sense of the physical process of undertaking that work.” Hence, he found that the demolition of barricades did not involve the

carrying out of a work. It is noted that Gibbs J in Brickworks and Bignold J in Mulcahy did not follow Hope J in Jackson who held a work can be the process as well as the product. This issue is of relevance to the question of whether demolition was part of the definition of development prior to its explicit insertion in the definition in s 4(1) by the 1997 Amendments. This question is discussed later. Parramatta City Council v Shell Co of Australia Ltd In Parramatta City Council v Shell Co of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25 (Parramatta v Shell), Street J in the Supreme Court of NSW considered further the meaning of “a work”. It should be noted that Street J’s decision was overturned on appeal by the NSW Court of Appeal in Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 483; (1972) 27 LGRA 102 on different grounds with the NSW Court of Appeal not disturbing Street J’s consideration of the meaning of “a work”. However, Street J’s consideration of the meaning of “a work” has been subsequently cited with approval3 and is considered an important judicial statement of key principles. Parramatta v Shell involved a challenge by the Council to a development consent granted in 1966 by the then State Planning Authority (SPA) for a service station at the intersection of two streets at Parramatta. The land sloped steeply away from the intersection of the streets to a level some three metres lower at the diagonally opposite corner. The approved plans did not contain any vertical dimensions. The company purchased the site after the original approval was granted and sought approval for amended plans. This application was refused both by Council and on appeal by the SPA. While the appeal was pending, the company commenced filling the site, on the basis that the filling was approved by the 1966 consent. Council commenced proceedings to restrain the company and to require removal of the fill. Street J said at p 487–489: “In anticipation of its revised plan being thus approved for purposes of interim development, the defendant in October 1969, caused about 1,200 cubic yards of filling to be dumped on the

land. This filling is still there, and is said to vary in height from street level near the south-west corner of the block to about eight feet six inches near the north-east corner. The filling covers the greater part of the land. It is about four feet six inches deep in the middle of the block. Relatively close to the eastern and northern boundaries the filling slopes down to the natural ground level, there being a ten-feet batter near the eastern boundary and a thirteen-feet batter near the northern boundary. … The first question involves, ultimately, considerations of degree. ‘Development’ in s 343T is defined as including ‘the erection of any building, and the carrying out of any work …’. In Parramatta City Council v Brickworks Ltd the High Court gave some consideration to the meaning of the word ‘work’ in a context related, but not identical, to the context relevant to the present dispute. In the course of his judgment, Gibbs J. said: [Street J then included part of the extract from Gibbs J’s judgment noted previously.] As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a ‘work’, and thus a ‘development’, within the relevant legislation. The building up of a large sports ground or oval could readily and properly be regarded as a ‘work’. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a ‘work’. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a ‘work’. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface

extending over most of a block of land such as this is, in my view, a ‘work’ within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to ‘development’. As such, it could only lawfully have been placed there if the defendant had the requisite authority to carry out such development.” Street J’s judgment indicates the following: • What constitutes, or does not constitute, “development” is a question of degree. • Major filling, such as the building up of a sports ground, could be regarded as a work, while the construction of a garden in a small earth pocket to plant a shrub is not of such significance to be regarded as a work. • In determining whether an action is or is not a work for the purposes of the definition of development, consideration needs to be given to the: (i) size or quantity of the action in itself, and (ii) significance of the action in relation to the specific site on which it occurs. In the successful appeal against Street J’s decision at first instance, the NSW Court of Appeal did not address the issue of what constituted a work in any depth. The NSW Court of Appeal found that the 1966 consent did in fact authorise the filling of the site. Hope J in the NSW Court of Appeal stated at p 638: “Concluding, as I do, that the filling was authorised by the interim development approval, it is not necessary to consider the appellant’s contention it was not a ‘work’ for relevant purposes, but a part of the construction of the building. In any event, I do not understand the importance of this distinction in the present case, for development approval would be necessary on either view.” Kavanagh v Baulkham Hills Shire Council

In Kavanagh v Baulkham Hills Shire Council (1983) 48 LGRA 370 (Kavanagh v Baulkham Hills SC), Perrignon J in the Land and Environment Court of NSW (NSWLEC) heard an application seeking to restrain the Council from proceeding further with the construction of a BMX bike track in a public reserve at Kellyville. The basis of the claim was that the BMX track required development consent from Council, while the Council contended development consent was not required. The BMX track proposed to cover 0.3 hectares and comprised a series of mounds, the heights of which were to be two metres and six metres wide, plus various humps and battered curves surrounded by a fence. Perrignon J concluded at p 377: “In the light of the evidence which has been given as to the size and shape of the proposed track, the height of the proposed earthworks, the material of which the track is to be constructed and the method of construction thereof, I am of the opinion that the track would be a work and that its construction would amount to the carrying out of work within the meaning of col. IV of the said table. The authorities which were cited to me on this point namely Parramatta City Council v Brickworks Ltd (1972) 128 C.L.R. 1; 26 L.G.R.A. 437; Warringah Shire Council v Jackson (1970) 21 L.G.R.A. 204 and Parramatta City Council v Shell Co. of Australia Ltd [1972] 1 N.S.W.L.R. 483 at pp. 488, 489, do not, in my opinion, indicate or require a different conclusion.” Kiama Municipal Council v French In Kiama Municipal Council v French (1984) 54 LGRA 42 (Kiama v French), McClelland CJ heard an application by the Council for a declaration and injunction to prevent the deposition of soil on land on the buffer zone of a wetland. The land had been raised by, at most, 10 cm. The Council argued that the filling did constitute a work, citing Street J in Parramatta v Shell. McClelland CJ held at p 45: “From the consideration of the word ‘work’ by Gibbs J, as he then was, in Parramatta City Council v Brickworks Ltd (1970) 128 CLR 1 at 24, 25; 18 LGRA 395 it is clear that we are concerned with a noun meaning ‘the physical product of labouring operations’. It is clear also from the words of Street J, as he then was, in the Shell

Co case already quoted that not every such ‘product’ requires development consent. Adopting his Honour’s words it depends in this as in that case on the ‘quantity of the filling and its significance in relation to the site’. The affidavit and oral evidence in the present case did not allow me to draw any precise conclusion as to the amount of filling which had been spread on Glenbrook Farm over the past few years. However, I see no reason to doubt the unchallenged evidence of Mr French that the level of the affected land had been raised by only 10 centimetres and the photographs tendered confirm his statement that the affected area is distinguishable from the surrounding area only in respect of the vegetation thereon. What has been done on this piece of land certainly does not meet the test of ‘a work’ as postulated by Street J, as he then was, in the passage cited. It was merely what a prudent farmer would normally undertake to maintain and improve the quality of the vegetation on his land for the benefit of the animals which graze thereon and which provide him with a living. In short, it fell within the description of ‘cultivating fodder’ which is an agreed existing use of the premises.” Footnotes 3

See Kiama Municipal Council v French (1984) 54 LGRA 42 at 44; Kavanagh v Baulkham Hills Shire Council (1983) 48 LGRA 370 at 377.

¶4-050 Element 2 — The erection of a building The EPA Act includes a definition of “building” in s 4(1) which extends its ordinary meaning to include part of a building, and any structure or part of a structure, and includes a temporary structure or part thereof, without providing any assistance as to what is either a building or

structure. Previously, the question has been considered as to whether structure may extend to things which are chattels rather than fixtures, with the conclusion that it was not confined to a fixture. Regina v Lowe In Regina v Lowe (1954) 19 LGR (NSW) 345 (Reg v Lowe), the NSW Court of Criminal Appeal heard an appeal against a conviction of a property owner for constructing a two metre high lattice screen at premises at Mosman on the basis of erecting a building without the consent of Council. The owner submitted the lattice screen did not constitute a building. The Court in a joint judgment of Street CJ, Maxwell and Herron JJ held at p 351: “It is to be noted, first, that the word ‘building’ is not defined as meaning a ‘structure’, but it is provided that it is to include a ‘structure’, and therefore wherever the word ‘building’ occurs in this part of the act it is proper to read after it the words ‘or structure’ … That this is so is clear on the language of the relevant sections in the Act, and the legislature has, in effect, enacted that a structure is not to be erected without the approval of the council. According to the Oxford English Dictionary, the word ‘structure’, in its ordinary meaning, in the English language, means ‘a building or edifice of any kind’ and in its wider sense means ‘a fabric or framework of material parts put together’. A ‘structure’ is something, therefore, built up of component parts, and it was probably with this in mind that the legislature in 1928 made provision, by an amendment to s. 304, that ‘structure’ was to include ‘a wireless aerial, mast or post’. A single post placed in the ground might not be a ‘structure’, but it would be doing violence to the English language to hold that the particular screen in question in these proceedings was not, in common parlance, a ‘structure’. That is the obvious word which would be selected by any normal person who looked at this particular erection. It may be that in other circumstances some limitations might have to be placed upon the wide generality of the word ‘structure’, but this Court is not concerned to lay down an exhaustive definition, applicable in all situations, setting out the full content and meaning of this word. All that the Court is concerned with on this

particular appeal is whether this particular erection is or is not a ‘structure’, and in our view it is impossible to hold that it is not.” Thus, the NSW Court of Criminal Appeal considered a structure is something which is built up of component parts. The Court posed a narrower view of a structure as being something closely associated with the use of a building as a dwelling house, so closely in fact that it could be considered part of the building. The Court did not need to rely on this narrower view of what constitutes a structure to determine the matter. Benz v Blacktown Municipal Council In Benz v Blacktown Municipal Council (1971) 25 LGRA 133 (Benz), the NSW District Court dealt with an appeal against an order issued by the Council for the demolition of an earth wall water storage tank erected at Box Hill across an ephemeral watercourse. The earth wall was about four metres higher than the bed of intersected dry watercourse. The effect of the new dam was depriving a neighbouring landholder of water which otherwise would have flowed into the neighbour’s dam. At the time, s 317B(1A) of the LG Act 1919 empowered Council to order removal of a building erected or altered without Council approval. Further, s 304 of the LG Act 1919 defined building as including a structure or any part thereof. The question was whether the earth wall was a structure and hence, a building. Leslie DCJ referred to earlier English and Australian authorities, which expressed a more limited view of what constituted a structure, and regarded structure as almost a synonym of building. Leslie DCJ then referred to Reg v Lowe and said at p 139–140: “As Mr Murray Wilcox points out in his book The Law of Land Development in New South Wales (1967), the approach to the problem made by the court in Reg. v Lowe [(1954) 19 LGR (NSW) 348] appears to be a considerable departure from the approaches made in previous cases. In the latter the approach was (a) is this particular thing a ‘structure’ and, (b) if so, is it a ‘structure’ of a type intended to be controlled by Pt XI? And as the learned author remarks, ‘It is disappointing that, although most of the earlier authorities appear to have been cited to the court,

there is no discussion of the validity of the approach they make. Confusion is, in my opinion, worse confounded by the apparent qualification suggested by the court in Reg. v Lowe … However, it does seem that their Honours accepted that a ‘structure’ was ‘something built up of component parts’. The particular structure was a lattice fence. Gillard J. in O’Brien v Rosedale Shire [in Australian Gas Light Co. v Valuer-General (1940) 14 LGR (NSW) 149] adopted a similar sort of definition when he said: ‘What are the characteristics that are commonly associated with a structure in popular usage? First, the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components, which when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value’, and he instanced a builder bringing together cement, sand, screenings and steel reinforcing rods which when brought together and laid in a particular way brought into existence some new physical object of practical value. His Honour, however, extended the definition by adding as a characteristic of a structure that there ‘must be an intention on the part of the builder at the time of erection that the new object brought into existence will remain permanently on its site on a permanent foundation’, thus tending, it would appear, rather to agree with the definition of Roper J. which was approved by Jordan C.J. and Halse Rogers J. It seems to me that, even if I should regard the approach of the earlier cases as being no longer applicable and, therefore, approach the matter as was done in Reg. v Lowe and should, therefore, discard the opinion of Markell A.J., cited above, the earth wall with which I am concerned is not a ‘structure’ because I cannot bring myself to the opinion that such a wall is ‘something built up of component parts’ to use the words in Reg. v Lowe or as something ‘having substantially the characteristics of a building or of a permanent framework’ as Roper J. defined a structure or ‘as involving the notion of bringing together a number of distinct and separate physical components’ as Gillard J. would have it, unless each grain of earth, which goes to make up the wall, is to

be regarded as a separate and distinct component or as a component part. This, in my opinion, was not the sense in which the expression ‘component parts’ has been used in any of the cases.” Hence, Leslie DCJ held that the earth wall was not a structure and thus not a building. Benz clarifies further the meaning of a structure as expanded in Reg v Lowe. Benz followed Reg v Lowe that a structure is something built up from component parts, and O’Brien that a structure brings together a number of distinct and separate physical components and that brings into existence some new physical object. Benz does not support the line of earlier cases which suggest a structure was somehow synonymous with a building. Mulcahy v Blue Mountains City Council In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 (Mulcahy), the NSW Court of Appeal dealt with what constituted a building and what was excluded from the definition of building and hence, development under the EPA Act. Ms Mulcahy owned property at Mt York in the western Blue Mountains. Mt York has a lookout and picnic area and various monuments commemorating the westernmost point reached by Blaxland, Wentworth and Lawson in their epic first European crossing of the Blue Mountains in 1813. The Mt York Lookout precinct was part of a public reserve. A road connected the Mt York Lookout with the main highway. As is often the case in rural areas, the constructors of the road built the road in what they presumably considered was the optimal location, irrespective of whether that location coincided with the boundaries of the formal road reserve. Part of the constructed road, providing the sole vehicular access to the lookout, trespassed on land owned by Ms Mulcahy. On becoming aware of the trespass, the Council initiated the process of publicly acquiring the land on which the road was actually built. In response, Ms Mulcahy erected gates across the road where it both entered and exited her land, thereby preventing vehicular access to the lookout. The Council then sought an injunction to restrain Ms Mulcahy from maintaining the gates and an order for their removal. The basis of the Council’s action was that the gates were buildings

which required development consent and none had been granted. The NSWLEC concluded the gates were buildings and granted the injunction. Ms Mulcahy appealed but in the NSW Court of Appeal she did not seek to dispute that the gates were buildings. Rather, Ms Mulcahy challenged the exercise of the Court’s discretion to order removal of the gates. Despite this concession by Ms Mulcahy, the underlying assumptions of her concession raised reservations with the NSW Court of Appeal. The principal judgment was given by Mahoney JA. Clarke JA agreed with the orders proposed by Mahoney JA but only with Mahoney JA’s reasons relating to discretion and not for his reasoning relating to what constituted a building. However, Meagher JA agreed with all of the reasons of Mahoney JA and hence, Mahoney JA’s reasoning in relation to the definition of a building was adopted by the majority of the NSW Court of Appeal. In relation to what constitutes a “building” for the purposes of the definition of “development” in the EPA Act, Mahoney JA said at p 305– 308: “The definitions have traditionally caused difficulty and, I suspect, embarrassment to those whose rights depend on them or who must administer them. It has, for example, been suggested that the definitions must be given their literal meanings and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; ‘building’ includes ‘structure’; and accordingly a structure of any kind may not be erected or altered unless the council’s approval has been formally sought and obtained. But, if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused. If given their full and literal meaning, words such as ‘structure’ and ‘erect’ have a wide operation: cf R v Lowe (1954) 19 LGR 348. If given their literal meaning, they would require formal application for and the obtaining of approval for, for example, the erection of a combination stakes and chicken-wire to support tomatoes growing in a domestic backyard, the erection of a set of bookshelves against a study wall or the setting up and

fastening, to the wall and the floor, of a set of cupboards or the like inside a home. A post or a cairn of stones assembled in the middle of a large field, to mark a furrow or to provide a survey point, would in this sense be a structure. It could not, I think, have been intended that the procedures stipulated for obtaining the relevant approvals should be gone through in cases of this kind. … It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to thing which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong. … The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve. This is, of course, a long recognised approach to the construction of statutes; more recently, it has been described as ‘purposive’.” [p 307] “In principle, the purposive approach to the construction of, for example, ‘structure’ or ‘erect’ would proceed in a manner such as the following. The court would determine the purposes which the legislature sought to achieve [p 308] by prescribing that no structure be erected without council approval. I shall assume, by way of over-simplification, that the purpose was the safety and stability of the structure. The court would then adopt from among the possible meanings of ‘structure’ and ‘erect’ that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose. Accordingly, if the setting up inside the house of a set of bookshelves or the construction of cupboards could have no relevance to the safety of what was involved, such things would be held not to be within the meaning

of such terms. Such kinds of things would be held not within the meaning of the terms.” Thus, all of Mahoney JA’s comments on what constitutes a building are strictly obiter dicta. Mahoney JA’s approach to the meaning of “building” was to note that giving words such as “structure” and “erect” a literal meaning would lead to unintended consequences. He gave some examples of the application of a literal meaning producing somewhat absurd results. He then looked at how the ambit of the legislation could be reduced to avoid absurd outcomes. He considered the better approach to the construction of the statute, whereby making a decision about the ambit of meaning of a provision is made by reference to the purposes for which the statute was enacted. He considered such an approach involved the following steps: (1) determining what purposes the legislature sought to achieve with a particular provision (2) (from the alternative meanings available for the particular provision) choosing the meaning which gives effect to that purpose (3) understanding that meanings which have no relevance to achieving that purpose would not be given to a particular provision. Conomos v Chryssochoides In Conomos v Chryssochoides (1997) 97 LGERA 113 (Conomos), Sheahan J in the NSWLEC considered civil enforcement proceedings in relation to a dispute between neighbours in Bellevue Hill in the eastern suburbs of Sydney. Ms Chryssochoides proposed to undertake additions to a dwelling to add a bedroom, shower and toilet. Development consent for these additions was granted by Council. The works when finished included external pipes on the wall of the dwelling to connect the shower and toilet to the sewer. These pipes were not expressly approved in the plans incorporated as part of the development consent. Given there was no finding that the pipes had development consent, an issue considered by the Court was whether

they needed development consent. Sheahan J noted the neighbouring houses were each about one metre from the common boundary and that the pipes were visible to the neighbours. On the neighbour’s side of the boundary was a built-in barbeque serving as an entertainment area. Sheahan J commented with wry amusement on the evidence presented by the applicant at p 116–117: “Mr Harrison, an acoustical engineer, gave evidence on behalf of the applicants indicating that, on the only occasion he tested the noise, the flushing noise of the toilet at No. 6 measured 10dBA above the background noise level. Harrison’s acoustic assessment took place on the patio at No. 8 on 8 October 1996 between 7.30am and 8.30am, in which time only one flush was detected and it was not known by Mr Harrison whether that flush was a ‘half flush’ or a ‘full flush’. Mr Karavanas, a consultant environmental and traffic planner, who gave evidence for the applicants, said that he finds the noise to be offensive and embarrassing because of its association with the bodily function for which the pipes are required. [p 117] … The noise from the pipes may not of itself offend the EPA guidelines or the applicants’ amenity, but I am satisfied that the association between the flushing of a toilet so close to the entertainment area and the detrimental visual impact of the pipes creates a not insignificant impact on the applicant’s amenity.” Sheahan J adopted the purposive approach to the meaning of a building and structure and concluded as follows at p 120–121: “In this case I can rely on the objects of the Acts in question and agree that they include conferring power on local councils over the general amenity of the neighbourhood and environmental in their locality. Although the pipes are not physically large and may seem of little importance to the general environment, they are certainly not

seen as trivial by those situated closest to them within their environment. For my part, I do not regard the pipes as a trivial matter in themselves, nor their erection as a trivial breach, and I am therefore not convinced that the de minimis principle has any application in this case. The pipes in question are located in a dense neighbourhood in a large city and on this basis I agree that the reasoning of Talbot J. in Burwood [unreported decision File No. 40145/94 of 14 March 1995] is more relevant, and that Mulcahy should be distinguished, in so far as it might be said to read down the meaning and the application of the word ‘structure’. … I accept that the pipes in this case constitute a structure or part of a structure, [p 121] if on no other basis that their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances. The purposes of both Acts include conferring responsibility on a local council to regulate the general amenity of the neighbourhood, and a neighbourhood is after all made up of many individual neighbours whose individual amenities cannot be trivialised. I therefore find that the pipes are relevantly a ‘structure’ and therefore a ‘building’ …” Sheahan J’s judgment is useful for highlighting two issues: • First, he has identified the legislative purpose of the EPA Act as found in the objects in s 5 and interpreted them broadly as relating to amenity and the environment. • Second, he has emphasised that, in determining whether something is or is not a building, its context is important with potentially different outcomes, depending on whether the item is

located in a sensitive location or not. After considering the issue of discretion, his Honour made a declaration that the pipes in question were constructed in breach of the EPA Act. Cariste Pty Ltd v Council of the City of Blue Mountains In Cariste Pty Ltd v Council of the City of Blue Mountains [1996] NSWCA 92 (Cariste), the NSW Court of Appeal considered an appeal in relation to a decision of the NSWLEC that a development consent for a flora and fauna park at Wentworth Falls had lapsed as it was not physically commenced within the required time. On appeal, Simos AJA (with whom Clarke JA and Beazley JA agreed) held that the development consent had not lapsed. The Council then submitted that the works carried out to construct a dam and lay a sewer line could not be relied upon, as those works were building works which then required a building approval under the LG Act 1919, s 304 of which provided that “building includes any structure or any part thereof”. The finished plans for the dam included overflow pipes, outlet control structures, spillways and energy dissipaters, but all the work done was confined to excavation of a trench and the stockpiling of excavated soil. Simos AJA held at p 12 (lines 18–45): “In my opinion, however, since the work done in relation to the proposed pond was limited to excavation and stockpiling of the excavated soil and topsoil from an adjoining area, and did not involve commencement of work on any of the structures described above, the work done was not in respect of a ‘building’ as defined, did not require building consent and was not unlawful. Notwithstanding that it was, no doubt, intended to incorporate those structures later, the actual work done, did not, in my opinion, involve constructing a ‘building’ within the meaning of the Act, since, in my opinion, the ‘dam’ actually excavated did not involve the construction of a ‘structure’ within the meaning of the Act. In my opinion, the ‘dam’ actually excavated in the present case was not a structure within the meaning of the Act because, it does not, in my opinion, fall within the ordinary, natural meaning of the word ‘structure’, and because giving the relevant provisions

a purposive interpretation, as is required to be done (see Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305–308 per Mahoney JA), this particular dam, intended to be a macrophytic pond, to the extent to which it had been constructed in the particular circumstances of this case, prior to the lapsing date of the development application (23 November 1992) was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to ‘buildings’, and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters inapplicable to that particular ‘dam’. I am of the same view, and for the same reasons, mutatis mutandis, in respect of the back-filled sewer trench in which PVC pipe was laid. I am also of the view in relation to the sewer trench that, as submitted on behalf of the appellants, building approval was not required, on the basis that the sewer trench was not simply incidental to a building, but was rather a separate and independent requirement, being the subject of its own condition of development consent, namely, condition 40.” Of interest is that Simos AJA in Cariste seemed to accept that the overflow pipes, outlet control structures, spillways and energy dissipaters were structures and therefore buildings. The works actually done in this case did not amount to a structure or building. They were works done by way of commencing construction of a dam, which when completed would include elements constituting a structure. In addition, Cariste provides endorsement in the obiter dicta remarks of Mahoney JA in Mulcahy. Williams v Blue Mountains City Council In Williams v Blue Mountains City Council [2001] NSWLEC 73 (Williams), Sheahan J considered a dam in the Blue Mountains. Williams had constructed a dam as a sediment pond for a 17-lot subdivision for which development consent was granted. But the dam was not constructed in accordance with the consent. To rectify this, Williams applied to the Council for a building certificate under s 149B of the EPA Act. The Council refused to process the application on the

grounds the dam was not a “building”. Williams then commenced proceedings for a declaration that the dam was a “building”. The dam in question comprised sandstone boulders, a concrete stormwater pipe and manhole, chain wire fence, rock channel and spillway. Sheahan J provided a review of the authorities and then concluded at paragraph [53]: “53. These authorities clearly dictate that the appropriate conclusion for the court to draw in this case is that the ‘construction’ items at issue, as variously described above (in pars 7, 8, 10 and 13), are ‘works’ and not ‘buildings’. Cariste, Mulcahy and Brickworks are all binding authority on this court, and the other cases are at least persuasive towards the same outcome.” Sheahan J’s judgment is unhelpful in analysing at what point a dam, which in Williams’s case was held to not be a structure and hence a building, would become one, such as in the case of the fully constructed dam in Cariste. Simos AJA considered overflow pipes, outlet control structures, spillways and energy dissipaters were structures in Cariste. There are two alternative views: • First, it is the additional elements noted by Simos AJA in Cariste (such as outlet control pipes, spillways, etc) that are the structure themselves, or • Second, a dam with those elements noted by Simos AJA in Cariste becomes a structure itself when those elements are present. Ulmarra Council v Clarence River County Council In Ulmarra Council v Clarence River County Council (1998) 101 LGERA 374 (Ulmarra), Lloyd J dealt with a criminal prosecution relating to the construction of a flood wall contrary to the EPA Act where the issue in question was whether a reinforced concrete retaining wall 37 metres in length and four metres high topped with a metal railing at Ulmarra was a building. Lloyd J adopted the purposive approach to statutory interpretation of Mahoney JA in Mulcahy. Prior to this, he referred to some earlier decisions at p 377–378:

“The definition of ‘building’ in the Act acknowledges that, whilst all buildings may be structures, not all structures are buildings. This has been recognised in a number of cases. The Local Government Act 1919 contained a similar definition of ‘building’. Section 311 of that Act provided that a building shall not be erected or altered unless the approval of the Council is obtained therefore beforehand. In Auburn Municipal Council v H & E Sidgreaves Pty Ltd (1941) 14 LGR (NSW) 232, Herron J said (at 234): ‘Mr Kinsella who argued the matter on behalf of the appellant council urged that a breach of s 311 is committed when anything is added to a building which was not there before, and, in effect, argued that this section cannot be construed so as to limit its application to alterations or additions affecting the form or structure of the building, and that in effect no question of degree can arise. I am unable to agree with this contention. It seems to me that the paramount object in construing penal as well as other statutes is to ascertain the legislative intent and the rule of strict construction is not violated by permitting the words to have meaning which will best effectuate the intention. In my opinion s 311 was designed to prevent a person erecting or altering a building or any part of it so as to render it in substance, different from that approved by the council. If the section was to receive the construction for which Mr Kinsella contends then any addition or alteration would be in breach of it, such as the putting up of a gas bracket, the changing of paper of a room, the fixing of an electric bell, the affixing of a lamp or even perhaps a knocker on the door. To give such a construction to the section as would bring about such a result would in my opinion be wrong and not in accordance with the intention of the Legislature. I think that the section aimed at additions or alterations which would affect the form or structure of the premises.’ In Noarlunga City Corporation v Fraser (1986) 62 LGRA 324,

White J in the Full Court of the Supreme Court of South Australia (with whom Jacobs and O’Loughlin JJ agreed) said (at 331–332): ‘If structures included every type of constructed thing falling within the dictionary definition, that is, if there were not some limit to the nature, or size of structure in which planning authorities are to be interested, then property owners and occupiers are at risk for constructing or adding to or altering (or allowing others so to do) the most minute ‘structures’ on the land without consent, even those of the most temporary and harmless kind. An owner could not construct a cubbyhouse in a tree or a dolls’ house or a child’s tent on the ground in the backyard, even overnight, without consent – or, if they were already there, he could not alter or add to them without consent. A small helium balloon already tied to a tree could not be deflated (altered). A needle is a structure within the dictionary definition. If a needle were also a structure under the Act, a philosopher who wished to push a needle slightly into the soil of the backyard in order to test the number of angels capable of dancing upon its point, would first have to apply for consent. A more homely house-owner might wish to place four sleepers or slabs of wood around some sand to make a sandpit for his children in the corner of the backyard.’” He then discussed Mulcahy and concluded at p 379–380: “I thus accept that a full and literal meaning of the definition of ‘building’ would lead to extraordinary results of the kind discussed by Mahoney JA in Mulcahy. As was observed by Mahoney JA in that case, the too literal construction of definitions of this kind would be both unsatisfactory and wrong. The determination of what is a building is a question of degree (as accepted by Herron J in Auburn Municipal Council v H & E Sidgreaves (at 234)). The subject wall in this case is not of a temporary or an insignificant kind as referred to by White J in Noarlunga City Corporation v Fraser (at 332). Even without importing the words ‘structure or part of a structure’, it seems plain to me that a reinforced concrete retaining wall some 37m in length, 4m in height and topped with a

metal railing is on any view a building. It has an external impact in the sense that it has at least the potential to affect the amenity of the neighbourhood or the environment.” In Ulmarra, Lloyd J did not refer to the context of the item under consideration. For him, the sheer size of the retaining wall was conclusive. But he suggested that a wall of that size would have a potential to affect amenity. Interestingly, he did not advert to the safety issues raised by the prosecuting Council, which would have further supported the application of the purposive approach. Garbacz v Morton In Garbacz v Morton [2002] NSWLEC 17 (Garbacz), Sheahan J dealt with proceedings relating to the erection of a temporary marquee on the flat roof of a dwelling at Vaucluse for a New Year’s Eve function to raise funds for charity. Proceedings were commenced by neighbours seeking removal of the marquee. One of the bases for the action was whether the marquee was a “building” and hence, required development consent. The marquee was 15 metres long, 12 metres wide and five metres high, but was not fixed to the roof but held in place by weights. The marquee was stark white in colour and while not blocking neighbours’ longer views presented what Sheahan J described as “a rather nasty intrusion in the foreground”. Sheahan J concluded at paragraphs [45]–[54]: “45. If the marquee is at law a ‘building’, cl 29 will be activated and a development consent will be required. 46. If the marquee is at law a ‘temporary structure’, it will require an approval from Council under s.68 of the Local Government Act 1993 as amended. 47. The applicants suggest it can be either or both, and thus illegal, through having neither development consent nor Council approval. 48. Time does not permit the complete rehearsal of what appears in the respective written submissions of the parties, but as Gibbs CJ said in Lizzio (at 117) these are indeed questions ‘of fact and degree’.

49. Let me say, bluntly, that I not resile from anything in my judgment in Conomos v Chryssochoides (1997) 97 LGERA 113, especially at 119–121, nor from my application of it in, e.g. Stevens v Cleary (40229 of 1997; 24 July 1998) [See particularly section 7.1 of that judgment]. 50. This marquee has none of the features of a fixture. It is entirely portable, and is designed to be moved from place to place for short periods and/or specific events. The public interest does not suggest, let alone dictate, that any, let alone every, erection, movement or demolition of it should be the subject of a specific Council approval. The Local Government Act definition of ‘building’ excludes a ‘moveable dwelling or associated structure’, and this marquee would seem to me to be a lesser beast than those. 51. I, therefore, prefer the submission made by Mr Conti in this regard, and adopt a purposive approach to the construction tasks I face here. 52. The definition of ‘temporary structure’ includes ‘booth, tent or other temporary enclosure’, but Councils do not, as Mr Conti points out, require approval processes for tents, dog kennels, garden tool sheds, and the like. I acknowledge that this marquee is of substantial size, but in the absence of evident legislative intent to embrace such items I will not draw such an ad hoc distinction. 53. While I concede that a case could be mounted for some regulation of movable function facilities and hire company operators, particularly on questions of soundness, safety, and emergency escape, singling out one New Year’s Eve marquee, on a private property, in a planning case, does not appear to me to be the way to approach it, nor an appropriate law-making role for the court to take, irrespective of what regime may be in place for such regulation when the transition period is over. 54. I have concluded, therefore, that the Class 4 application must fail.”

Sheahan J concluded, in effect, that the marquee was not a building or a temporary structure. Wyong Shire Council v Cohen In Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171 (Cohen), Cowdroy J considered whether the placement of a large demountable site office and a shipping container used for storage constituted a “building”. Cowdroy J found both were buildings. He concluded at paragraphs [19]–[26]: “19. Turning to the metal clad office structure, the Court has little difficulty in determining that such is a ‘building’ as defined in s 4(1) of the EP&A Act. It has been submitted by Mr Cohen that the building is movable, that is not connected to the ground and that therefore it should be regarded as within the exemption contained in the definition of ‘building’. However, it is apparent from the evidence, including the photographs that the office constitutes a building as defined in s 4(1) of the EP&A Act. It is connected to the electricity. There is no suggestion that it is readily moveable as if it were a structure placed on wheels. The office is connected to the telephone. It relies for its support upon piers set into the ground, and is neither a ‘home’ nor a ‘moveable dwelling’ or part thereof. 20. Because of its construction the shipping container raises different issues. It has metal sides and a metal roof and is built of steel components. When the Court is required to categorise such items, the Court is satisfied that the approach of Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305–308 is correct. 21. The Court must take notice of the purpose of the Act. The purpose of the EP&A Act as was considered by Sheahan J in Conomos v Chryssochoides (1997) 97 LGERA 113, especially at 120. In that decision His Honour determined that pipes were relevantly a ‘structure’ and were therefore a building as defined in the Act. 22. Mr Cohen submitted that the container comprised a temporary

structure within the meaning of the LG Act and that it was mobile. There is nothing which would enable the Court to find that it was readily moveable. It was not fitted with wheels, it could not be readily moved and for that reason the Court considers that the exemptions provided in subsections (a) and (b) of the term ‘building’ contained within s 4(1) of the EP&A Act have no application. 23. Mr Cohen relied upon the decision of Sheahan J in Garbatz [sic. Should read “Garbacz”] and ors v Morton and Anor 40225 of 1999, otherwise entitled [2000] NSWLEC 17 in which the Court found that a marquee was not a building. When the facts of that decision are considered it is apparent that the structure in question was of an entirely different nature to the container or the office. His Honour held that a marquee was one which could be readily dismantled and re-erected frequently, and adopted the purposive approach to construction of the definition to determine that the marquee did not qualify as a ‘building’. That is an entirely different factual situation. 24. Mr Cohen’s reliance upon the definition of home occupation does not assist. The home occupation provisions relates entirely to the uses of land, not to physical structures which are erected on land. The definition of home occupation does not exempt a person from obtaining the relevant consents for the purposes of the erection of buildings or other development. Accordingly the home occupation provisions of the LEP are irrelevant. 25. In this case the container comprises a structure as that term is considered in R v Lowe (1954) 19 LGR (NSW) 345 at 351. Accordingly it is a ‘structure’ in the definition of ‘building’ contained in s 4(1) of the EP&A Act. 26. It follows that pursuant to s 76A(1) of the EP&A Act the respondents were obliged to obtain development consent for both the office building and for the container. In the absence of development consent pursuant to the provisions of the EP&A Act the council has established its entitlement to relief.” The decision of Cowdroy J went on appeal to the NSW Court of

Appeal in Cohen v Wyong Shire Council [2005] NSWCA 46, but the only live issue on appeal was the question of costs. However, Hodgson JA (with whom Handley JA and Santow JA concurred) said the following at paragraphs [25]–[32] as follows: “[25] In order that an item be a building or a structure, it does not need to be a fixture, although if it is a fixture, this may be a matter which lends factual support to a conclusion that it is a building or structure. [26] In my opinion, the demountable office is without question a building, even though it is only resting on the ground. The error by the primary judge, in referring to piers set into the ground, was immaterial; and his reasons on this aspect of the case are otherwise correct. [27] As noted above, s 4(2)(b) of the EPA Act provides that a reference in the Act to ‘the erection of a building’ includes a reference to ‘the placing … of a building on land’. Accordingly, if each of these items was a building, there was in each case the erection of a building. [28] The question whether the container was a building is less clear. However, by reason of its size, use and placement, it was in my opinion clearly open to the primary judge to find that, in the circumstances, it was a structure and therefore a building; and no error is disclosed in his reasons. [29] As regards the exceptions in the definition of ‘building’, the only exception possibly applicable is the exception of ‘a temporary structure within the meaning of the Local Government Act 1993’. The relevant definition, set out above, is an inclusive definition; and so the items in question could be temporary structures within the meaning of the LG Act either by reason of the ordinary meaning of the words ‘temporary structure’ or by falling within para (a) or para (b) of the definition. Paragraph (a) clearly has no application. [30] The question whether these items are ‘temporary structures’ in the ordinary meaning of those words, or ‘mobile structures’, is

to my mind not an easy one. The primary judge found that they were not fitted with wheels and were not readily moveable, and these findings are unexceptionable; but they are not conclusive. The question addressed by Taylor J in Quarries Ltd v Federal Commissioner of Taxation (1961) 106 CLR 310 was a different question, namely whether certain sleeping units were ‘plant’; but the comments he made, especially at 316, about these units, which were like the demountable office in this case in that they were moveable with the aid of a mobile crane and semi-trailer, suggest that he may well have considered them as temporary structures. [31] However, if these items were temporary structures within the meaning of the LG Act, so that consent was not required under the EPA Act, consent for their installation was required by s 68 of the LG Act and was not obtained. In circumstances where there is now no live issue about the orders for removal, in my opinion it is not necessary to determine which of these two Acts was breached, and it is preferable to leave determination of this difficult issue to a case where it is necessary to decide it. It is sufficient to say that one or other Act was breached, so that, subject to the question of discretion, the orders made below were justified. [32] Finally, in my opinion, the circumstance that the use of the structures could be considered as ‘home occupations’, and thus as not requiring development consent, does not obviate the need for consents in relation to the erection of buildings or the installation of temporary structures.” In Cohen, the definition of “building” in the EPA Act differed from its current form but not in any substantive way which would affect the applicability of Cohen’s case today. Jambrecina v Blacktown City Council In Jambrecina v Blacktown City Council [2009] NSWCA 228 (Jambrecina), the NSW Court of Appeal considered an appeal against orders of the NSWLEC requiring the removal of four sheds used for storage on land at Doonside in a low density residential area, subject

to a stay to enable development consent to be sought. An application was lodged, refused by Council but permitted after a merit appeal to the NSWLEC. The applicant, however, lodged an appeal to the NSW Court of Appeal claiming the sheds were not buildings before the decision in the merit appeal had been given. The NSW Court of Appeal held the sheds were buildings. Sackville AJA with whom Giles JA and Ipp JA concurred said at paragraphs [41]–[46] as follows: “[41] One purpose of the EP&A Act and of the LEP is to prevent the erection of three-dimensional objects on land that can interfere with the amenity of neighbouring lots. Thus the objects of the EP&A Act include the proper management and development of natural and artificial resources for the purpose of promoting the social welfare of the community and a better environment (s 5). More specifically, the LEP provides (Part 2, cl 9(1)) that the objectives of Residential 2A zoning include: ‘(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.’ [42] In an individual case, the interference with the amenity of neighbouring lots might occur, for example, because of the bulk, unsightliness or proposed use of objects to be erected or used. The evidence before the primary Judge showed that each of the four sheds: • was of a sufficient size, bulk and appearance to potentially have an adverse effect on the amenity of neighbouring lots; • had been located on the Property for a period of some two and a half years prior to the hearing; • although apparently prefabricated, was sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period; and • was used by the appellant in connection with her occupation of the dwelling on the Property.

[43] In view of this evidence, the primary Judge was correct to conclude that each of the four sheds was a ‘structure’ for the purposes of the definition of ‘building’ in s 4(1) of the EP&A Act. The sheds individually and collectively were potentially capable of adversely affecting the amenity of neighbouring lots. Each shed was therefore a ‘building’ unless one of the exceptions stated in paragraph (a) of the definition applied. [44] The relevant exceptions in paragraph (a) are a ‘manufactured home, a moveable dwelling or associated structure’. The evidence did not support a finding that any of the sheds were a ‘portable device … used for human habitation’ and thus did not support a conclusion that any of the sheds was a ‘moveable dwelling’. There was no suggestion that either the appellant or her son lived in the sheds or, indeed, that the sheds were capable of being used as a place of abode or dwelling. In any event, while the sheds were apparently prefabricated and presumably capable of being dismantled and reassembled, they were not ‘portable’ in the same sense as tents, caravans and vans, which are specifically designed to be readily and frequently moved from place to place. [45] None of the sheds was a self-contained dwelling and therefore was not a ‘manufactured home’, as defined in the Local Government Act. Nor were any of the sheds an ‘associated structure’, since they were not designed to enhance the amenity of a moveable dwelling. [46] It follows that the primary Judge correctly concluded that none of the exceptions specified in paragraph (a) of the definition of ‘building’ applied in this case and that the placement of the sheds on the Property constituted the ‘erection of a building’ within the meaning of the EP&A Act.” The interesting aspect of Jambrecina is that in applying the purposive approach to the interpretation of the meaning of structure, the Court referred explicitly to the objects of the EPA Act in s 5, unlike the inferential reference by Sheahan J in Conomos. Further, the Court in Jambrecina referred to the objectives of the zone in the applicable

LEP to assist in the application of the purposive approach. J&J O’Brien Pty Ltd v South Sydney City Council The issue of whether the re-tiling of the façade of the Marlborough Hotel in King Street, Newtown (located in a heritage conservation area) constituted “development” was considered by the courts in J&J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 (O’Brien). The relevant LEP at the time, the South Sydney LEP 1998, provided in cl 23: “The following development may be carried out only with development consent: (a) … (b) … (c) altering a heritage item or building, work or relic within a heritage conservation area by making non-structural changes to the details fabric, finish (including painting of the exterior) or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance; or…” In the course of the proceedings, the question arose as to whether development consent was required for the re-tiling, given cl 23(1) of the LEP. On appeal to the NSW Court of Appeal, the appellant argued that Cowdroy J was wrong in finding that the re-tiling constituted the carrying out of a work. The Council did not advance Cowdroy J’s finding but argued the re-tiling was controlled by virtue of cl 23(1) of the LEP and s 26 of the EPA Act, and so fell into the extended definition of “development” in paragraph (f) of the definition in s 4(1), namely: “(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.”

In the NSW Court of Appeal, Stein JA (with whom Handley JA and Giles JA agreed) agreed with the Council. Stein JA said at paragraphs [19]–[20], [22] and [34]–[36]: “19. The Notice of Appeal alleges that his Honour was wrong to find that the re-tiling constituted the ‘carrying out of a work’ and further that his Honour was in error in finding that development consent was required. Additionally, his Honour erred in not holding that the re-tiling was not undertaken in breach of the Act. The appellant seeks that the court grant the relief which it failed to obtain below. 20. The Council filed a Notice of Contention. This maintains that his Honour’s judgment should be affirmed on the basis that the removal of the existing tiles and re-tiling of the exterior of the premises constituted ‘development’ under the Act because of s. 26 and the ‘acts’ referred to in that provision, which were controlled by the LEP. It is fair to say that the major proportion of the hearing of the appeal concentrated on the contention. … The contention 22. The contention raises the issue not that the re-tiling was ‘a work’ but rather that it constituted ‘development’ within subpara (f) of the definition of development in s. 4(1) of the Act. The definition of ‘development’ at the relevant time included: ‘(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument’. … Consideration 34. In my opinion, the reference in s. 75(1) of the unamended Act to ‘for the purposes of Part 4’ means no more than the development control mechanisms in that Part were applicable, except where the subject matter was not amenable to those controls. It must be kept steadily in mind that when the LEP was made, this section was in the Act. It must be taken to have

informed the meaning and content of the instrument. It is difficult to understand how s. 75(1) could not have affected the meaning of ‘development’ within s. 4 when ‘development’ is pivotal to the operation of Part 4 of the Act. 35. It should be noted in passing that the appellant does not submit that cl. 23 of the LEP is ultra vires. Rather, Mr Hale submits that cl. 23 regulates ‘development’ within its own terms. He submits however that parts of cl. 23 may be ineffective so as to require development consent. In my opinion, the submission gives no recognition to s. 75(1) or subpara (f) of s. 26 of the unamended Act. 36. The transposition of the words in s. 75(1) of the unamended Act to subpara (f) of the definition of development in the amended Act did not, in my view, alter the outcome of cl. 23 of the LEP.” While Stein JA did not determine whether the re-tiling constituted the erection of a building, it is considered doubtful this would be the case. O’Brien is an example of the application of the extended definition of development in paragraph (f) of the definition where any act, matter or thing referred to in s 26 of the EPA Act that is actually controlled by an EPI becomes development, even though it does not fit into any of the previous five elements of the definition of development. The element of the definition of development under consideration is the “erection of a building”. Attention has centred on the meaning of “building” but attention needs also to be given to the component requiring that the action is “erection” of a building. One issue of significance in determining whether an action is the erection of a building rather than another element of the definition of development is that for the erection of a building there are special requirements that do not apply to other elements of the definition of “development”. These are contained in s 81A(2) of the EPA Act as follows: (a) The erection of a building in accordance with a development consent must not commence until a Construction Certificate has been issued under Pt 4A.

(b) For the erection of a building, the Principal Certifying Authority is required to notify the consent authority and the council (where the council is not the consent authority) no later than two days prior to building work commencing. It should be noted that even when an action may constitute an element of the definition of “development” and it is actually controlled by an EPI, it may not require development consent if it is declared “exempt development” in an EPI as provided in s 76(2). Thus, exempt development may be declared by any EPI, including an LEP. In addition, a general State Environmental Planning Policy (SEPP) relates to exempt development, SEPP No 60 — Exempt and Complying Development and SEPP (Exempt and Complying Development Codes) 2008, as well as cl 10 of SEPP (Mining, Petroleum Production and Extractive Industries) 2007 relating to mining activities. In addition, for a “building”, a person may apply for a Building Certificate under s 149A of the EPA Act seeking to legitimise an otherwise unlawful building. These provisions do not apply to the other elements of the definition of “development”.

¶4-060 Element 3 — The demolition of a building or work The question of whether demolition of a building or work was included within the elements of the definition of development relating to the erection of a building and the carrying out of a work has been, at best, uncertain and, in all likelihood, answered in the negative in the definition of “development” in s 342T(1) of the LG Act 1919 (for the pre-1980 New South Wales law), in the English law in s 55(1) of the TCP Act 1990 and in the definition of “development”, as originally contained in s 4(1) of the EPA Act. In its original form, it did not contain the element of “the demolition of a building or work”. This element was added by the 1997 Amendments, which commenced on 1 July 1998. Coleshill and District Investment Co Ltd v Minister of Housing and Local Government

The leading case on this question is the English Court of Appeal decision of Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1968] 1 All E.R. 945 (Coleshill). In Coleshill, the Court was dealing with whether the partial demolition of a building constituted “development” under the then English definition of development which was similar to the current one. Lord Denning MR said at p 497: “These were alterations to a building. This structure was one composite whole (magazines, blast walls and embankment). The removal of part of it was the alteration of the building. The works affected the external appearance of it. … It was argued before us that this was only demolition, and that demolition is not ‘development’. I can see that, if one entire building is demolished, it may not be ‘development’; but it is not necessary to pronounce on that today. Here we have the demolition of a part of a building which amounted to an alteration of it which affected its external appearance. That is, I think, development.” Diplock LJ and Salmon LJ confined their judgments to the partial demolition in the subject case and did not express a general view. Thus, prior to the EPA Act, there was some doubt as to whether “development” extended to include “demolition”. This was a major reason why legislation to protect heritage items was brought forward in New South Wales with the passage of the Heritage Act 1977 (NSW) in advance of the EPA Act (two years later) due to the fact that interim development orders (IDOs) rather than prescribed planning schemes were the dominant form of planning control in New South Wales. If demolition was not included in the definition of development in s 342T(1) of the LG Act 1919 and in s 4(1) of the EPA Act as originally formulated, then the extended power of an EPI under s 24 and s 26 could enable demolition to the controlled by an EPI. However, the amendment of the definition of “development” in s 4(1) of the EPA Act in the 1997 Amendments to explicitly include demolition as an element of the definition of “development” has put this question now beyond doubt.

¶4-070 Element 4 — The use of land A further element of the definition of “development” in s 4(1) of the EPA Act is “the use of land”. This is a change from the formulation relating to use in the New South Wales law pre-1990 under the LG Act 1919 where development, as defined in s 343T(1), included the element of “… any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being use”. It is also a change from the formulation in the current English law where development as defined in s 55(1) of the TCP Act 1990 includes the element of “… the making of any material change in the use of any buildings or other land”. The contrast is that the EPA Act definition of “development” refers to “use” simpliciter, while the current English law and the pre-1980 New South Wales law refer to “change of use”. The rationale for altering the element from “change of use” to “use” was to ensure that previously unlawful uses would not receive protection if that previously unlawful use was not changed after the making of an EPI which required consent for such use. This somewhat anomalous circumstance arose from the High Court decision of Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614; (1979) 39 LGRA 309 (Vumbaca) (see following). Vumbaca v Baulkham Hills Shire Council The Vumbacas resided on land at Kellyville where they carried on a business of a garden and landscape sale centre, a commercial use contravening the Council-prescribed planning scheme. The Council commenced proceedings in relation to the contravention. Subsequently, the Minister suspended the planning scheme and made an IDO covering the Vumbaca land. Thereafter, the Council needed to establish a contravention of the new IDOs. The Vumbacas argued that — with the suspension of the planning scheme and the making of the IDO — the Council ceased to be entitled for any relief as the IDO could only control “development” under s 342T(1) of the LG Act 1919, which included as an element, change of use. The Vumbacas submitted the continuance of the previously unlawful

use did not amount to change of use. The High Court agreed with this submission. It held that the words “last being used” in s 343T(1) should not be construed as meaning “last being lawfully used”. A prior unlawful use was still factually a use and if that unlawful use continued unchanged after the making of an IDO, then there was no change of use and hence no development for which consent needed to be attained. In the High Court Mason, Aickin and Wilson JJ in a joint judgment (with Barwick CJ agreeing) said at p 627 and 630: “We are unable to agree that unlawful user of land can be regarded as ‘non-user’ so as to enable the Court to disregard actual user. We can see no basis for treating the actual use prior to the coming into operation of I.D.O. No. 118 as if it had not occurred at all. … [p 630] On the facts of the present case it is clear that there has been no ‘development’ in the defined sense, unless continuance of a previously unlawful use is development. The definition of development demonstrates that it cannot bear this meaning without impermissible distortion of the words used. In the result we agree with the view adopted by Holland J. that the definition of development controls the extent of the operation of an interim development order.” The definition of “development” in s 4(1) by referring to “use” rather than “change of use” remedies the mischief wrought by the High Court in Vumbaca in effectively legitimising by accident unlawful development. What then does “use of land” actually mean? The leading case is a decision by the Privy Council in Newcastle City Council v Royal Newcastle Hospital [1959] AC 248; (1959) 4 LGRA 154 (Royal Newcastle Hospital). Newcastle City Council v Royal Newcastle Hospital This case is a rating case. Under the then LG Act 1919, “land which

belongs to any public hospital … and is used or occupied by the hospital … for the purposes thereof” is exempt from Council rates. The Royal Newcastle Hospital was surrounded by an enclosed lawn and gardens outside of which was a forested area of 291 acres of effectively vacant land. The question before the courts was whether this vacant land was rateable. The Privy Council judgment was delivered by Lord Denning who said at p 254: “The hospital acquired the land in a series of parcels from 1926 to 1946, namely 92 acres in 1926, 4 acres in 1934, 10 acres in 1944 and 220 acres in 1946. There is no doubt that the hospital acquired all the land for the purposes of the hospital. Indeed, when the latest portion of it (220 acres) was compulsorily acquired in 1946, the Government Gazette expressly stated that it was ‘resumed for the purposes of the Newcastle Hospital’. According to the evidence these purposes were to keep the atmosphere clear and unpolluted: to prevent building upon the land and so act as a barrier against the approach of factories and houses: to provide quiet and serene surroundings for the patients: and to give room to expand the activities of the hospital. The land was undoubtedly acquired and owned for those purposes. But was it used or occupied for those purposes? That is the question. Their Lordships are of opinion that it was used for those purposes. Mr MacKenna submitted that an owner of land could not be said to use the land by leaving it unused: and that was all that had been done here. Their Lordships cannot accept this view. An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he has acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds. In the same way this hospital gets, and purposely gets, fresh air, peace and quiet, which are not mean advantages to it and its patients.” The Privy Council in Royal Newcastle Hospital held that the nature of the use of land could be discerned from the purposes for which it is

acquired and held, and that the use of land did not require it to be occupied or for specific activities to occur on the land. Rundle v Tweed Shire Council; Attorney-General of New South Wales Intervening In Rundle v Tweed Shire Council; Attorney-General of New South Wales Intervening (1989) 68 LGRA 308 (Rundle), Bignold J in the NSWLEC held proceedings seeking to injunct the aerial spraying of a herbicide 2,4-D to eradicate groundsel, a noxious weed, on a rural property near Murwillumbah. The proceedings claimed a breach of Pt 5 of the EPA Act, which applies to an “activity” as defined in s 110. The definition of an “activity” includes similar elements to the definition of “development” in s 4(1), including “the use of land or of a building or work”. Bignold J held that the aerial spraying of herbicides was not a use of land. Bignold J found at p 323–324:

“The applicant’s alternative submission is that the herbicidal spraying is relevantly ‘a use of land’ either as a use per se or as an incident of its use for the purpose of agriculture. In my opinion these submissions must be rejected. To describe the herbicidal spraying of a noxious plant infestation on land as ‘use of land’ is in my opinion far too artificial to be either a meaningful or apposite description. Moreover it does not accord with the established meaning of the concept ‘land use’ in a town planning or environmental planning context. The applicant’s alternative argument is that the herbicidal spraying is to be regarded as an incident of the use of the land for agriculture [p 324] and accordingly is properly to be regarded as a use of land for the purpose of agriculture. … I hold that the herbicidal spraying is not a use of the subject property for the purpose of agriculture. Its obvious purpose is to eradicate an infestation on the property of a declared noxious plant. That infestation, as I have earlier found, generally does not occur in the pasture lands. The evidence does not support a finding that the purpose of the herbicidal spraying is to allow the property to be used for agriculture. Such a purpose would in any event be entirely extraneous to the statutory functions of the second respondent. Accordingly I hold that the herbicidal spraying of the groundsel infestation does not involve a use of the subject land. It follows that that herbicidal spraying is not an activity within the meaning of s. 110.” Bignold J’s reasoning in Rundle in relation to whether herbicide spraying is a use of land is somewhat cryptic. But the result is likely to be correct. Using the reasoning in Royal Newcastle Hospital, it is not a purpose for which land is held, and hence would not constitute a use

of land. Holroyd City Council v Murdoch In Holroyd City Council v Murdoch (1994) 82 LGERA 197 (Murdoch), an absentee owner of land at Wentworthville acquiesced or had knowledge that other persons dumped fill and building rubbish on the land. Council sought relief on the basis that the respondent’s full knowledge of the dumping of fill and his failure to do anything about it or to remove the fill amounted to a tacit use of land for the storage of fill. Stein J found that the owner tacitly approved of the dumping and intentionally turned a blind eye to it. Stein J held at p 201–202: “I am confident in holding that the land has been used since late 1991 for the storage of fill and waste materials; that this use constitutes ‘development’ under the Act and requires the consent of the Council which has never been granted. But, given the factual circumstances, can the respondent be held liable for this unlawful use of his land when he did not expressly permit it? At the highest he gave tacit approval to some dumping (by Wilson) and was aware of regular dumping by third parties and took no steps to prevent its recurrence. Neither of the parties’ legal representatives could find much authority in planning law for the liability of an absentee owner for the use of land where that use has not been permitted by the owner. Nonetheless, there has been some relevant authority in the Court. For example, in Parramatta City Council v Stonewale Pty Ltd (NSWLEC, 22 February 1991, unreported) Hemmings J dealt with the question of the liability of an owner for the use of premises as a brothel in breach of planning law. His Honour considered the discussion by Mahoney JA of the extended meaning of use of land in Ryde Municipal Council v Macquarie University [1977] 1 NSWLR 304; (1977) 35 LGRA 267 as relevant notwithstanding the different area of law in which it arose. Hemming J said (at 5): ‘In my opinion the owner of land may have responsibilities

concerning its use, and can be the subject of declarations and orders of the Court pursuant to s. 124 of the Environmental Planning and Assessment Act in order that a breach of that Act may be remedied or restrained.’ Mahoney JA found that land may be ‘used’ by an owner even though occupied by a third party, whether a licensee or lessee. Indeed, there may be a use of premises for a particular purpose even though the land is not occupied by anyone. Bearing in mind the overall scope and purpose of the Act, (see the objects in s 5) and in particular the aim to prevent unlawful development and use of land in breach of the Act, I see no reason why it is not appropriate to apply the extended meaning of use in the Macquarie University case to the instant circumstances. Botany Council v Tsolakis (NSWLEC, Holland J, 30 November 1988, unreported) is perhaps more to the point, especially in light of its factual matrix. In that case Holland J was asked to restrain the use of premises as a brothel, health studio or escort agency in breach of the Act. The first respondents were the owners of the premises. His Honour said (at 12): ‘… I draw the inference on the balance of probabilities that they knew or at least suspected that unauthorised, if not unlawful, uses were being made of their property and chose acquiescence in preference to objection on their part.’ In granting injunctive relief against the owners, his Honour stated (at 17): ‘The first respondents will be included by reason of their apparent acquiescence in the continued use of the premises for the purposes of prostitution after their notice had been drawn to it by the Council and they had had but failed to take the opportunity to take action to terminate the occupancy of those responsible.’ Both of these cases concern the use of premises as brothels, but I see no reason why the nature of the use carried out should affect the principle.”

Murdoch is not simply authority for the proposition that the deposition of fill and debris constitutes a use of land. It is authority for a land owner, in either acquiescing or knowing but ignoring development on land owned by them contrary to the planning law, whether by a tenant or by invitees or indeed trespassers, being liable for that breach. Hill Top Residents Action Group v Minister for Planning In Hill Top Residents Action Group v Minister for Planning [2009] NSWLEC 185 (Hill Top), Biscoe J considered an application for judicial review of a project approval under Pt 3A of the EPA Act of a regional shooting complex at Hill Top in the Southern Highlands. Part of the approval included a “range danger area” being a buffer area with some fencing and warning signs on land in which the project was not permissible under the applicable EPI. Biscoe J considered whether the range danger area constituted development as a use of land. Biscoe J held at paragraphs [55]–[60]: “[55] ‘Development’ is defined in the EP&A Act to include ‘the use of land’ and ‘the carrying out of a work’: s 4. [56] The applicant submits that depositing of bullets and excluding the public from the range danger area constitutes a use of that land and that the fencing and signage work in that area constitute the ‘carrying out of a work’; and therefore there is to be an impermissible development in Zone E2. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, 82 ALR 1505 at [69] the plurality of the High Court said that ‘recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land’. The Court added that ‘while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas.’ [57] The applicant seeks to fortify its case by reference to the passive uses decision in Newcastle City Council v Royal Newcastle Hospital (1956–1957) 96 CLR 493. The statutory provision at issue in that case created an exemption from rating

under the Local Government Act in respect of land that belonged to a public hospital and was ‘used or occupied by the hospital for the purposes thereof’. The High Court held by a 3–2 majority that land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings was ‘used or occupied by the hospital for the purposes thereof’ and accordingly fell within the rating exemption. Kitto J, in dissent, said at 510: ‘It is surely undeniable that a bare holding of land is neither a use nor an occupation of it, and it makes no difference that the reasons which lead the owner to retain the land unused and unoccupied are logically connected with the pursuit of purposes which he is serving by means of a use or occupation of other land.’ [58] As Taylor J, in the majority, emphasised, the meaning of the word ‘used’ in a particular case will depend to a great extent upon the context in which it is used (at 515). The statutory context in the present case is distinguishable from that in the Newcastle case. Here the reference to ‘use’ occurs in the definition of ‘development’ in circumstances where penalties can apply for carrying out development without consent, or for carrying out impermissible development. In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No. 2) (1997) 42 NSWLR 641 at 648 Sheller JA (Priestley and Handley JJA agreeing) said: ‘It would be curious if a hospital which acquired adjoining land as a buffer to obtain ‘the resultant benefits that are derived from the presence of plenty of fresh air and the avoidance of overcrowding’ (Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499), required development consent, even though it proposed to do nothing whatever to the land, which remained vacant, and, if that consent were refused, would be in breach of s 76.’ Handley JA added at 644: ‘In my opinion the prohibition on the carrying out of

development in s 76(2) by the use of land can only be contravened by an active use and has no application where the use is entirely passive.’ [59] In my opinion, the catching of bullets in the range danger area in Zone E2 is an active use, not a passive area. The use, in my view, is ancillary to the dominant purpose of a shooting range. The raison d’etre for the existence of the range danger area is the shooting range. A shooting range is not a permissible use on the E2 land. Therefore, under cl 11 the catching of bullets on the range danger area is prohibited on the E2 land. The exclusion of the public and the proposed fencing and signage are for the same purpose and are also prohibited. Even if, as the applicant suggests, the proposed use were viewed as for the purpose of catching bullets, it would still be an active and impressible use. [60] In my opinion, the range danger area is so essential to the shooting range that the Project as a whole could not be approved without it and, accordingly, is prohibited.” While it is curious that Biscoe J cites the High Court in Royal Newcastle Hospital and the dissent of Kitto J, rather than the unanimous advice of the four Law Lords of the Privy Council in determining an appeal from that High Court decision, it is correct to distinguish between the context of rating legislation and planning legislation. Handley JA’s distinction between active uses of land and passive uses of land, with only the former constituting the meaning of the use of land for the purposes of the definition of “development”, appears correct. However, as Biscoe J determined, it does not take much action to constitute an “active use”, which in Hill Top was catching some stray bullets and erecting warning signs for bushwalkers.

¶4-080 Element 5 — Any other act, matter or thing referred to in s 26 that is controlled by an Environmental Planning Instrument The residual catch-all element of the definition of “development” is in s

4(1) in paragraph (f): “(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,” was not included in the definition of “development” in the original 1979 EPA Act. It was added to the definition of “development” by the 1997 Amendments in s 3 and Sch 1[2] and proclaimed to commence on 1 July 1998. The terms of paragraph (f) refer to s 26 and not to s 24, reinforcing the view expressed earlier that s 24 relates to why an EPI is made, while s 26 relates to what an EPI provides. Given this distinction, paragraph (f) only refers to the scope of power for the contents of an EPI rather than the scope of power of purposes of an EPI. However, the 1979 EPA Act provided in s 75(1) as follows: “75. (1) In this Part, a reference to development includes a reference to any other act, matter or thing referred to in section 26 which is controlled by an environmental planning instrument.” This was removed by the same 1997 Amendments that added paragraph (f) to the definition of “development”. As Stein JA in the NSW Court of Appeal in J. & J. O’Brien Pty Ltd v South Sydney City Council [2001] NSWLEC 128 found (despite some inventive arguments by Senior Counsel for the Appellant), the transposition of the words from s 75(1) of the 1979 EPA Act to the definition of “development” after the 1997 Amendments had no legal effect (see excerpts above in the discussion of erection of a building). Essentially, paragraph (f) is a shorthand referencing mechanism, where an EPI actually does control things wider than just development using its powers under s 26. And where it does exercise such powers, the matters so controlled fall under the shorthand reference of “development”. Thus, paragraph (f) has no substantive legal effect unless an EPI controls matters referred to in s 26 wider than “development”.

¶4-090 Element 6 — Temporary short-term development

Generally, the temporal duration of development has little effect on whether something constitutes development or not. The only exception is in the application of the de minimus rule in the context of a purposive construction of the meaning of development as discussed previously in Mulcahy and Conomos. However, if something is of a minor nature in the context of the purposes of the EPA Act, the fact that it is of limited duration may assist a court in finding it is not development. Lizzio v The Council of the Municipality of Ryde In Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211; (1983) 51 LGRA 114 (Lizzio), Gibbs CJ observed at p 216–217: “Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case should not be regarded as merely incidental to its use for the purposes of a dwelling-house.” South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust In South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202 (Paul Dainty), Talbot J dealt with an application to injunct the holding of a pop concert by “Prince” for three hours one Sunday evening, with a maximum attendance of 44,000 persons. Talbot J held at p 207:

“I am not persuaded that the so-called single event use of the Sydney Cricket Ground for the proposed concert is not development controlled by the provisions of the City of Sydney Planning Scheme Ordinance. In South Sydney City Council v Morgan Williams, Bignold J placed considerable emphasis on the absolutely transitory nature of the proposed use of the subject premises involved in the conduct of the solitary event unrelated to any actual or present use of the premises. The function proposed in that case was described as a ‘Gallery Celebration’, more precisely described as a promotional event or happening in respect of the proposed establishment within the premises of a record shop, fashion shop and art gallery. The facts in that case are clearly distinguishable from the present. Bignold J had earlier made reference in Australian Children’s Foundation v Blacktown City Council (1987) 62 LGRA 96 to the observations of Gibbs CJ in Lizzio v Ryde Municipal Council which I have already mentioned. His Honour did not have to decide the question in the Blacktown case and the present proposed concern bears little resemblance to the example of a fete to raise money for a charitable purpose in the context of a dwelling-house referred to by Gibbs CJ in Lizzio.” Gosford City Council v Popran Creek Pty Ltd In Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208 (Gosford v Popran), Stein J considered an application for declarations and injunctions relating to the holding of an event described as the Happy Valley Open Air Festival on rural lands. It was estimated that up to 2,500 paying patrons would attend with 500 vehicles. Patrons were to camp on the site and temporary toilets and showers would be provided. Over 20 bands and 40 disc jockeys were to participate, with 80 food vans and stalls, and a scaffold stage was to be erected. Stein J provided a comprehensive review of this question at p 212–215: “I should briefly mention some cases relevant to the issue of whether what is proposed constitutes the use of land and therefore development. The first in point of time is Australian Children’s Foundation v Blacktown City Council (1987) 62 LGRA

96. The decision of Bignold J concerned a large concert (or two) to be held within the Parklea Markets. It is important to keep in mind that his Honour was dealing with an appeal under s 97 of the Environmental [p 213] Planning and Assessment Act a refusal or deemed refusal of the Blacktown City Council to grant development consent to the event. His Honour determined the case by granting of development consent subject to a number of conditions. Notwithstanding that it was necessary for his Honour to have jurisdiction to be satisfied that the event required development consent, he mentioned (at 98) the submission of the applicant that the proposed concert was a one-off event and did not therefore constitute a use of land in the planning sense. In this circumstance one might hesitate to ask why the case proceeded at all. However, be that as it may, reference was made in the judgment to remarks by the Chief Justice of the High Court, Sir Harry Gibbs, in Lizzio v Ryde Municipal Council (1983) 155 CLR 211; 51 LGRA 114 about the illustration of a householder having an annual fete on his land to raise money for charity and his Honour saying that the use of land in that way might be regarded as simply incidental to the use of a dwelling house. It needs to be said that no such submission is made here that this use for an open air art festival is in any way to be incidental to the present use of the subject land. Bignold J went on to say that he proceeded upon the assumption that the use of the premises on two consecutive evenings for the purpose of staging a concert is development requiring consent. Nevertheless he confessed that he had a doubt about this and referred to town planning legislation in England in 1971 and the English M Grant (ed), Encyclopaedia of Planning Law and Practice (1969) as to the use being too insubstantial or brief to constitute development, which he found persuasive and supported his doubts. He then proceeded with the case on the assumption that it was development. Quite obviously his comments are obiter and bythe-way. Nevertheless, they should be taken into account.

The next case of relevance, and relied on by Mr Lloyd, is Moore v Kwiksnax Mobile Industrial & General Caterers Pty Ltd; Ex parte Kwiksnax Mobile Industrial & General Caterers Pty Ltd (1990) 70 LGRA 38 in the Full Court of the Supreme Court of Queensland. This was a criminal prosecution of a defendant for breach of a town planning scheme in that at a snack bar, kiosk or food outlet the defendant sold pies, sandwiches and drinks and parked temporarily on sites for that purpose. He was convicted by a magistrate of a breach of the planning law. The Full Court held that, in the context of the particular clause of the town planning scheme, uses of some substance and permanence were contemplated rather than some transitory act which occurs briefly on the land albeit repeatedly and on a regular basis. Accordingly, it did not constitute a use of the land. This is to be found (at 40) in the judgment of Connolly J, which was concurred in by the other members of the Court. The particular facts of the case were that the person concerned drove to particular land with a van which was used to dispense snacks and would stay there as long as customers were in evidence for periods of 15 minutes or less. The next case is another case of Bignold J and is unreported. It is South Sydney City Council v Morgan Williams (Land and Environment Court of New South Wales, Bignold J, 3 September 1991, unreported). This matter concerned premises in Oxford Street Darlinghurst and the use of those premises for a one day function proposed to take place in advance of what was hoped to be the consented use as a record shop, fashion shop and art gallery. The function was advertised to include music, choreographed dance and fashion displays. At the point of time that the case was heard by the Court and the function was to take place, the respondent had no consent to the proposed use as a record shop etc. The Council sought an injunction to restrain the function which his Honour [p 214] refused. At 4 Bignold J gave reasons for his decision. He stated that in his view it was not a use of the building within the meaning of that expression the definition of ‘development’ in s 4 in the

Environmental Planning and Assessment Act. He quoted as authority his decision in Australian Children’s Foundation v Blacktown City Council and Moore v Kwiksnax. His Honour added: ‘In so concluding I place considerable emphasis on the absolutely transitory nature of the proposed use of the subject premises involved in the conduct of the solitary event unrelated to any other actual or present use of the premises.’ The last case to mention is colloquially known as the Prince case but the proper title is the South Sydney City Council v Paul Dainty Corporation Pty Ltd (1992) 75 LGRA 202. This was a concert at the Sydney Cricket Ground by Prince in respect of which large numbers of tickets, I think some 20,000, had been sold. Potentially the numbers of tickets could be 44,000 and one of the issues that Talbot J had to determine was whether or not the proposed use for the concert was development for the purpose of the Environmental Planning and Assessment Act. At 207 he dealt with the issue and stating: ‘I am not persuaded that the so-called single event use of the Sydney Cricket Ground for the proposed concert is not development.’ He then referred to Morgan Williams, the unreported case of Bignold J. In respect of this he said that the facts were clearly distinguishable. His Honour also made reference to Australian Children’s Foundation v Blacktown Council saying that Bignold J did have to decide the question in the Blacktown case. This is perfectly correct. Talbot J went on to find (at 207) that the proposed use was relevantly ‘development’ for the purposes of the Environmental Planning and Assessment Act. It seems to me patently obvious that what is proposed in this case is quite different to what was proposed in Morgan v Williams. The facts cannot be compared in any way and on this basis alone I would distinguish it from this case. I am not bound by judgments of other judges in this Court. As a

matter of judicial comity I would always follow another judge’s decision unless I am satisfied that it was wrongly determined. In this situation I have an obiter remark in the Blacktown case together with what was said by Bignold J in Morgan Williams and what was said by Talbot J in the Paul Dainty case. I add that the Queensland case to which I have been referred (Moore v Kwiksnax) does not seem to be relevant to the issue. It was dealing with different legislation and a different definition. It was also a criminal case and the facts are so remote from this matter as to have little or no relevance. In any event, the question of the transience of a use is very much a question of fact and degree. Here it seems to me the nature of the use (which I have described from the respondents’ own evidence) the duration of the use, the number of patrons, the activities which will occur, the scope of those activities, the camping on the site, the large number of motor vehicles expected and the potential, I emphasise the word potential, that the impacts on the environment are such that it appears to be self-evident that what is proposed constitutes a use of land and ‘development’. If I had to choose between the decisions of Talbot J and Bignold J, I would have no doubt that I should follow the decision of the former. I think that it is clear that there are more similarities between the facts of that case than, for example, the Morgan Williams case in relation to the use of the premises in [p 215] Oxford Street for one night, the nature of that use and the nature of those premises. I conclude that there is no doubt in my mind that what is proposed is development. It is the use of the land and is therefore prohibited, not being permitted in the subject zone. It follows that what is proposed, indeed what is occurring, is in breach of environmental and planning law.” Baulkham Hills Shire Council v Horseworld Australia Pty Ltd Similarly, in Baulkham Hills Shire Council v Horseworld Australia Pty Ltd (1997) 95 LGERA 194 (Baulkham Hills SC v Horseworld), a dance

party for about 1,000 persons in an equestrian facility was held to be development, as a use of land. Hence single or individual events constitute a use of land and development, unless otherwise exempt by the de minimus rule.

¶4-100 Principles regarding the meaning of “development” The key principles derived from the discussion on the meaning of “development” are set out as follows: Principle 1: “Development” is but one of the acts, matters or things which may be the subject of provisions in an EPI (s 26). The elements of the definition of “development” are largely mirrored in the inclusionary elements of the definition of an “activity” (s 110) providing the scope of power for Pt 5 relating to Environmental Assessment. Principle 2: “Development” has six elements: (1) use of land (2) subdivision of land (3) erection of a building (4) carrying out of a work (5) demolition of a building or work, and (6) any act, matter or thing referred to in s 26 that is controlled by an EPI. (Section 4(1)) Regulations may exclude development of a class or description from the definition, and a regulation has been made to exclude the demolition of a temporary structure from the definition of development (cl 3A of EPA Regulation). Principle 3: “Building” is given an extended definition to add to its

ordinary meaning; part of a building, a structure or part of a structure (including a temporary structure or part thereof). The definition excludes from its meaning a manufactured home, moveable dwelling or associated structure (or part of any of these) (s 4(1)). “Temporary structure” is given an extended definition to include a booth, tent or other temporary enclosure and also includes a mobile structure (s 4(1)). Based on these definitions, the application of the definition of “development” is not confined to fixtures but can extend to chattels. Principle 4: Each of the elements of the definition of “development” has a separate and distinct meaning. The approval of one element does not mean there is approval for another element unless that was explicitly obtained. Thus, a consent to use land does not include an approval to erect a building to conduct that use (Mangano). There is one statutory exception to this principle, namely that where a consent is granted for the erection of a building, that consent also entitles one to use that building for a use specified on the approved plans, provided such a use is so noted on the approved plans (s 81A(1)). Where the word “development” is used, it includes all six elements of the definition. Principle 5: A “work” has the following characterisations: • A work is the physical product of labouring operations by humans (Brickworks). • A work is something which is done to the land itself (Brickworks). • A work is not a building or structure (Brickworks). • A work is not the physical process of doing work, but it is the physical result of that work (Mulcahy, Brickworks). Hence, demolition is not a work. Principle 6: A structure, which is included in the definition of a “building”, has the following characterisations: • A structure is something which is built up of component parts (Reg v Lowe).

• A structure brings together a number of distinct and separate physical components, which when constructed or brought together, form or make some other substantial object (Benz). • An earth wall is not a structure as it is not built up of component parts (Benz). Principle 7: Things which may constitute a work or a building by literal application of the definitions may be excluded on the basis of the de minimus rule that the law does not concern itself with trifles. The application of the de minimus rule to the definition of work or building is undertaken by adopting a purposive construction of the meaning of these words. This approach involves the following steps: (1) determining what purposes the legislature sought to achieve with a particular provision (2) (from the alternative meanings available for the particular provision) choosing the meaning which gives effect to that purpose, and (3) understanding that meanings which have no relevance to achieving that purpose would not be given to a particular provision. (Mulcahy) Principle 8: In applying a purposive construction to the meaning of a work and a building, the legislative purpose is found in the objects of the EPA Act in s 5 (Conomos, Jambrecina) and the zone objectives in the applicable EPI (Jambrecina). These objectives are broad and relate to amenity and the environment (Conomos). Principle 9: In applying the meaning of a work or a building that gives effect to the legislative purpose, the following should be considered: • Whether or not something constitutes development is a question of degree (Parramatta v Shell). • In determining whether an action constitutes development, you

need to take into account: (1) the size and quantity of the action itself, and (2) the significance of the action in relation to the context or site where it occurs and its sensitivity. (Parramatta v Shell, Conomos) Principle 10: In applying the de minimus rule, the courts are required to exercise judgment on the question of degree. In so doing, the courts have held that the following is not development: • the erection of gates to exclude trespassers (Mulcahy) • top dressing of grazing land (Kiama v French) • a temporary marquee on a flat roof of a dwelling (Garbacz), and • restoring land excavated unlawfully (Jackson). Similarly, the courts have held the following is development: • major filling to build up a sports ground or the build-up of a site to a considerable height (Parramatta v Shell) • construction of a BMX bike track in a public park (Kavanagh v Baulkham Hills SC) • erection of a lattice privacy screen (Reg v Lowe) • installation of external sewer pipes on the walls of a dwelling house that were likely to cause an impact on the amenity of neighbours (Conomos) • erection of a concrete flood wall (Ulmarra) • placing on land of demountable site office and a shipping container used for storage (Cohen), and

• erection of sheds in a low density residential area (Jambrecina). Principle 11: The distinction between what constitutes a “building” as opposed to a “work” is significant because, for a building (but not a work), there is a requirement to obtain a Construction Certificate and to notify the consent authority and council before commencing building work under s 81A(2) of the EPA Act. Also, a building (but not a work) can be subject to an application for a Building Certificate under s 149A to regularise an otherwise unlawful building. Anything that constitutes a building (including a structure) is excluded from a work (Brickworks). Hence, something cannot be both a building and a work, and if it is a building it is precluded from being a work. The courts have held the following are not buildings: • an earth wall (Benz) • a sedimentation pond of sandstone boulders (Williams), and • the excavation and stockpiling of soil for a dam, and the excavation and filling of a trench in which a PVC pipe was laid (Cariste) (but note the qualification by Simos AJA in Cariste that some elements of a dam are structures and are therefore buildings). Principle 12: A use of land can be discerned from the purpose for which it was acquired and held (Royal Newcastle Hospital). A use of land can occur when an owner either acquiesces or knowingly ignores activities by a tenant, invitee or trespasser (Murdoch). For a use of land to constitute development it needs to be an active use; if the use is entirely passive it does not constitute development (Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 82 ALR 1505, Hill Top). Principle 13: Development which is only of limited duration is not excluded from being development due to it being of a transient or short-term nature, unless it is otherwise exempt by virtue of the de minimus rule (Paul Dainty, Gosford v Popran). Types of temporary short-term development which have been held to be development under the EPA Act include:

• a three-hour pop concert for a maximum of 44,000 persons (Paul Dainty) • an open air pop festival at a rural property (Gosford v Popran), and • a dance party for 1,000 persons at an equestrian facility (Baulkham Hills SC v Horseworld). Temporary short-term developments which have been suggested or held not to be development, presumably based on the de minimus rule include: • a once-a-year backyard fete to raise money for a charity (Lizzio) • a promotional event at a shop (Morgan Williams (see judgment in ¶4-090)), and • a large concert at Parklea Markets (Australian Children’s Foundation v Blacktown), although it has been suggested that this was wrongly decided (Gosford v Popran). Principle 14: The definition of “development” for an individual EPI may extend to any other act, matter or thing (over and above the other five elements of the definition of “development”) which is referred to in s 26 (which outlines what an EPI may provide for) and which is controlled by that EPI. This is a shorthand referencing mechanism, in circumstances where an EPI actually does contain provisions wider than just controlling development authorised by s 26. It enables those broader provisions to fall within the description of development. Hence, you need to ascertain whether an EPI does contain provisions broader than controlling development to establish that the definition of development in that EPI is likewise expanded. EPIs often utilise the powers in s 26 more broadly than controlling development in relation to advertising, heritage conservation and vegetation removal (O’Brien), although often this is rather subtle. Principle 15: Development may be declared to be “exempt development” by an EPI. Exempt development is exempted from the control provisions of the EPI for which it is so declared.

OTHER KEY DEFINITIONS ¶5-010 Definition of “control” and “ecologically sustainable development” Section 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) contains some additional definitions of significance in understanding the scope and power of an Environmental Planning Instrument (EPI) under s 5, 24 and 26. These include “control” and “ecologically sustainable development”, as follows: “control, in relation to development or any other act, matter or thing, means: (a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or (b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.” “ecologically sustainable development has the same meaning it has in section 6(2) of the Protection of the Environment Administration Act 1991.” Ecologically Sustainable Development (ESD) is explained in terms of its requirements and how these can be achieved in s 6 of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act), as follows: “6 Objectives of the Authority (1) The objectives of the Authority are: (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development, and

(b) … (2) For the purposes of subsection (1)(a), ecologically sustainable development requires the effective integration of economic and environmental considerations in decisionmaking processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle — namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequence of various options, (b) inter-generational equity — namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity — namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms — namely, that environmental factors should be included in the valuation of assets and services, such as: (i) polluter pays — that is, those who generate

pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.” The four principles of ESD in the POEA Act are augmented by an additional one in s 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), as follows: “3A Principles of ecologically sustainable development The following principles are principles of ecologically sustainable development (a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations; (b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measure to prevent environmental degradation; (c) the principle of inter-generational equity — that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decisionmaking; (e) improved valuation, pricing and incentive mechanisms should be promoted.”

¶5-020 Definition of “environment” In s 4 of the EPA Act, “environment” is defined as including the following: “environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.” The definition of “environment” in the EPA Act is an anthropocentric one, with humans at its centre. It stands in contrast to more recent biocentric definitions, such as those set out in the POEA Act and EPBC Act (presented below). In the Dictionary of the POEA Act, “environment” is defined as meaning/including the following: “environment means components of the earth, including: (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c).” In s 3 of the EPBC Act, “environment” is defined as including the following: “environment includes:

(a) ecosystems and their constituent parts, including people and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of locations, places and areas; and (d) heritage values of places; and (e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c).” The definition of “environment” in the EPA Act and the more recent biocentric definitions share a common feature. Environment is not confined to the biophysical environment, but includes all aspects of the surroundings of humans, both individually and collectively. Hence, it includes the social environment, the economic environment and the cultural environment, as well as the biophysical environment. This expansive definition of environment provides an equally expansive head of power in relation to the contents of an EPI. While the differences between an anthropocentric and biocentric definition of environment reflect different points in the development of environmental philosophy, in terms of their legal effect there appears to be no difference between them, with neither wider than the other. The EPA Act definition of “environment” is the same as that contained in the now repealed Environment Protection (Impact on Proposals) Act 1974 (Cth), with similar anthropocentric definitions of environment used in many international declarations and treaties.

¶5-030 Principles regarding the meaning of “environment” The key principles derived from the discussion on the meaning of “environment” are set out below: Principle 1: The definition of “environment” is anthropocentric and all-

embracing. It embraces all aspects of the surroundings of humans and includes aspects which surround a human as an individual or collectively. It is not confined to the biophysical environment, but includes the social environment, economic environment and cultural environment. This definition is the basis for the expansive purposes for which an EPI can be made under s 24 and the expansive contents of an EPI under s 26. Principle 2: The encouragement of ESD is one of the objects of the EPA Act in s 5 and hence, is a purpose for which an EPI may be made under s 24. Further, as ESD is a process for protecting, improving or utilising, to the best advantage, the environment, provisions relating to ESD may form part of the contents of an EPI under s 26. (Note: The extent to which there are mandatory obligations on decision-makers under the EPA Act in relation to considering ESD is discussed later.)

ENVIRONMENTAL PLANNING INSTRUMENTS, TYPES OF DEVELOPMENT, ZONING, PROHIBITIONS AND COMMENCEMENT ¶6-010 Designated and advertised development The Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) includes specific powers enabling an Environmental Planning Instrument (EPI) to declare development either “designated” or “advertised” development, to require consent and concurrence, or to prohibit absolutely development. Additionally, the EPA Act includes formal provisions regarding the making, operation and inspection of an EPI. The consequences of development being either designated or advertised development are considered later in Chapters ¶38 and ¶39. At this point, however, it should be noted that an EPI is empowered to contain provisions declaring development to be either designated or advertised development, but not both, as they are mutually exclusive.

Sections 29 and 29A provide the following: “29. Designated development: declaration by environmental planning instruments An environment planning instrument may contain provisions declaring any class or description of development (whether by reference to the type, purpose or location of development or otherwise) to be designated development for the purposes of this Act. 29A. Advertised development (1) Without limiting the generality of section 26(1)(b), an environmental planning instrument may identify development, other than designated development, as advertised development. (2) Any such provisions may add to or extend, but not replace or reduce, the provisions of the regulations concerning the notification and advertising of development and the making of submissions relating to advertised development.” However, it should be noted that EPIs are not the sole source of the power to declare designated or advertised development. Section 77A provides: “77A. Designated development Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.” Thus, development may be declared to be “designated development” by either an EPI or by regulations. In practice, the designating of development is largely done by regulation, particularly by Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). However, there are instances where development is declared designated development by an EPI such as in the following State Environmental Planning Policies (SEPPs):

• SEPP No 14 — Coastal Wetlands, cl 7, and • SEPP No 26 — Littoral Rainforest, cl 6. In practice, development is not declared designated development by a Local Environmental Plan (LEP). During the early days in the operation of the EPA Act, the then Warringah Council prepared an LEP declaring certain State government developments to be designated development. In response, the Minister for Planning issued a direction under s 117(2) of the EPA Act (the current form of which was issued on 1 July 2009) that a planning proposal is not to identify development as designated development without the approval of the Director-General of the Department of Planning. Advertised development is defined in s 4(1) of the EPA Act as follows: “advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan.” Thus, development which is not designated development may be identified as “advertised development” in three ways: (1) by regulations (2) by an EPI, or (3) by a Development Control Plan (DCP). Advertised development is defined in cl 5 of the EPA Regulation and discussed further in Chapter ¶39 (in relation to types of development applications). In practice, all three methods are used, making the task of ascertaining whether development is “advertised development” a rather complex task. However, given that most councils have adopted policies to advertise all development, the inconvenience of this may not be too great.

¶6-020 Zoning, prohibitions and commencement The EPA Act also sets up the legal mechanism for a system of zoning by providing that an EPI may include provisions that development may be: • carried out without the need for consent under the EPA Act being obtained • carried out only with consent under the EPA Act being obtained, or • absolutely prohibited. It may also provide that, where an EPI provides that development requires consent, the EPI may also provide that such consent cannot be granted except with the concurrence of such Minister or public authority as is specified in the EPI. Further, where concurrence is required, the EPI is required to state the matters to be taken into account in deciding whether concurrence should be granted. Sections 30 and 31 provide as follows: “30 Consents and concurrences (1) Without limiting the generality of section 26(1)(b), an environmental planning instrument may provide that development specified therein: (a) may be carried out without the necessity for consent under this Act being obtained therefor, or (b) may not be carried out except with consent under this Act being obtained therefor. (2) Where provision is made in accordance with subsection (1)(b), the instrument may provide that a development application in respect of development specified in the instrument shall not be determined by the granting of consent under this Act, except with the concurrence of such Minister or public authority as is specified in the instrument to the carrying out of the development.

(3) An environmental planning instrument which makes provision in accordance with subsection (2) shall state the matters which shall be taken into consideration in deciding whether concurrence should be granted. (4), (5) (Repealed) 31 Prohibitions Without limiting the generality of section 26(1)(b), an environmental planning instrument may provide that development specified therein is prohibited.” Section 30(2) limits potential concurrence bodies to a Minister or public authority. Public authority is defined in s 4(1) as follows: “public authority means: (a) a public or local authority constituted by or under an Act, or (b) a government Department, or (c) a statutory body representing the Crown, or (d) a chief executive officer within the meaning of the Public Sector Employment and Management Act 2002 (including the Director-General), or (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or (g) a person prescribed by the regulations for the purposes of this definition.” Clause 277 of the EPA Regulation prescribes additional persons as a public authority as follows: “277 Public authorities For the purpose of the definition of ‘public authority’ in section

4(1) of the Act, Australian Rail Track Corporation Ltd is prescribed, but only so as: (a) to enable the corporation to be treated as a public authority within the meaning of Part 3A of the Act in relation to development for the purposes of rail and related transport facilities that is declared to be a project to which Part 3A applies under State Environmental Planning Policy (Major Development) 2005, and (b) to allow the corporation to be a determining authority within the meaning of Part 5 of the Act for: (i) development for the purposes of rail infrastructure facilities, development in or adjacent to rail corridors and development for prescribed railways or railway projects that is permitted without consent by a public authority under State Environmental Planning Policy (Infrastructure) 2007, and (ii) any other development for the purposes of rail infrastructure facilities and development in or adjacent to rail corridors within the meaning of that Policy that is permitted without consent under any other environmental planning instrument.” The power for an EPI to prohibit development continued powers which previously were available to prescribed planning schemes and interim development orders under Pt 12A of the Local Government Act 1919 (NSW). It is noted that such a power does not exist for plans under the English law in the Town and Country Planning Act 1990 (UK). A prohibition in an EPI is an absolute bar on the development concerned, with the exception of critical infrastructure and concept plan approvals under Pt 3A of the EPA Act or declaration as a State Significant Site and hence, rezoning through the SEPP (Major Development) 2005. Faced with a prohibition, unless any of these exceptions apply, prohibited development may only proceed if a new EPI is made to remove the

prohibition and to make the development permissible. The EPA Act contains formal provision for the making, operation and public inspection of EPIs. These provisions are contained in s 34 and are summarised below: • EPIs are required to be published on the NSW legislation website (see www.legislation.nsw.gov.au). • EPIs commence to operate on the date of publication or any later date specified in the EPI. • EPIs are available for public inspection, free of charge, at the offices of the Department of Planning and the respective Council. • Maps or other incorporated material are not required to be published on the NSW legislation website, but they are required to be available for inspection from the Department and Council.

¶6-030 Principles regarding types of development, zoning, prohibitions and commencement The key principles derived from the discussion on types of development, zoning, prohibitions and commencement are set out below. Principle 1: Development may be declared to be “designated” development by an EPI or by regulation (s 29 and 77A of the EPA Act). Principle 2: Development may be identified as “advertised” development by: • an EPI, but not in relation to designated development (s 29A) • regulations (cl 5 of the EPA Regulation), or • a DCP. (Section 4(1) of the EPA Act)

Principle 3: An EPI may provide that development may be: • carried out without the need for consent under the EPA Act • carried out only with consent under the EPA Act being obtained, or • absolutely prohibited. (Sections 30 and 31 of the EPA Act) Principle 4: An EPI may provide (in relation to development which is permissible with consent) that consent cannot be granted without the concurrence of a Minister or public authority specified in the EPI. Where concurrence is required, an EPI must state the matters to be taken into account in deciding whether concurrence should be granted (s 30(2) of the EPA Act). Principle 5: An EPI is required to be published on the NSW legislation website. An EPI commences on the date of publication or a later date specified in the EPI (s 34 of the EPA Act).

CHALLENGES TO VALIDITY AND PRIVATIVE CLAUSES ¶7-010 Challenges to the validity of an Environmental Planning Instrument The making of an Environmental Planning Instrument (EPI), as with other forms of delegated legislation and statutory approvals, may be subject to applications for judicial review. These applications may be based upon: • non-compliance with the legislation which authorised the making of the delegated legislation or statutory approval under challenge, or • the usual grounds for administrative law review, namely, lack of power, bias and predetermination, failure to consider relevant considerations, taking into account irrelevant considerations, and absence of natural justice/procedural fairness to the extent the

legislation does not limit such requirements.

¶7-020 Privative clauses On occasions, parliament has sought to prevent judicial review by enacting so-called “privative clauses” in legislation. A privative clause in legislation seeks to oust judicial review of decisions and to make such decisions immune from challenge and review of the courts. The policy underlying such privative clauses is the need for certainty in decision-making regarding particular matters. Allied to the policy basis of certainty, are economic considerations and fears that some economic advantage to government or the community (or a sector thereof) may be lost or not be achieved if the achievement of certainty in a particular matter is not present or achievable. A variant of a total privative clause is a time limit privative clause, which seeks to prevent judicial review unless the action is commenced within a specified time. The approach of a time limit privative clause has been the approach taken in relation to judicial review of the validity of an EPI. This recognises the legitimate role for judicial review of the validity of an EPI, but also notes the policy drivers of certainty and economic considerations by not permitting time open-ended applications for judicial review, but confining a time window for such challenges to be commenced (ie a specified period) after the publication of an EPI. It must be noted that without a time limit privative clause, applications for judicial review of the validity of an EPI could be initiated at any time. As the grant of relief to such an application involves an exercise of the equitable jurisdiction of the courts, a finding of a breach does not automatically mean relief will be granted. Rather, the courts have a discretion whether relief is to be granted at all, and the particular nature of the relief.

¶7-030 Delay (or laches) in commencing proceedings and relevant principles One of the factors considered by the courts in the exercise of discretion regarding the granting of relief is whether the person

seeking judicial review has shown delay (or laches) in commencing proceedings. The relevant general principles in relation to laches are those stated by Lord Selborne LC for the Judicial Committee of the Privy Council in Lindsay Petroleum Co v Hurd (1874) LR5PC 221 at p 239–240 and Errata ix, as follows: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, the delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” Thus, mere delay is not sufficient. What is required is delay which results in prejudice to the parties or others. These principles were cited with approval by the High Court (Isaac and Dixon JJ) in Turner v General Motors (Australia) Pty Ltd [1929] HCA 22; (1929) 42 CLR 352. While a privative clause or a time limit privative clause operates to seek to prevent an application for judicial review being lodged, even without such provisions the courts have a discretion to deny applications excessively delayed in their commencement based on delay or laches in accordance with the principles outlined above.

¶7-040 Privative clauses in the Environmental Planning and Assessment Act 1979

Clause 35 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides as follows: “35 Validity of instruments The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication on the NSW legislation website.” In the original version of the EPA Act, s 35 provided as follows: “35. The validity of an environmental planning instrument in relation only to any failure to comply with any formal or procedural requirements of this Part (including the regulations in force in connection therewith) with respect to its making shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.” It will be noted that this original privative clause only purported to protect an EPI from legal challenge in relation to non-compliance with the formal and procedural requirements of Pt 3 in relation to planmaking and any corresponding provision of the EPA Act and Regulation after three months. Hence, cl 35 as originally enacted, did not seek to prevent judicial review in relation to broader questions. Section 35 was repealed in the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments) and replaced by a new s 35, the terms of which currently apply. At the same time, a corresponding provision relating to preventing challenges to development consents was inserted by the 1985 Amendments, being a new s 104A which provided as follows: “Validity of development consents 104A. The validity of a consent shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date on which the granting of the consent has been publicly notified in accordance with the regulations.”

It is noteworthy that this major expansion of the privative clause from simply one directed at formal and procedural requirements of the EPA Act received scant and uninformative mention by the Minister for Planning and Environment, the Hon RJ Carr MP. In his Second Reading Speech when the 1985 Amendments were introduced, he said: “The amendments also include: … Provisions to impose reasonable time limits on challenges to environmental planning instruments and development consents, which enables greater certainty in the development process (sections 35, 104 [sic.] and 114).”1 With the major changes to the development control provisions of Pt 4 made by the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW), s 104A was repealed and replaced by a new s 101, which is the current law and which provides: “101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.” Footnotes 1

NSW Parliament, 26 November 1985, Legislative Assembly Hansard, p 10638.

¶7-050 R v Hickman; Ex parte Fox and Clinton — a

starting point The starting point for any discussion on privative clauses in Australia is the High Court decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (Hickman). These proceedings related to a challenge in relation to a decision by a Local Reference Board under the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth) on the application of an industrial award. Clause 17 of the Regulations provided that a decision of a Local Reference Board “shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever”. The case raised a constitutional question under s 75(v) of the Australian Constitution and the constitutional basis was sufficient to provide the High Court with jurisdiction despite cl 17, according to Latham CJ, and Rice, Starke and McTiernan JJ. However, Dixon J, while agreeing with the majority on the outcome, advanced a general approach, not based on the Australian Constitution, to the interpretation of privative clauses. Dixon J said at p 615–616 the following: “They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. … [p 616] It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the

intention that any excess of that authority means invalidity and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.” Thus, according to Dixon J, a privative clause operates to achieve two things: (1) A decision will not be invalidated on the basis of non-compliance by the decision-maker with requirements of how the decision should have been made. (2) A decision will not be invalidated on the basis that the decisionmaker has not “confined its acts within the limits laid down by the instrument giving it authority”. This second circumstance extends beyond procedural requirements but is directed towards challenges based on Wednesbury unreasonableness, failure to consider relevant matters, or consideration of irrelevant matters and perhaps technical as opposed to manifest ultra vires. However, for a privative clause to be effective in these circumstances it must meet three criteria: (1) the decision must be a bona fide attempt by the decision-maker to exercise its power (2) the decision must relate to the subject matter of the legislation, and (3) the decision must be reasonably capable of reference to the power of the decision-maker.

¶7-060 Woolworths Ltd and Kenlida Pty Ltd v Bathurst City Council — challenge to the validity of a

development consent The first judicial consideration of the effects of s 35 and s 101 (and its precursor s 104A) was in Woolworths Ltd and Kenlida Pty Ltd v Bathurst City Council (1987) 63 LGRA 55, a decision of Cripps CJ in the Land and Environment Court of NSW (NSWLEC). The issue in this case was a challenge to the validity of a development consent of a shopping centre in Bathurst, based in part on an absence of landowners’ consent to the development application (DA) and four conditions of the consent which were alleged to be beyond the power of the Council to impose. The defendants claimed the validity of the development consent could not be challenged because of s 104A of the EPA Act as it then was. Ultimately, and despite many changes in the claims of the parties, Cripps CJ only upheld one challenge, namely to the validity of a modification to a consent, and that claim was ultimately agreed to by the parties. The remaining issue pressed related to the validity of two conditions of consent. The applicant, Mr P McClellan, submitted that a challenge to the validity of the conditions of a consent was not a challenge to the validity of the consent itself, a claim dismissed by Cripps CJ. Cripps CJ held at p 63–64 as follows: “… I am nonetheless of the opinion that s. 104A of the Act precludes a challenge of the nature mounted in this case. Although Mr McClellan’s submission is that he is not challenging the validity of the development consent directly, that is what, in effect, he is doing. He challenges the validity of the development application for the sole purpose of impugning the development consent issued pursuant to it. … Privative clauses such as s. 104A are not free from difficulties: see Anisminic v Foreign Compensation Commission [1969] 2 AC 147; Smith v East Elbe Rural District Council [1956] AC 736; R v Secretary of State for the Environment; Ex parte Ostler [1977] QB 122. See also Church of Scientology v Woodward (1982) 154 CLR 25 at 55 and R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. In my opinion, s. 104A would not preclude a challenge on the ground that the council acted in bad faith. It may

not preclude a challenge where the consent is manifestly ultra vires or in excess of jurisdiction or the challenge is based on a breach of the rules of natural justice. However, it is clear, as is acknowledged by Mr McClellan, that it precludes a challenge on the ground that the council took into account irrelevant matters or failed to take into account relevant matters or reached a decision not reasonably open to it in the relevant sense. [p 64] In the present case, both the application to the council and the consent granted by the council were regular on their face and, in the case of the application, one the council was clearly entitled to receive and in the case of the consent one which it was clearly open to the council to grant. It is not alleged the council lacked bona fides … There is no manifest ultra vires or excess of jurisdiction and, as I have already said, it is not suggested that the council acted in bad faith. The only purpose of challenging the validity of the development application is to impugn the validity of the development consent. In these circumstances, I have formed the opinion that the decision of the council to accept the development application is not subject to challenge. Mr McClellan submitted that failure of an owner to consent to a development application necessarily renders the application void. In his submission, it follows that if the correspondence referred to above fell short of the consent required (and if the challenge was brought within 3 months), the development consent would be void. He thereupon submits that if the development application was void, any consent granted by the council was a decision in excess of jurisdiction or ultra vires and could not be protected by the privative clause referred to above. I accept that privative clauses must be read strictly and it is the policy of the courts to give them no greater width than is warranted in all the circumstances. However, the meaning of the clause must be determined in the context of the legislative enactment. Its main purpose is to remove any uncertainty that might exist concerning the validity of development consents. Development consents run with the land. The mischief sought to be cured by precluding

challenges (other than those based on bad faith, denial of natural justice and perhaps, manifest excess of jurisdiction) is, I think, obvious. It would seem to me, therefore, that s. 104A precludes a challenge to the validity of the development consent and, in my opinion, precludes a challenge to the development application where such a challenge is based upon circumstances referred to in this judgment.” Cripps CJ’s decision is useful in fleshing out the application of Hickman in the context of the EPA Act. He found that the following challenges were precluded by the privative clause: • where a council took into account irrelevant matters • where a council failed to take into account relevant matters, and • where there is an absence of the proper consent of the landowner, but that absence was not apparent on the face of the DA. However, challenges made on the following grounds are not precluded by the privative clause: • bad faith • denial of natural justice, and • perhaps manifest excess of jurisdiction.

¶7-070 Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning and Wagga Wagga City Council In this case, Pearlman CJ in the NSWLEC in Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning and Wagga Wagga City Council (1996) 90 LGERA 341 (Coles) held at p 345–350 as follows: “I recognise that many of the decisions applying the Hickman principle (for example, Coldham and Richard Walter) relate to clauses controlling the operation of a quasi-judicial body, whereas

in this case I am concerned with the operation of an administrative body exercising discretionary decision-making functions. I think, however, that the Hickman principle is a principle of general application equally apposite in the case of administrative bodies and it has been so applied: see Darling Casino. ‘Mr McClellan QC, counsel for the applicants, referred me to a number of authorities in an endeavour to establish the proposition that a privative clause is ineffective to oust judicial review on the grounds of jurisdictional error or ultra vires decisions generally.’ [p 348] In my opinion, the decisions … do not establish a firm line of authority for the proposition that a challenge on the basis generally of ultra vires will overcome the protection of a privative clause, having regard to the fact that the proposition was stated in each such decision in obiter remarks and having regard to the recent affirmation of the Hickman principle as the proper approach. … As to whether a privative clause such as s. 35 operates to oust a claim which alleges a breach of the rules of natural justice two approaches seem to me to be possible. One approach is to recognise, as Brennan J pointed out in Richard Walter (at 195), that the Hickman principle is a rule of construction. Mason ACJ and Brennan J expressed this point in Coldham (at 418) in the following passage: ‘As Dixon J explained in Murray [R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398–399], and in other cases, it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal’s order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving

effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies.’ [p 349] This approach would, in my opinion, recognise that that part of the applicants’ claim which is founded on a breach of the rules of procedural fairness does not arise out of the statutory provisions which appear to restrict or restrain the exercise of power. Rather, the claim arises from an application of the common law rules of natural justice. There would be no warrant, on such approach, to apply this rule of construction because there would be no prima facie inconsistency in the statutory provisions. On that basis, the tests enunciated in the Hickman principle would not be available to determine if a challenge to the validity of an environmental planning instrument on the grounds of breach of natural justice could be entertained despite the provisions of s. 35 (cf Jackson v Slattery [1984] 1 NSWLR 599 per Glass JA at 609). The question would then be whether there is authority for the proposition that a claim of breach of the rules of natural justice is a separate bar to the effective operation of a privative clause. … [Pearlman CJ noted cases indicating a breach of natural justice is equivalent to jurisdictional error.] However, as I have earlier pointed out, the authorities do not seem to support a broad proposition that a claim of jurisdictional error generally will not be barred by a privative clause. Accordingly, on the basis that the Hickman principle is not available, and breach of natural justice is not a separate bar to the operation of s. 35, that section would operate on its terms, and clearly that section is expressed in language wide enough to exclude a challenge on the grounds of breach of natural justice. The second (and, it seems to me, the better) approach is to apply the Hickman principle on the basis that, at least in the context of the Environmental Planning and Assessment Act, the rules of

natural justice are procedural rules which govern the exercise of powers conferred on the decision-maker under that Act. … In these circumstances, the application of the Hickman principle is appropriate. [p 350] I am conscious that the conclusion I have reached as to whether s. 35 will be effective to oust a claim for denial of natural justice is not on all fours with three decisions of this Court, but, on analysis, I do not think with respect that those decisions are authoritative on the question. … I consider, then, the appropriate approach is to apply the Hickman principle to determine whether the challenges the applicants mount in this case are ousted by the operation of s. 35.” Of the breaches alleged in Coles, Pearlman CJ found as follows: • The claim that a Local Environmental Plan (LEP) exceeded the power under s 28 of the EPA Act to suspend a regulatory instrument (in this case — a shopping centre lease) in order to implement a development consent was precluded by s 35 by applying the Hickman principle on the grounds that there was no question of bona fides and the EPI related to the subject matter of the EPA Act. • The claim that, in making the EPI, there were defects in the advertising process, was precluded by the application of the Hickman principle, provided the three elements of the test were satisfied. • The claim of denial of procedural fairness was precluded by the Hickman principle as there was no issue of bad faith, no suggestion that the EPI did not relate to the subject matter of the EPA Act, nor was the EPI not reasonably capable of reference to the power conferred by the EPA Act. • The claim that the Minister did not have regard to relevant considerations and the claim that the Minister acted unreasonably

were precluded by the Hickman principle, given the absence of bad faith and the compliance with the remaining tests in the Hickman principle. Pearlman CJ noted that the Hickman principle was applicable to administrative decision-makers, as well as quasi-judicial bodies. She considered then whether a privative clause would oust the rules of natural justice and concluded that in the case of the EPA Act, they are procedural rules governing the exercise of powers, and hence, are ousted by a privative clause in accordance with the Hickman principle.

¶7-080 Vanmeld Pty Ltd v Fairfield City Council — challenge to the lawfulness of a Local Environmental Plan In Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78; (1999) 101 LGERA 297 (Vanmeld), the NSW Court of Appeal considered a challenge to the Fairfield LEP. In this case, the Council adopted an LEP which differed from the exhibited draft. The applicant challenged the lawfulness of the LEP based upon whether the extent of the alterations from the draft exceeded Council’s statutory powers. As the challenge was lodged outside the threemonth period in s 35, Spigelman CJ considered the operation of s 35. Spigelman CJ said at paragraphs [111], [121], [129]–[132], [137], [141] and [164]–[167]: “111 An ouster or privative clause is precisely and strictly construed by the courts. This approach to such clauses is well known to parliamentary draftsmen. Accordingly, there is no foundation for the suggestion sometimes made that the application of a strict construction in some way constitutes a failure on the parts of the courts to implement the intention of Parliament. Subject to any applicable constitutional restrictions — and none have been suggested in this case — legislation can always be drafted to ensure that an intended restriction on judicial review of administrative decisions will be effective.

… 121 In my opinion, the construction of s 35 must focus on what is meant by the words ‘environmental planning instrument’, the ‘validity’ of which is protected by s 35. Those words should be construed so as not to encompass a document which purports to be an ‘environmental planning instrument’ but which is not such an instrument at all. A purported instrument can fail to answer the statutory description by reason of the inclusion within it of a particular provision. … Section 35 and Procedural Fairness 129 The matter which requires determination in this case is the identification of the conduct which is such as to deprive an ‘environmental planning instrument’ of its quality as such an instrument, for the purposes of s 35 of the EPA Act. Specifically, does a failure to discharge the common law duty of procedural fairness constitute such conduct. 130 With respect to this issue three distinct approaches are discernible in decisions of the Land and Environment Court: (i) Bignold J in the present case, as in Breitkopf supra, has construed s 35 as a time limitation provision which is effective to prevent challenges on any basis, whether based on procedural fairness or the Hickman principle. (ii) Pearlman J in Coles Supermarkets has construed s 35 as not effective to prevent challenges, but only on a basis falling within the three-fold Hickman principle (349–351). Procedural fairness is not within the principle and a challenge is accordingly prevented by s 35. (iii) Cripps J has suggested that s 35 and s 104A may not prevent a challenge on the basis of breach of a duty to accord procedural fairness. (Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55, 63) and Stein J has held that it does not do so (Calcovics supra 273). In this Court, Stein JA

expressly left the matter open in Londish v Knox Grammar supra. 131 The fact that the legislative scheme permits unrestricted challenge for a period of three months from the date of promulgation of the environmental planning instrument, is, of course, an exceptionally significant aspect for its construction. The force of the principle of statutory construction to which I have referred above, that a statute which restricts access to the Courts is construed strictly, must be attenuated by this fact. 132 Nevertheless the issue, as I have identified it above, is whether or not the particular conduct that is alleged to vitiate the exercise of the statutory power is such as to deprive a purported ‘environmental planning instrument’ of the quality of such an instrument for the purposes of s 35. This question is not to be answered in the same way with respect to every basis on which such conduct can be challenged after the expiration of the three month period. The principle of statutory construction that such a provision must be strictly construed remains operative. … 137 The final qualification with reference to the ‘Hickman principles’ is not, as I understand it, a suggestion that in some manner that ‘principles’ are immune from legislative overruling. Rather, once the intention appears from the legislative scheme that the privative clause does in fact extend to jurisdictional error, then a final principle of statutory construction reflected in the Hickman principle must be applied. This is because the strict construction, appropriate for all such clauses, is applied with particular stringency to these core matters. … 141 However, nothing in these authorities suggests that the Hickman principle is intended to be an exhaustive statement of the categories of legal error in which a privative clause will be subject to particular stringency in the course of strict construction. The stringent standards applicable to the core categories of

jurisdictional error, referred to in Hickman, may also be applicable to other categories of error. … 164 The significance which Australian common law has come to attach to the requirements of procedural fairness is such that the conclusion that a statute has excluded the requirements will only be drawn after a process of strict construction of a similar degree of strictness as that which lies behind the Hickman principle. In my opinion, Bignold J was wrong to hold that a time limited ouster clause, such as s. 35, should be construed to overrule the Hickman principle. Further, Pearlman J was wrong to hold that, subject only to the three matters referred to in Hickman, s. 35 would be effective to prevent other forms of judicial review, specifically on the procedural fairness ground. 165 I reach this conclusion on the basis of the test applied in order to determine when a particular statute has excluded the requirements of procedural fairness: ‘express words of plain intendment’ (Tanos supra 396 and the authorities which applied this test as hereinbefore set out). See also the formulation ‘inescapable conclusion’ (Lisafa supra 22 per McHugh JA). 166 Section 35 has a significant area of operation. It will apply to non jurisdictional error of law. Subject to the apparent widening of the sphere of jurisdictional error, it may extend to some errors of that character. It is not necessary to consider such matters on this occasion. In all cases, the particular statutory scheme will be determinative. 167 The words of s 35 do not reflect a ‘plain intendment’ to impinge on the fundamental principle reflected in the requirements of procedural fairness. In reaching this conclusion I have given particular weight to the following aspects of the legislative scheme.” Thus, Spigelman CJ concluded that the privative clause in s 35 does not apply to a purported EPI which is not an EPI because of jurisdictional error. Hence, s 35 applies only to non-jurisdictional errors

of law. But it does not apply to a breach of requirements for procedural fairness. However, Meagher JA expressed no view on Spigelman CJ’s discussion on s 35, and Powell JA declined to express a concluded view on s 35 as he considered that Pt 3 of the EPA Act is not subject to a duty to provide procedural fairness.

¶7-090 Plaintiff S157/2002 v Commonwealth of Australia — validity of provisions in the Migration Act 1958 questioned The proceedings of Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157) considered privative clauses again. These proceedings contended that certain provisions of the Migration Act 1958 (Cth) (Migration Act) were invalid. In a joint judgment, the majority of Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at paragraphs [60], [64], [71]–[72] and [76]–[77] (footnotes not included): “60. It follows from Hickman, and it is made clear by subsequent cases, that the so-called ‘Hickman principle’ is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision. … 64. A proper reading of what Dixon J said in Murray is not that a privative clause is construed as meaning that decisions are protected so long as they conform to ‘the three Hickman provisos.’ Rather, the position is that the ‘protection’ which the privative clause ‘purports to afford’ will be inapplicable unless those provisos are satisfied. And to ascertain what protection a

privative clause purports to afford, it is necessary to have regard to the terms of the particular clause in question. Thus, contrary to the submissions for the Commonwealth, it is inaccurate to describe the outcome in a situation where the provisos are satisfied as an ‘expansion’ or ‘extension’ of the powers of the decision-makers in question. … 71. There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that ‘if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open.’ 72. The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed. … 76. Once it is accepted, as it must be, that s. 474 is to be construed conformably with Ch III of the Constitution, specifically, s. 75, the expression ‘decision[s]… made under this Act’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’. Thus, if there has been jurisdiction error because, for example, of a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’, the decision in question cannot properly be described in the terms used in s. 474(2) as ‘a decision … made under this Act’ and is, thus, not a ‘privative clause decision’ as defined in ss. 474(2) and (3) of the Act.

77. To say that a decision that involves jurisdictional error is not ‘a decision … made under [the] Act’ is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.” Plaintiff S157 emphasises that, in applying the Hickman principle, the following steps are required: (1) Consideration is required of precisely what type of protection is purported to be given by the privative clause in question. The privative clause should be strictly construed, on the presumption that parliament does not intend to cut down the jurisdiction of the courts unless the legislation so provides expressly or by necessary implication. (2) If that protection purportedly given conflicts with another statutory provision, then the protection applies. (3) The protection of the privative clause will not apply unless the three provisos in the Hickman principle are satisfied. It is noted that the majority in Plaintiff S157 found that the privative clause in the Migration Act applies only to “decisions”, and a decision which involves jurisdictional error is no decision at all. Administrative decisions involving: • failure to discharge “imperative duties”, and • failure to observe “inviolable limitations or restraints” are thus not “decisions” and in the case in question were not protected from review by the privative clause. Following the Plaintiff S157 decision, many of the earlier decisions regarding privative clauses in the EPA Act need to be treated with caution, as many followed the approach to interpreting a privative clause specifically rejected by the High Court in Plaintiff S157, in that

they considered a decision is protected from judicial review provided it conformed with the three Hickman provisos. Plaintiff S157 held that you must look initially at what is protected by the privative clause. If the privative clause applies to protect a decision from review, the protection provided by the privative clause is excluded or does not apply unless the three provisos in the Hickman principle are satisfied.

¶7-100 Woolworths Ltd v Pallas Newco Pty Ltd — challenge to the validity of a development consent In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 (Woolworths Ltd v Pallas Newco), the NSW Court of Appeal considered s 101 of the EPA Act following the High Court decision in Plaintiff S157. It should be noted that Woolworths Ltd v Pallas Newco dealt with a challenge to the validity of a development consent on the basis that the development was prohibited by the relevant EPI. The privative clause in s 101 had no relevance, as the proceedings were commenced within the three-month period provided for in s 101 (see Spigelman CJ at [87]). Hence, Spigelman CJ’s observations on s 101 are obiter dicta and were made in the course of explaining the scheme of the EPA Act to determine whether a council’s decision on the characterisation of a development is a jurisdictional fact. However, in relation to s 101, Spigelman CJ noted at paragraphs [69]–[71], [73]– [75], [77] and [82]–[84]: “[69] Privative clauses are strictly construed. Accordingly, a clause which seeks to protect a ‘decision’ or a ‘determination’ is read down so that it does not have the effect of protecting a decision or determination affected by jurisdictional error. … This line of authority has recently been reaffirmed in the authoritative joint judgment of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. [70] Plaintiff S157 affirmed that a privative clause which protected ‘decisions made under this Act’ did not protect decisions which involved a failure to exercise jurisdiction or an excess of jurisdiction (see at 505 [72], [75], 506 [76] and 509 [89]). It is by

no means clear that this formulation coincides with the matters identified as ‘jurisdictional errors’ in administrative law. … [71] The Parliament can make it clear that it intends a privative clause to protect decisions from invalidity for jurisdictional error, for example by adopting terminology which extends the protection to ‘purported decisions’. … … [73] The analogy between s. 101 and the section under consideration in Plaintiff S157, and the numerous cases which preceded it, is inexact. [74] First, there is a precondition to the operation of s. 101 that public notice of the granting of a consent is to be given. This precondition does reinforce the operation of the privative clause. [75] Secondly, there is no absolute bar. On the contrary, s. 101 permits any form of challenge within a specified time period. Although the time period may be regarded as short, that does not detract from the fact that, unlike Plaintiff S157 and the earlier decisions, there is no complete bar to legal challenge on the grounds of jurisdictional error. There is not the same compulsion to strictly construe the section by reason of the application of the principle of statutory construction that Parliament does not intend to deny access to the courts save by clear and unmistakable words. … [77] The third factor which differentiates s. 101 from the section considered in Plaintiff S157 is that s. 101 refers to questioning ‘the validity of the consent’. It does not say that ‘the consent … cannot be questioned’. In Plaintiff S157, and the long line of cases which it affirmed, the reference to ‘decision’, or the other words equivalent to the word ‘consent’ in the present case, was not qualified by a word such as ‘validity’. … [82] A view has been expressed that s. 35 and s.101 or its

predecessors should be construed to be a time bar clause and, accordingly, that no challenge of any character could occur after the expiration of the period. This was said to extend to exclude even the core basis for challenge identified in Australian jurisprudence as the Hickman principle. [83] I maintain the opinion I expressed in Vanmeld (at 108 [143]– [150]) that the Hickman principle does apply, even after the expiration of the three month period. … [84] There has been no suggestion in the present case that the privative clause could be overcome by operation of the threefold Hickman principle or by reason of an ‘imperative duty’ or ‘inviolable restraint’. Although there remains some scope for uncertainty, and therefore for inconvenience, because of the possibility that the privative clause may not apply, any uncertainty would be in a very narrow compass because of the restricted basis on which the Hickman principle applies.” Of significance in Woolworths Ltd v Pallas Newco is that Spigelman CJ changed his view from that previously expressed as obiter dicta in Vanmeld. He now concluded that s 101 and also s 35 by inference exclude, after the expiry of three months, challenges on the basis of jurisdictional error. However, Spigelman CJ noted that decisions involving a breach of an imperative duty or inviolable restraint would be excluded from protection. Mason J, Sheller JA and Cripps AJA agreed with Spigelman CJ in relation to the operation of s 101, while Handley JA disagreed.

¶7-110 Lesnewski v Mosman Municipal Council — challenge to the validity of a development consent In Lesnewski v Mosman Municipal Council [2005] NSWCA 99 (Lesnewski), the NSW Court of Appeal considered a challenge to the grant of a development consent granted by Council on 28 August 2000 and publicly notified under s 101 on 7 September 2000. On 4 December 2000, a construction certificate was issued for the building

works subject to the consent. Proceedings were commenced on 6 May 2002, challenging the validity of the consent outside the threemonth period referred to in s 101. The basis for the challenge was threefold: (1) failure of Council to afford natural justice/procedural fairness (2) the officer who issued the consent under delegated authority did not have the authority to do so, and (3) the construction certificate was inconsistent with the consent in breach of the EPA Act and Regulations. In the appeal, the challenge (based on the power of the Council officer to issue the consent) was abandoned in the light of the decision in Woolworths v Pallas Newco that s 101 protected decisions from challenges based on jurisdictional error. Tobias JA considered whether s 101 of the EPA Act excluded a challenge based on a denial of procedural fairness (assuming such a denial had occurred). His Honour referred to the decisions of Vanmeld, Woolworths v Pallas Newco and Plaintiff S157 and held at paragraphs [76]–[79] as follows: “76. The effect of the Chief Justice’s discussion in Woolworths with respect to s 101 is that the section does extend to protect decisions from jurisdictional error at least where that expression is used in the wider sense. However, the provision does not, even after the expiration of the three month period, extend to protect decisions that do not conform to the threefold Hickman principle, namely, where it is manifest that the decision is not a bona fide attempt to exercise the power; where it does not relate to the subject matter of the legislation; or where it is not reasonably capable of reference to the power given to the decision-maker. Furthermore, it does not protect against breach of, or noncompliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as ‘essential’, ‘indispensable’, ‘imperative’ or

‘inviolable’. 77. Although the Chief Justice was not concerned in Woolworths with a provision such as s 79A(2) or the common law duty to afford procedural fairness, nonetheless I see no inconsistency between his discussion concerning s 101 in that case and his conclusion in Vanmeld that s 35 of the EPA Act did not protect against a challenge based on denial of procedural fairness. His Honour has made it plain that s 101 is subject to the operation of the threefold Hickman principle and/or a restriction on, or a requirement of, the exercise of an administrative power which amounts to an ‘imperative duty’ or ‘inviolable restraint’. When that conclusion is coupled with his statement in Vanmeld (at 111 [162]) that procedural fairness can be described as an ‘inviolable limitation or restraint’, it must follow that s 101 does not protect against the breach of such a fundamental requirement. 78. That would be particularly so where there has been a complete denial of procedural fairness such as the failure to notify neighbours at all as required by the Notifications DCP so that persons in the position of the appellant would not become aware within the three month period that a consent had been granted, let alone aware of the nature of the proposed development and its impact. 79. Accordingly, in my opinion and subject to proof of the necessary facts, the appellant’s challenge to the validity of the consent on the basis that she was denied procedural fairness, if established, is not protected by s 101 of the EPA Act and the primary judge erred in finding to the contrary. It follows that the Land and Environment Court had jurisdiction to hear and determine that issue and the proceedings should therefore be remitted to that Court to enable the issue to be litigated.” Thus, in Lesnewski it was held the exclusions from the operation of a privative clause extend to: • the three Hickman provisos • breach or non-compliance with a restriction or requirement in the

legislative scheme that constitutes a limitation or requirement described as “essential”, “indispensable”, “imperative” or “inviolable”, and • a breach of procedural fairness/natural justice in the context of the EPA Act being a fundamental breach of an inviolable limitation or restraint, and is not protected by s 101. The issue of interest is whether the breach of an essential and inviolable requirement constitutes an expansion of the exclusionary Hickman principle to which any protection by privative clauses are subject, or whether such breaches simply affect whether the “decision” is in fact a “decision” at all, and hence, require you to ascertain whether the privative clause relates only to decisions or extends to purported decisions. The latter approach is suggested by Plaintiff S157, but Lesnewski and subsequent decisions in Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455 (Anambah) and Kirk v Industrial Relations Commission [2010] HCA 1 (Kirk), suggest the former is likely to be the case.

¶7-120 Maitland City Council v Anambah Homes Pty Ltd — “manifest error” In Anambah, the NSW Court of Appeal considered whether s 101 operated to exclude a challenge to the validity of a condition of development consent relating to development contributions. The condition in question required dedication of land as a public reserve and, as it was not a condition provided for in the relevant contributions plan, it was imposed in breach of s 94(11) of the EPA Act. Tobias JA considered whether “manifest jurisdictional error” excluded the operation of a privative clause. He said at paragraphs [111] and [119] as follows: “111. As I have observed, generally speaking the relevant principles were not in issue. It is therefore sufficient for present purposes to record the following passage (omitting citations) from the judgment of Spigelman CJ in Mitchforce (at 229 [68]) and

repeated by him in Pallas Newco (at 723 [81]) as summarising those principles: ‘… Plaintiff S157 affirms a number of propositions established by prior High Court authority as applicable where an issue arises concerning the interaction between a jurisdictional limit and a privative provision in an Act: • The co-existence of two such provisions gives rise to an issue of inconsistency requiring reconciliation between the provisions. • The issue is one of statutory construction and all the relevant rules of construction apply, notably the rule that particular provisions must be construed in the context of the whole of the Act and that one provision, including the privative provision, cannot be construed as controlling the meaning of the remainder of the Act. • A privative provision on its proper construction will not protect a ‘manifest’ defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker. • A provision containing a restriction or requirement may, on the proper construction of the Act as a whole including the privative provision, be construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is, as variously expressed in the authorities, ‘essential’, ‘indispensable’, ‘imperative’ or ‘inviolable’.’ … 119. In my opinion, it is apparent from the passages from Plaintiff S157 relied upon by Spigelman CJ in support of the proposition stated in the third dot point of [81] of Pallas Newco which I have

set out in [111] above, that the reference to a ‘manifest’ defect is, relevantly, to a decision which, on its face, exceeds the jurisdiction or power of the decision-maker. Accordingly, in the present case the question is whether the fact that Condition 36 exceeded or was beyond the power of the Council to impose conditions under s 94 was plain on the face of the Consent. To put the question in the terms of that expressed by Gleeson CJ in Plaintiff S157 referred to in [116], did the Consent bear on its face every appearance of an attempt by the Council to pursue the power under s 94 to impose Condition 36?” Tobias JA then held that the consent on its face did not appear to be an exercise of the power conferred on the Council by s 94. He said at paragraphs [121]–[123] and [128]–[132]: “121. … However, in my opinion the correct approach which accords with authority is that which I have set out in [119] above. The question there posed requires consideration of the whole of the Consent in order to ascertain whether, on its face, the imposition by the Council of Condition 36 bears the appearance of an attempt to exercise the relevant power — in this case, s 94. If it cannot, then on the face of the Consent the imposition of Condition 36 exceeded the Council’s jurisdiction or power. 122. It might be suggested that the test articulated by Gleeson CJ in Plaintiff S157 is inconsistent with that expressed in the joint judgment in that case. That of the Chief Justice was that the third limb of the Hickman principle will not be satisfied if the decision the invalidity of which is sought to be protected by the privative clause does not bear on its face every appearance of an attempt to pursue the relevant power. That of their Honours in the joint judgment was that the third limb will not be satisfied if the decision, on its face, exceeds jurisdiction, that is, exceeds the limits of the relevant power. When considering the two approaches, it is necessary to be careful to compare like with like. I mention this because in the passage from the judgment of the Chief Justice which I have recorded in [116] above, he expresses the test in terms of when the third limb will be satisfied. On the other hand, in the passage from the joint judgment recorded in

[118] above, their Honours express the test in terms of when the third limb will not be satisfied. I have therefore attempted to reframe that of the Chief Justice accordingly so one is comparing like with like. 123. In my opinion when so compared there is no difference in substance between the two tests. If the decision does not bear on its face every appearance of an attempt to pursue the relevant power, then it will also, on its face, bear the appearance of exceeding the jurisdiction or power to make it. Translated to the present case, if Condition 36 does not bear on the face of the Consent every appearance of an attempt to pursue the power to impose such a condition under s 94, so also will it appear on the face of the Consent to have been imposed otherwise than under s 94, that is, to have been imposed in excess of the power of the Council under s 94. … 128. I would concede that on the face of the Consent, there is nothing to link Condition 36 to a purported exercise by the Council of its power under s 94. But it is that very fact, which I seek to make good below, that establishes that the relevant excess of jurisdiction, namely, the fact that Condition 36 was imposed otherwise than in accordance with s 94 does indeed appear on the face of the Consent with the result that the third limb of the Hickman principle is not satisfied. 129. On its face, Condition 36 could not be said in its context to be reasonably capable of referring to s 94 at all. In this respect it stands in contrast with Condition 16 which on its face required the payment of a monetary contribution in accordance with the Contributions Plan for the purpose of s 94. The stated ‘reason’ which immediately preceded that condition made that plain where it referred to the proposed development resulting in an increased demand for community facilities/services (thus reflecting the requirements of s 94(1)) and to the Council’s adopted contributions plan prepared ‘via the provisions of section 94’. 130. On the other hand, Condition 36 was the last condition

imposed by the Council under the heading ‘TRAFFIC/ROADS/FOOTPATH’. It makes no express reference to Lot 1825 being dedicated ‘free of cost’ although it uses the word ‘dedicated’ which both parties accepted should be construed to refer to it being so dedicated. More significantly, it has nothing to do with the subject matter of the heading under which it was located. Further, unlike Condition 16, it has no relationship with the stated reason for the imposition of Conditions 20 to 35. It just hangs in the air, as it were, unrelated to anything. It reads purely as an afterthought. Its imposition by the Council, being unrelated on the face of the Consent to s 94, leads to the conclusion that it could not be said that its imposition was reasonably capable of reference to the relevant power. In other words, on the face of the Consent, the imposition of Condition 36 exceeded the power of the Council to impose it or, to adopt the words of the Chief Justice in Plaintiff S157, the Consent did not bear on its face the appearance of an attempt by the Council to impose the condition under s 94. 131. In my opinion, therefore, the primary judge was correct to hold that Condition 36 was imposed in excess of jurisdiction which was, in the relevant sense, ‘manifest’ in that it appeared on the face of the Consent to have been imposed otherwise than pursuant to s 94 of the EPA Act, the only relevant source of power. 132. I would accordingly reject the Council’s submission that s 80A(1)(a) of the EPA Act was a relevant source of power: it is now well established that the only source of power authorising the imposition of a condition requiring the dedication of land free of cost or a monetary contribution is to be found in s 94 of the EPA Act: Fitch v Shoalhaven City Council (1989) 67 LGRA 165 at 170; Fairfield City Council v N & S Oliveri Pty Ltd [2003] NSWCA 41 at [22] per Spigelman CJ; at [73] per Cripps AJA; see also s 80A(1) (h) which expressly authorises the imposition of a condition under s 94.” Tobias JA then considered whether the condition breached a fundamental requirement, which was essential, imperative or

inviolable, and as a result the condition was not protected from challenge by the privative clause in s 101. Tobias JA said at paragraphs [136] and [160]–[161]: “136. Furthermore, notwithstanding the submissions of the Council, in my opinion the imposition of a condition in breach of the mandatory provisions of s 94(11) was of such significance in the legislative scheme as to constitute a limitation on power which was ‘essential’, ‘imperative’ or ‘inviolable’. Again, it is instructive to refer to the passages in Plaintiff S157 relied upon by Spigelman CJ in support of the proposition set forth in the last dot point of the passage from his Honour’s judgment in Mitchforce, repeated in Pallas Newco, and set forth in [111] above. … 160. Accordingly, for the foregoing reasons in my opinion the legislature, by enacting s 94 in general and s 94(11) in particular, expressed a specific intention that the observance of the limitation contained in, and compliance with the requirement of, s 94(11) were essential to the valid imposition of a condition which required the payment of a monetary contribution or the dedication of land free of cost to the public. In Project Blue Sky terms, it is clear that it was a purpose of s 94 that the imposition of a condition in breach of that provision should be invalid. To adopt and adapt the words of Callinan J in Plaintiff S157, s 94(11) constituted a limitation upon the power of the Council to impose a condition pursuant to s 94 which was inviolable so that noncompliance therewith was legally intolerable. 161. Accordingly, in my opinion non-compliance with what was a fundamental requirement of s 94 constituted a breach of a limitation on the exercise by the Council of its power under s 94(1) to impose a condition requiring the dedication of land free of cost which was essential, indispensable, imperative and inviolable. For this additional reason the primary judge was correct in holding that s 101 did not constitute a bar to the challenge by the respondent to the validity of Condition 36.” Tobias JA identified some indicators to assist in discerning whether a

provision which is breached is fundamental, essential, imperative and inviolable. These indicators were as follows: • Is the provision expressed in clearly mandatory terms? • Did the Minister’s Second Reading Speech attach a high level of importance to the provision in question? • Were the provisions dealt with in the legislation in a special way, in a way which was out of the ordinary? • Is the provision a substantive requirement, rather than a procedural requirement compliance with which was not regarded by the legislature as essential to validity? • Is the provision related to the achievement of the objects of the legislation? • Is the provision one which may or may not be a benefit to the public at large? In examining the third Hickman proviso (ie that it is reasonably capable of reference to the power given to the body), Ipp JA said at paragraphs [34] and [43]–[46] as follows: “34. The parties were in dispute as to whether the third limb of the Hickman principle was satisfied. If it were not satisfied, s 101 would not have the effect of validating Condition 36. … … 43. In my opinion, the third limb of the Hickman principle will be satisfied, and a privative clause will be effective, if the excess of jurisdiction does not appear on the face of the relevant instrument or decision. 44. Thus, in the present case, the third limb will be satisfied (and Condition 36 will be validated) if, to establish that the Consent was beyond power, resort must be had to material outside the Consent itself.

45. Tobias JA holds that for the Hickman principle to be satisfied it is necessary that it must appear on the face of the Consent as a whole that Condition 36 had the appearance of an attempt by the Council to exercise its powers under s 94. For the reasons I have expressed, I respectfully disagree. 46. In my opinion, there is nothing in the Consent as a whole (the provisions of which are discussed by Tobias JA) that indicates that Condition 36 was not such an attempt. That, in my view, is the relevant test. In my view, the Consent does satisfy the third limb of the Hickman principle.” Other than in the matters referred to in his judgment, Ipp JA agreed with Tobias JA and Spigelman CJ. Spigelman CJ criticised the use of the words “the test of manifest jurisdictional error” when he said at paragraph [5] as follows: “5. My use of the word ‘manifest’ was a quotation. It was not intended to modify in any way the three Hickman provisos. In particular it was not intended to propound an alternative test to the effect that it is sufficient to ask whether or not a jurisdictional error is ‘manifest’ and if the answer to that question is ‘yes’ then, as a matter of construction, the privative clause will not apply. Useful as a single word may be to state in short form the effect of the three Hickman provisos, to pose the question in terms of whether or not a jurisdictional error is ‘manifest’ is liable to lead to error.” Spigelman CJ agreed with Ipp JA that Council’s decision was not beyond power on the face of the consent itself. He said at paragraphs [16]–[17]: “16. The Appellant Council acknowledges that it did commit an error of law by purporting to act without recognising the limitation upon its power implicit in s 80A(1)(h) and s 94. The issue is whether or not its error in this regard is of such a character as to lead to the conclusion that the purported exercise of power goes beyond power ‘on its face’, so that it could not be said that the exercise was reasonably capable of reference to the power.

17. Since preparing the first draft of this judgment, I have had the advantage of reading the judgment of Ipp JA. His Honour concludes that nothing appears on the face of the consent that indicates that Condition 36 was not imposed pursuant to s 94. In order to establish invalidity it is necessary to have regard to the contributions plan. It cannot, accordingly, be said that Condition 36 was beyond power on the face of the Consent itself. I agree with Ipp JA’s analysis.” Hence, Spigelman CJ held that the third proviso of the Hickman principle was not satisfied, and hence, the protection afforded by s 101 was not excluded on that ground. However, he held that the condition breached an essential, imperative and inviolable requirement, a breach of which is not protected by s 101. “18. The Respondent’s alternative submission is that, with respect to conditions requiring dedication of land, the exclusiveness of the power in s 94 is such as to constitute a requirement of the character that has been variously expressed in the authorities as ‘essential’, ‘imperative’ or ‘inviolable’. The process of statutory interpretation must reconcile the Parliamentary intention that s 94 is the only power that can be used to require dedication of land, with the Parliamentary intention expressed in s 101 that Council decisions should not be challenged after the expiration of three months. … As Gleeson CJ said in Plaintiff S157: ‘[21] … To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context.’ Tobias JA has set out the relevant statutory context, including the text of the EPA Act and its legislative history. For the reasons his

Honour gives, compliance with s 94 was essential to the validity of a condition requiring dedication of land. Accordingly, I agree that s 101 does not protect Condition 36.” Spigelman CJ noted that an inviolable constraint depends upon its particular statutory context. However, he noted the following have been found to be inviolable constraints: • a power to determine who was eligible for membership of an organisation for the purposes of industrial representation • the legal criteria governing discussions to grant a visa, where those criteria had been expounded in great detail by parliament • a requirement for a review tribunal to give appellants written notice of information contained by the tribunal • procedural fairness • the criminal standard of proof, and • apprehended bias. The resulting outcome in Anambah appears as follows: • The use of the term “manifest error” is derived from the means of establishing whether the third proviso in the Hickman principle is satisfied. The excess of jurisdiction must appear on the face of the relevant instrument (Tobias JA at [119] and Ipp JA at [42]). “Manifest error” is not an alternative test or a modification of the Hickman principle (Spigelman CJ at [5]). • The third proviso in the Hickman principle, namely that the decision exceeds the power of the decision-maker, is satisfied (and hence the privative clause gives protection from challenge) by a negative test that the excess of jurisdiction does not appear on the face of the decision, rather than a positive test that the decision must show on its face that it has been made in accordance with an appropriate head of power (Ipp JA at [43] and Spigelman CJ at [17], contra Tobias JA at [127]).

• A decision to impose a condition requiring a development contribution when such a condition was imposed contrary to the EPA Act is a breach of a fundamental requirement which is essential, imperative or inviolable (Tobias JA at [136]–[161], Spigelman CJ at [18]–[21] and Ipp JA agreeing). • Factors to be considered in determining whether a requirement is essential, imperative or inviolable were identified (Tobias JA at [144]–[159]) as well as the types of decisions which relate to inviolable requirements (Spigelman CJ at [19]–[20]).

¶7-130 Kirk v Industrial Relations Commission In Kirk, the High Court of Australia considered an appeal from the NSW Court of Appeal in relation to convictions in the Industrial Court of NSW under the Occupational Health and Safety Act 1983 (NSW). The appellant had sought orders to quash the convictions based upon jurisdictional error by the Industrial Court. Section 179(1) of the Industrial Relations Act 1996 (NSW) (IR Act 1996) provided that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal”. In a joint judgment by French CJ, and Gummow, Hayne, Crennan, Kiefel and Bell JJ, the court held at paragraphs [93]–[95] and [99]– [100] (footnotes not included): “93. Finality or privative provisions have been a prominent feature in the Australian legal landscape for many years. The existence and operation of provisions of that kind are important in considering whether the decisions of particular inferior courts or tribunals are intended to be final. They thus bear directly upon the second of the premises that underpin the decision in Craig (that finality of decision is a virtue). The operation of a privative provision is, however, affected by constitutional considerations. More particularly, although a privative provision demonstrates a legislative purpose favouring finality, questions arise about the extent to which the provision can be given an operation that

immunises the decisions of an inferior court or tribunal from judicial review, yet remain consistent with the constitutional framework for the Australian judicial system. 94. Understanding the law relating to privative provisions must begin from the proposition, stated by Dixon J in R v Hickman; Ex parte Fox and Clinton, that: ‘if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.’ But the question presented by a privative provision is not just a conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument. 95. In considering Commonwealth legislation, account must be taken of the two fundamental constitutional considerations pointed out in Plaintiff S157/2002 v The Commonwealth: ‘First, the jurisdiction of this Court to grant relief under s. 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s. 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.’ … 99. There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to

principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe2 described as the development of ‘distorted positions’. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics. 100. This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.” Given that the NSWLEC has been invested with the supervisory jurisdiction of the Supreme Court in judicial review by s 20(2)(b) of the Land and Environment Court Act 1979 (NSW) and that appeals on questions of law lie with the Court of Appeal, the principles outlined by the High Court in Kirk appear likely to apply to that Court and the legislation over which it has jurisdiction including the EPA Act. In Kirk, the High Court appears to have removed the distinction between privative clauses in Commonwealth legislation where the Constitution imposed special limitations on the power of the Commonwealth Parliament to enact privative clauses and privative clauses in State legislation where hitherto no such constitutional constraint applied. In removing the distinction, the High Court in Kirk sought to apply the Commonwealth constitutional approach to privative clauses universally, including to privative clause in State laws.

The High Court in Kirk interpreted the words “the Supreme Court of any State” in s 73(iii) as a constitutional expression. As a result, the High Court identified a constitutional corollary that “it is beyond the legislative power of a State to so alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”. By seeking to exclude judicial review on the grounds of jurisdictional error, State privative clauses infringed upon the character of their Supreme Courts and hence, were beyond State legislative power. Footnotes 2

CCH comment: Jaffe authored a journal article in (1957) 70 Harvard Law Review 953 at 963.

¶7-140 Significance, implications and issues The High Court decision in Kirk has been the subject of a symposium address by the NSW Chief Justice, the Hon JJ Spigelman AC in March 2010.3 Spigelman CJ’s extra judicial address identifies the significance of the High Court decision in Kirk, and explores the implications and issues flowing from Kirk including those relating to the EPA Act. Interestingly, Spigelman CJ raised the question of whether time bar clauses, such as s 35 and s 101 of the EPA Act, do not infringe upon the character of a Supreme Court. Presumably, he was distinguishing between a provision such as s 179(1) of the IR Act 1996 which directly impinged upon the jurisdiction of courts, whereas s 35 and s 101 of the EPA Act only do so partially. He raised this issue despite his own finding in Woolworths v Pallas Newco (at [723]–[724]) and in Vanmeld (at [108]) that s 35 and s 101 should not be constructed as time bar clauses. Nonetheless, the precise implications of the High Court decision in Kirk will require further elucidation by the courts in the future. It is somewhat

unfortunate that in radically changing the law regarding privative clauses in Kirk, the High Court neglected to explain to what extent its new formulation replaced, retained or varied the principles previously enunciated by the High Court in both Plaintiff S157 and Hickman, let alone the principles in NSW Court of Appeal decisions such as Woolworths v Pallas Newco and Anambah. Footnotes 3

Spigelman, JJ, 25 March 2010 The Centrality of Jurisdictional Error, Keynote Address to the AGS Administrative Law Symposium: Commonwealth and New South Wales, Sydney.

¶7-150 Key propositions from Kirk The key propositions derived from Kirk are as follows: • A privative clause which seeks to deprive a court of Supreme Court status of the power to grant relief based on jurisdiction error is beyond State legislative power. • A privative clause which seeks to deprive a court of Supreme Court status of the power to grant relief for non-jurisdictional error of law appearing on the face of the record is not beyond legislative power. Essentially, Kirk establishes that it is no longer necessary in considering the effect of privative clauses to proceed through the steps outlined in Plaintiff S157 in cases involving jurisdictional error, as decisions which are found to be based on jurisdictional error cannot be protected by State privative clauses. This approach was followed by the NSW Court of Appeal in Director-General New South Wales Department of Health v Industrial Relations Commission of N.S.W. [2010] NSWCA 47 and by Preston CJ in Brown v Randwick City Council [2011] NSWLEC 172 at paragraph [39]. The operation of

privative clauses is henceforth confined to potentially protect decisions involving non-jurisdictional error of law. It is now a moot point whether the Hickman principle has any work to do in these limited circumstances as the last two of the three provisos relate to jurisdictional error, in relation to which following Kirk, appear to have no applicability as privative clauses cannot infringe on the capacity of a State Supreme Court to exercise judicial review for jurisdictional error.

¶7-160 Principles regarding challenges to the validity of an Environmental Planning Instrument The key principles derived from the discussion on challenges to the validity of an EPI are as follows: Principle 1: The validity of an EPI may be subject to applications for judicial review under s 123 and general administrative law grounds. However, the right for judicial review is limited by a privative clause in s 35 of the EPA Act. This privative clause provides that the validity on an EPI cannot be questioned in any legal proceedings, other than those commenced in the court by any person within three months of the date of the EPI’s prohibition on the NSW legislation website (s 35 of the EPA Act). Principle 2: Decisions which are found to be based on jurisdictional error are unlikely to be protected by the operation of State privative clauses such as s 35 of the EPA Act. The operation of privative clauses is confined to potentially protect decisions involving nonjurisdictional error of law (Kirk). The full implications of Kirk for s 35 of the EPA Act require further consideration by the courts. To that extent, Principles 2–8 are tentative only. Principle 3: A basic rule of construction of privative clauses is that it is presumed that the parliament does not intend to cut down the jurisdiction of the courts, except to the extent that the legislation provides expressly or by necessary implication. Hence, privative clauses are strictly construed (Plaintiff S157). Principle 4: In construing a privative clause, the following steps are

required: • Consideration is required of precisely what type of protection is purported to be given by the privative clause in question. • If the protection purportedly given by the privative clause conflicts with another statutory provision, then the protection in the privative clause would apply. • However, the protection of the privative clause will not apply unless the three provisos in the Hickman principle are satisfied. (Plaintiff S157) Principle 5: The protection of a privative clause will not apply unless the following three provisos in the Hickman principle are satisfied: • The decision must be a bona fide attempt by the decision-maker to exercise its powers. • The decision must relate to the subject matter of legislation. • The decision must be reasonably capable of reference to the power of the decision-maker. The question remains as to whether the Hickman principle, particularly the last two provisos, has any work to do in the light of Kirk, as these two provisos relate to jurisdictional error. Principle 6: Earlier decisions in relation to categories of decisions which were challenged were either precluded or not precluded by s 35 of the EPA Act and are probably no longer applicable given the High Court’s later decision in Kirk and Plaintiff S157. Principle 7: The protection afforded by s 35 of the EPA Act does not extend to a breach of a fundamental requirement which is essential, imperative and inviolable (Lesnewski, Anambah). A breach of procedural fairness or natural justice in relation to planning decisions is a breach of an essential imperative and inviolable requirement (Lesnewski).

Principle 8: Identifying whether a requirement is essential, imperative and inviolable depends upon its particular statutory context. However, some potential indicators as to whether a requirement is essential, imperative and inviolable are as follows: • Is the provision expressed in clearly mandatory terms? • Did the Minister’s Second Reading Speech attach a high level of importance to the provision in question? • Were the provisions dealt with in the legislation in a special way, ie in a way which was out of the ordinary? • Is the provision a substantive requirement, rather than a procedural requirement, compliance with which was not regarded by the legislature as essential to validity? • Is the provision related to the achievement of the objects of the legislation? • Is the provision one which may or may not be a benefit to the public at large?

INCONSISTENCY BETWEEN ENVIRONMENTAL PLANNING INSTRUMENTS ¶8-010 Addressing the issue of inconsistency When the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) was first enacted, it provided for the making of three types of Environmental Planning Instruments (EPIs): (1) State Environmental Planning Policies (SEPPs) (2) Regional Environmental Plans (REPs), and (3) Local Environmental Plans (LEPs).

The original 1979 Act addressed the issue of inconsistencies between these different levels of plans in s 36. The original Act provided for no hierarchy of plans, but a straightforward provision that, in the event of an inconsistency, the later instrument prevailed over an earlier one, unless a contrary intention was present. In the Environmental Planning and Assessment Amendment Act 1996 No 44 (NSW) (1996 Amendments), s 36 as originally enacted was repealed and a new s 36 was added. The changes to s 36 made in 1996 inserted a general capacity for higher order EPIs to prevail over lower order EPIs where an inconsistency occurred, provided the higher order EPI expressly so provided. It provided for no general presumption of a hierarchy, but enabled one to be established by a higher order instrument. In the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments), s 36 was again significantly changed to delete s 36(1)–(3) and insert new provisions in their place, while retaining s 36(4). The 2005 Amendments inserted a strict hierarchy of EPIs in the event of any inconsistency between them. With the removal of provisions for the making of REPs in the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) (2008 Amendments), s 36 was amended by the 2008 Amendments to remove reference to REPs, leaving s 36 in its current form as follows: “36. Inconsistency between instruments (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and (b) (Repealed)

(c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind. (2), (3) (Repealed) (4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.”

¶8-020 Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council — inconsistency argued In Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1993) 80 LGERA 342 (Coffs Harbour), Pearlman CJ in the Land and Environment Court of NSW (NSWLEC) considered an application for a declaration that the Coffs Harbour LEP (No 21) was void. The basis of this application was that the LEP was made in breach of a number of provisions of the North Coast REP 1988. The issue in this case was whether non-compliance by an LEP with an REP leads to invalidity of the LEP. The REP included provisions relating to what should be included in an LEP. Pearlman CJ found that the LEP breached the provisions of the REP in a number of respects. The Court noted that s 74(1) of the EPA Act at the time provided that “an environmental planning instrument may be amended in whole or part by a subsequent environmental planning instrument whether of the same or a different type”. Clause 4 of the North Coast REP 1988 provided as follows: “Subject to section 74(1) of the Act, in the event of any inconsistency between this plan and any other environmental planning instrument (other than a State environmental planning

policy) applying to the land to which this plan applies, this plan shall, to the extent of the inconsistency, prevail.” Pearlman CJ held in relation to the inconsistency issue as follows at p 361: “Clause 4 operates to over-ride s. 36 of the Environmental Planning and Assessment Act; it negates the general presumption that there is no hierarchy between environmental planning instruments but it functions only in the case of any inconsistency and to the extent of that inconsistency. There may be a distinction between an inconsistency which is ‘direct’ in the sense of there being a conflict between provisions, or one that is ‘indirect’ in the sense that one provision is intended to ‘cover the field’: cf the discussions on this distinction and the inter-relationship of the relevant tests for determining inconsistency under s. 109 of the Commonwealth Constitution in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260, 276 and 280. It is clear, however, that what is involved in a determination of inconsistency is a comparison of provisions that do not sit comfortably together or cannot together operate in harmony. In such a case, a clause such as cl. 4 functions to render one provision operative, the other inoperative. But that is not the situation in this case. Here we have a noncompliance, a case where a provision in one planning instrument requires certain actions to be taken in the preparation of another planning instrument, and no such actions have been taken. There is no comparison of conflicting provisions. There is no provision in one instrument to which there is a contradictory counterpart in another instrument. The issue which arises in this case is noncompliance, and not inconsistency, and accordingly, in my view, cl 4 of the North Coast Regional Environmental Plan 1988 does not operate to render the Coffs Harbour Local Environmental Plan No. 21 invalid.” Following this, Pearlman CJ held that the non-compliance of the LEP with the provisions of the REP did not lead to the invalidity of the LEP.

On appeal to the NSW Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324 (Coffs Harbour), the inconsistency issue was again argued by the appellant. Kirby J provided an extensive analysis of the inconsistency provisions in s 36 of the EPA Act as they were in their original form from the original 1979 Act until the 1996 Amendments at p 330–332 as follows: “As a result of s 36 of the Act, where an inconsistency appears to exist [p 331] between environmental planning instruments three principles of construction may be taken into account: 1. There is no presumption of construction that, to the extent of any inconsistency, the provisions of an environmental planning instrument are to be accorded priority over another such instrument in accordance with the level of instrument, that is, State environmental planning policy over regional environmental plan over local environmental plan: see s. 36(a)(i) of the Act. To an extent, this principle of no priority is reinforced by s. 74 of the Act. Section 74(1) of the Act provides that ‘an environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type’ [emphasis added]. For the purposes of s. 74(1) of the Act ‘amended’ includes ‘altered, varied or repealed’: see s. 74(3) of the Act. 2. It is a presumption of construction that, to the extent of any inconsistency, the provisions of an instrument made later in time will prevail over one made earlier: see s. 36(b) of the Act. 3. Both the principles of construction just noted may be displaced by a provision within the instrument indicating to the contrary. This is made clear by the words ‘unless otherwise provided’ in the first sentence of s. 36 of the Act

and again in s. 36(b) of the Act where it is said ‘unless a contrary intention appears’. For reasons which appear in the discussion of cl. 4 of the regional environmental plan, below, the relevant provision otherwise or ‘contrary intention’ must be that of the latter, as opposed to former, instrument. These are the three applicable rules of construction which emerge from s. 36 of the Act and are to be applied in this case. There are two further matters warranting comment: 4. The term ‘inconsistency’ in s. 36 of the Act is to be construed having regard to the ordinary meaning of the word. It was suggested during argument that the term ought be approached in a manner similar to that adopted when considering the operation of s. 109 of the Australian Constitution. It is not necessary to pursue that suggestion in order to resolve the dispute now before the Court. In any event, it is, in my view, inappropriate to apply the law governing the operation of s. 109 of the Australian Constitution to s. 36 of the Act. In general terms, s. 109 of the Australian Constitution concerns, to the extent of any inconsistency, which law prevails and which law is made invalid as between the laws of at least two organs of the Federation purporting to make laws dealing with the same subject matter. Here the dispute concerns, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature is to prevail. The resolution of this dispute requires only that the word ‘inconsistency’ be given its ordinary and natural meaning without the gloss which has necessarily developed around the meaning of the word in a constitutional setting. Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is ‘want of consistency or congruity’; ‘lack of accordance or harmony’ or ‘incompatibility, contrariety, or opposition’ with another environmental planning instrument. Upon that understanding of the term, if the Coffs Harbour Local Environmental Plan 1988 (Amendment No. 21) were found to breach, or to involve non-

compliance or otherwise disharmonious effect and operation as against the regional environmental plan, this would be evidence of an ‘inconsistency’ of the type to which s. 36 of the Act refers. [p 332] 5. Where there is such an ‘inconsistency’, the ultimate effect of s. 36 of the Act is that one environmental instrument shall prevail over another. Neither s. 36 of the Act, nor any other section, talk of the environmental instrument ‘prevailed’ over becoming invalid, in whole or part, as does, for example, s. 109 of the Australian Constitution. Nor would it be appropriate to read into the Act such legislative intention. Rather, the ultimate effect of s. 36 of the Act must be that the environmental instrument ‘prevailed’ over simply ceases to be operative in that inconsistent respect. Of course, such a cessation of effectiveness may be tantamount to invalidity in some circumstances. In other circumstances the allegedly inconsistent provisions will only be inconsistent so far as the competing environmental planning instruments apply to the same portion of land. Thus, the operation of the instruments in respect of different land may not be inconsistent. Upon that basis no useful purpose would be served by construing s. 36 of the Act as rendering invalid the inconsistent provision prevailed over. Indeed, such a construction would be doubtful for, while such an inconsistent instrument may cease to be effectual as against another environmental planning instrument for the purposes of that inconsistency only, the invalidity of such an instrument would render the inconsistent instrument invalid for all purposes, not just for the purposes of the inconsistency. The foregoing understanding of s. 36 of the Act has significance for the manner in which a challenge to an instrument such as the Coffs Harbour Local Environmental Plan 1988 (Amendment No. 21) is to be viewed. It is unfruitful to contend that any inconsistency, by way of breach or

however otherwise categorised, results in the invalidity of the instrument ‘prevailed’ over. Invalidity in such a context will only be found as a result of the presumed legislative intention. For the reasons which I have expressed, and for those set out in the judgment of Pearlman J, such an intention is unlikely to, and indeed cannot, be found in the present case. A more fruitful challenge (in circumstances akin to the present) is to suggest that the provisions of the Act, and the relevant instruments, make it clear that, as a matter of construction, one instrument prevails over another because there is an ‘inconsistency’ and that ‘inconsistency’ is evidenced by disharmony between the two instruments; the issue of invalidity as such not arising.” It is noted that Kirby P advanced the view that the meaning of inconsistency for the purposes of the EPA Act did not include the broad “cover the field” approach used in the interpretation of s 109 of the Australian Constitution. Rather, Kirby P said that under s 36, inconsistency had a narrow meaning of want of consistency or congruity, lack of accordance or harmony, or incompatibility, contrariety or opposition between two EPIs. Further, he noted that, in the event of an inconsistency, it did not mean that one provision was rendered invalid. Rather, one EPI simply prevailed over the other, and the EPI prevailed over ceases to operate in relation to the inconsistent matter. Kirby J then held the effect of cl 4 of the North Coast REP 1988 was to remove the presumption in s 36(a) of the EPA Act that an REP does not prevail over an LEP, but that cl 4 did not operate to counter the presumption in s 36(b) of the EPA Act that a later EPI prevails over an earlier EPI. Kirby J held that the LEP was inconsistent, in the sense of his definition, with the REP. Kirby J said at p 334: “I would accept as correct for the purposes of the appeal the findings of Pearlman J, that the purported new zoning contained within the Coffs Harbour Local Environmental Plan 1988 (Amendment No. 21), so as to facilitate the development of a

sewerage treatment facility in an environmentally significant headland of natural bushland, is ‘inconsistent’, in the sense which I have earlier indicated, with cll 29(c), 83(h), 35(2)(b) and 32(a) of the regional environmental plan. Those clauses relevantly concerned the requirement that a local environmental plan must include: significant areas of natural vegetation (cl 29(c)); restrict development so as to minimise impact upon the coastal processes and minimise the visual impact of near shore development (cl 32(a)); not alter or remove provisions which protect or conserve the land (cl 35(2)(b)); and contain provisions designed to give effect to the policies of the regional environmental plan (cl 83(h)). The findings of Pearlman J are thus ample evidence of an ‘inconsistency’ sufficient on its face to attract the operation of s. 36 of the Act.” However, Pearlman CJ explicitly held that there was no inconsistency, rather a non-compliance. Hence, Kirby P took a broader view of what constitutes an inconsistency than Pearlman CJ, finding that a noncompliance amounted to an inconsistency. However, the LEP as the later instrument did not express an intention to displace the presumption in s 36(b), nor did cl 4 of the REP have an enduring prospective operation such as to override a later LEP. As a result, the LEP prevailed over the REP. Kirby J agreed with Pearlman CJ in relation to her refusal to declare the LEP invalid or otherwise void. Mahoney JA, similarly to Kirby P, interpreted Pearlman CJ’s findings as amounting to an inconsistency between the REP and LEP. He then held at p 344–346: “During the course of argument reference was made to, inter alia, the meaning in this regard of ‘inconsistency’ and the significance of it in the complicated scheme of environmental planning law set up by and under the Act. It is not possible to formulate simple principles which, without exception and qualification, will state the manner in which the legislation now operates. But it is, I think, useful to draw out what is the structure of the legislation in so far as it operates to govern the present matter.

The Act contemplates a variety of environmental planning instruments: see Pt 3. These include State environmental planning policies, regional environmental plans and local environmental plans. These planning instruments embody, in principle, the guidelines to be established at various levels of generality in the complex of environmental and planning law. It is contemplated that ordinarily they will be or may be made by (to adapt the provisions of s 5(b)) ‘different levels of government in the State’. It was therefore necessary for the draftsman to provide for the relationship which should exist between different planning instruments when they did not accord with each other. In doing this the draftsman had in mind, inter alia, two things; amendment and inconsistency. It may be the intention of a subsequent planning instrument to amend the existing planning instruments. In such event, it was necessary for the draftsman to state what should be the power of the relevant governmental authorities to amend, not merely planning instruments made by them previously, but planning instruments made by other authorities. It might have been argued that a planning instrument made by an authority high in governmental structures should not be amended by an authority lower in that structure. To deal with that matter, s 74 of the Act was enacted. The section provides that a planning instrument may be amended by a subsequent planning instrument ‘whether of the same or of a different type’ and that ‘a subsequent environmental planning instrument shall be made in accordance with the provisions of this Part except …’ to the extent there provided. It was, to the extent provided by s 74, made clear that, for example, an [sic.] local environmental plan could amend a regional environmental plan. It could, in this sense, contain provisions ‘inconsistent’ with the regional environmental plan. But, as the draftsman was no doubt aware, it is possible for there to be an ‘inconsistency’ between two instruments in a case where the latter instrument is not intended to amend the former instrument. It is not necessary, for the purposes of this proceeding, to pursue the conceptual basis of the difference

between a latter instrument which amends a former instrument and one which is merely inconsistent with it. But, I believe, the draftsman contemplated that there could be ‘inconsistency’ in the absence of an intention to amend, even an intention to amend within the wide meaning given to ‘amend’ in s 74(3). On this basis, s 36 was enacted. That [p 345] section provides that ‘in the event of an inconsistency between environmental planning instruments, then, to the extent of the inconsistency and unless otherwise provided …’ there is no general presumption that an instrument made at a higher level shall prevail over one made at a lower level; the section provides that ‘the provisions of a later instrument prevail over the provisions of an earlier instrument, unless the contrary intention appears.’ It is against this background that it is necessary to consider the construction of the provision in the regional environmental plan principally relied upon by the plaintiff corporation, viz, cl 4, and the effect in that regard of the present local environmental plan. It was, in my opinion, not the intention of cl 4 to prevent the subsequent amendment of the regional environmental plan. It is not necessary to consider whether it would be possible, by a provision in a regional environmental plan, to prevent its subsequent amendment by the means provided for amendment generally by the legislation. Clause 4, by its reference to s 74(1), clearly indicated that the regional environmental plan might be amended by a subsequent planning instrument. (The present case does not raise for consideration, for example, whether the terms of s 74(2) were complied with). Therefore, if and in so far as the local environmental plan of 15 October 1992 operates by way of an amendment, it may, in my opinion, validly so operate. But that, I think, is not the thrust of Mr Robertson’s argument in this regard. He suggests, I think, that the local environmental plan of 15 October 1992 is not an amendment of the regional environmental plan. His contention is that it is merely

‘inconsistent’ with it in the sense to which cl 4 refers. It is therefore necessary to consider more closely what is the meaning of ‘inconsistency’ in that clause. Two instruments may be inconsistent if the general principles or general provisions provided by each are different. They may be inconsistent if the later instrument enacts a provision which is a qualification or an exception to a general principle stated in the earlier instrument. And there are, no doubt, other species of inconsistency. What is here in question is not inconsistency in these senses. That on which the plaintiff corporation relies is the fact cl 29(c) contains a direction as to what shall be done by or included in a local environmental plan subsequently made in respect of the area covered by the regional environmental plan. The complaint is that the present local environmental plan does not carry out a direction given by cl 29(c) of the regional environmental plan. I do not think that such a failure constitutes an ‘inconsistency’ within cl 4. That clause was concerned with two instruments containing provisions inconsistent in the other senses to which I have referred. This is clear from the terms of cl 4: if there is an inconsistency then the regional environmental plan is to ‘prevail’. Such a provision — the notion of ‘prevail’ — has, of course, no operation where what has happened is simply that the later instrument has not carried out a direction contained in the regional environmental plan as to what the later instrument shall include or not include. I am conscious that, for example, the failure to include a particular part of land in the local environmental plan may result in different planning restrictions applying to it or to the other areas. But it is not to that to which cl 29 is directed. That clause is directed to (to adapt the words of the head of it) [p 346] ‘plan preparation’. Accordingly, I do not think that this matter is determined by the terms of cl 4.

But that, of course, does not completely meet the argument presented by Mr Robertson. His contention is — at least his submission suggests — that if there is a non-compliance with a requirement of the regional environmental plan, the fact of noncompliance produces invalidity. I do not think that that is the result of the present ‘inconsistency’ or failure to comply with the regional environmental plan. The effect of non-compliance with a statutory provision depends upon the statutory intention. The terms ‘mandatory’ and ‘directory’ are sometimes used to distinguish cases in which the intention is that non-compliance shall result or not result in invalidity. … Clause 29 is, as I have said, a direction in relation to what should be done in preparing a local environmental plan. The directory nature of it may, I think, be seen from the generality of the provision in, for example, pars (b) and (e): they can, I think, hardly involve invalidity if not complied with. And it would be strange if a [sic.] omission to include what, on a proper factual assessment, constituted a ‘significant area of natural vegetation’ should invalidate the whole of a local environmental plan. For these reasons, I agree with the conclusion of the learned trial judge in this regard. I would dismiss the appeal with costs.” Mahoney JA noted two types of inconsistencies: (1) where the general principles or general provisions in two EPIs are different, and (2) where a later EPI qualifies or provides an exception to a general principle in an earlier EPI. He noted there were undoubtedly other types of inconsistencies as well. Mahoney JA did not refer to the “cover the field” type of inconsistency under s 109 of the Australian Constitution. In this context, Blackshield and Williams1 have identified three broad

approaches in characterising an inconsistency in constitutional law as follows: (1) the impossibility of obedience to both laws, as in the case of an obligation combined with a prohibition (2) the conferral of a power by one law and its removal or diminution by another, and (3) a discernible intention to “cover the field”, on the part of the law having paramountcy. Sheller JA noted that s 36 is directed towards the provisions of the later EPI and whether its provisions prevail in the event of inconsistency over an earlier EPI. He noted that s 36 is not directed to providing that a current instrument may be made to prevail over future instruments. He notes at p 348–349 as follows: “Section 36 is concerned to provide that ordinarily the provisions of later instruments prevail over inconsistent provisions in earlier instruments without regard to any supposed hierarchy among them. If the later instrument shows a contrary intention the earlier instrument cannot control it. But it is a matter for the Minister, at the time the later instrument is made, to decide whether in the event of an inconsistency the later instrument will prevail or not and the extent to which it will prevail. The Minister may stipulate in the later instrument that, in the event of inconsistency then to the extent of the inconsistency, it will not prevail over earlier instruments. Or it may appear from the later instrument itself that it was the Minister’s intention that the later instrument should not prevail over the earlier instrument. Section 36 is directed to the provisions of the later instrument and whether those provisions prevail in the event of inconsistency over earlier instruments. Whether they do is dictated by s 36 or the provisions or intentions found in the later instrument. The section is not directed to providing that a current instrument may be made to prevail over future instruments, a prospect which would be highly inconvenient. Speaking of the framers of constitutions in the context of British constitutional law, Lord Birkenhead in McCawley

v The King [1920] AC 691 at 703 said: ‘They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived.’ The parliament, in enacting s 36, likewise has shrunk from such an assumption about those with delegated authority under Pt 3 of the Act. The provisions of the later instrument will prevail over the provisions of an earlier instrument unless the later instrument otherwise provides or a contrary intention appears from it. Section 36 does not enable the Minister [p 349] to entrench a provision in an environmental planning instrument so as to inhibit the operation of later inconsistent environmental planning instruments. In some environmental planning instruments such power has been assumed, I think wrongly, to exist; for example, State Environmental Planning Policy No. 4, cl 5 with which compare State Environmental Planning Policy No. 21, cl 5. I am of the opinion that, if cl 4 was intended and as a matter of language operates to prevent Coffs Harbour Local Environmental Plan 1988 (Amendment No. 21) coming into effect to the extent of its inconsistency with the regional plan, it was beyond power. Accordingly I agree that the proceedings in the Land and Environment Court were rightly dismissed and that this appeal should be dismissed.” Sheller JA correctly emphasises that s 36, as originally enacted, is directed at the terms of the later EPI and whether its provisions prevail over an earlier EPI, and is not directed at entrenching the provisions of an earlier EPI over later ones. However, the radical change to s 36 with the introduction of a hierarchy with the 1996 and 2005 Amendments does achieve the entrenchment of earlier higher order EPIs over lower order ones. Footnotes

Footnotes 1

Blackshield, T & Williams, G, 2006, Australian Constitutional Law and Theory, 4th edition, Federation Press, Sydney, p 376.

¶8-030 Castle Constructions Pty Ltd v North Sydney Council — inconsistency within a single Local Environmental Plan The meaning of an inconsistency is further explored by the NSW Court of Appeal in Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 (Castle Constructions). This case does not deal with inconsistency between two EPIs and the application of s 36 of the EPA Act. Rather, it deals with inconsistency within a single LEP, the North Sydney LEP 2001. The land in question was located in the North Sydney Centre, land which was originally excluded by the Minister when the LEP was originally made. Later, the LEP was amended to insert new Div 4 and 4A by the North Sydney LEP 2001 (Amendment No 9), providing planning controls for the site in question. Clause 28A in Div 4 of the amended LEP provided: “The provisions of this Division prevail over all other provisions of this plan, to the extent of any inconsistency, except for Part 4 — Heritage Provisions.” Division 4 contained specific objects for that division and cl 28D, headed “Building heights and massing”. The development application (DA) (the subject of the proceedings) proposed a 31-storey commercial/residential building, comprising basement parking, a podium of five commercial floors and a tower of 26 residential floors, with a total height of 97 metres above Walker Street. This DA complied with cl 28D. This site was zoned Mixed Uses. Division 5 contained specific objectives for the building height controls in the Mixed Use zone. It also contained cl 30 providing for a Building Height Plane (BHP). If cl 30 applied to the site, its effect would have

been to limit the maximum height of any buildings to 19 metres in contrast to the proposed height of 97 metres, and, because of the angle of the plane, to require the elimination of the tower element of the DA. An issue in the proceedings was whether there was an inconsistency between cl 28D and 30 such that cl 28A operated so that cl 28D prevailed over cl 30. At first instance in the NSWLEC, it was held by Talbot J that cl 28D and 30 were not two inconsistent provisions that could not be reconciled as a matter of ordinary interpretation. The basis for that conclusion was that each clause addressed different objectives, with one dealing with the transition from the highest buildings stepping down towards the boundaries of the centre, while the other dealt with how the transition was to be achieved at the edges of the centre where land in the Mixed Use zone adjoined a residential zone. Tobias JA (with Bell J agreeing and Basten JA in dissent) held that there was an inconsistency between cl 28D and 30 and, due to the operation of cl 28A dealing with the inconsistency, cl 28D prevailed over cl 30. Tobias JA held at paragraphs [41]–[46], [55]–[57], [59] and [61]–[63]: “41. It was ultimately common ground that the term ‘inconsistency’ in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term ‘inconsistency’ in s 36 of the EPA Act was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Australian Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word ‘inconsistency’ be given its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms:

‘Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is ‘want of consistency or congruity’; ‘lack of accordance or harmony’ or ‘incompatibility, contrariety, or opposition’ with another environmental planning instrument.’ 42. The appellant submitted that the controls in both cls 28D and 30 on their face applied to the site and both effectively controlled the height of any building upon the site. There was therefore a clear potential for conflict. The possibility of that conflict was recognised by cl 28A. On the basis of the analysis of Kirby P in Coffs Harbour, the question which arose in the present case was whether there was a want of consistency, a lack of harmony or an incompatibility between the controls provided by cl 28D(2) on the one hand and that provided by cl 30(2) on the other. 43. It was submitted that the fundamental conflict between the two provisions related to the objective in each to control building height and massing. It was, so it was submitted, permissible to look at the practical effect as well as the legal operation of the two provisions in order to determine whether the operation of the dominant provision (in this case cl 28D) would be compromised. Properly applied, cl 30 would have restricted the height of the building on the site to 5 storeys (the height of the podium) whereas the application of cl 28D would produce a much higher building. Accordingly the two provisions could not operate harmoniously with respect to the site and there was, therefore, a fundamental discord between them. 44. It was further submitted that cl 28D(1) expressed an intention, in the context of the special provisions in Division 4 with respect to the Centre, to provide an exhaustive set of controls with respect to height, massing and overshadowing as well as building design with the Centre in the context of the impact of a building which complied with those controls on surrounding residential and public open space zones. … 45. The appellant further submitted that the conflict between the two provisions was highlighted in the present case by contrasting

the extremely detailed provisions of cl 28D … . 46. On the other hand, the BHP in cl 30 applied generally and indiscriminately in all the mixed use zones where there was an adjoining or adjacent residential or open space zone. … … Is cl 30 inconsistent with cl 28D of the LEP? … 55. The following factors in my opinion favour the appellant’s case of inconsistency in substance as distinct from mere form between cl 28D and 30: (a) Although there are some subtle differences between the specific objectives stated in cl 28D(1)(b), (c) and (d) and those stated in cl 30(1) (to which I refer below), they are not significantly at odds with each other. Thus objectives (c) and (d) of cl 28D(1) have some parallel or common elements with objective (b) in cl 30(1); (b) One of the specific objectives of the BHP as stated in cl 30(1)(a) is to ‘ensure compatibility between development in the mixed use zone and adjoining residential or open space zones’ Clause 29(1)(a), which relates to the specific objectives of the building height control with respect to the mixed use zone, is in identical terms. Yet cl 29(2) which sets out the building height controls has no application to the mixed use zone within the Centre … The specific objectives of cl 28D which are also directed to building heights as well as massing, are in different terms to specific objective (a) of cls 29(1) and 30(1). As I have already observed, although the specific objectives of cl 28D are not dissimilar in substance to the specific objectives of cl 30, they are not identical, the most relevant difference being that to which I have just referred. This is some indication that the specific objectives of cl 28D with respect to buildings within the mixed use zone

in the Centre were to be assessed differently to those applicable to the mixed use zones outside the Centre. (c) A further differential in the specific objectives of the clauses referred to can be found by comparing objective (d) in cl 29(1) and objective (b) in cl 30(1) with the specific objectives in cl 28D(1). Specific objective (d) in cl 29 is to ‘provide ventilation, views, building separation, set back, solar access, light, and avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like’. Specific objective (b) in cl 30(1) is in nearly identical terms substituting for the word ‘provide’ the words ‘minimise adverse effects … in relation to’. These objectives are to be contrasted with those referred to in cl 28D(1)(c) and (d) which aim to minimise overshadowing of land in the residential zones and to protect the privacy of residents within and around the Centre. Those objectives are then reflected in the controls provided in cl 28D(2)(b) and (d). They are in this form more general (and therefore more flexible) than those in cl 30(1). Again, this differential in the specific objectives with respect to building heights in the mixed use zone within the Centre compared to development in those zones outside the Centre serves to demonstrate that the draftsman intended there to be a difference, albeit subtle, between the building height and massing controls in cl 28D compared to those provided for by cls 29 and 30. (d) A more significant difference between cl 28D on the one hand and cl 30 on the other is that whereas the latter is subject to variation pursuant to an objection made under SEPP 1, that SEPP does not apply to the controls referred to in cl 28D(2)(a), (b) and (c): see cl 28D(3). Pursuant to cl 28D(4) specific provision is made to empower the consent authority to vary, but only to a minor extent, the operation of the overshadowing controls in cl 28D(2)(b) and (c) but

subject to compliance, in particular, with subparagraphs (a), (b) and (c) of that subclause. It is noteworthy that neither cl 28D(4) nor SEPP 1 applies to the height control set forth in cl 28D(2)(a). (e) I have not overlooked the fact that the control referred to in cl 28D(2)(d) is subject to the application of SEPP 1. The point, however, is that a careful consideration of the detailed and quite complex provisions of cl 28D compared to the far more simple quantitative controls of cls 29 and 30, in my opinion, demonstrates that cl 28D was intended as an exclusive code in respect of building heights and massing of buildings within the Centre’s zones including its mixed use zone. (f) Although, consistent with the reasons of Kirby P in Coffs Harbour at 331, I have avoided an approach to the concept of ‘inconsistency’ in cl 28A by reference to the jurisprudence which governs the operation of s 109 of the Australian Constitution, nevertheless, the differences between the complex controls in cl 28D governing building heights and massing of development within the Centre and the more blunt building height controls within the mixed use zones provided by cls 29 and 30, are indicative of there being an incompatibility between the controls in cl 28D on the one hand and those in cl 29 and, relevantly, cl 30 on the other. As was observed by Gummow and Hayne JJ in Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 138[18]; [2006] HCA 5 at [18], a case involving the implied repeal by a later statute of an earlier statute, inconsistency lay at the root of the principle of implied repeal and that ‘deciding whether there is such inconsistency (‘contrariety’ or ‘repugnancy’) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question.’

(g) It is also of some interest to note that Gummow and Hayne JJ in Ferdinands (at 146 [49]) further observed that: ‘[r]eference to ‘implicit contradiction’ may suggest that it is both permissible and useful to resort to ‘covering the field’ tests developed in the application of s 109 of the Constitution in deciding whether a later Act impliedly repeals an earlier. It is, however, necessary to recognise that s 109 concerns the paramountcy of a law of the Commonwealth over a law of a State. The question in the present case is not whether one law enacted by one legislature prevails over a law enacted by another legislature; it is whether the presumption that two laws made by the one legislature are intended to work together is displaced.’ (h) The question in the present case is whether one provision in an instrument made by the Minister as delegated legislation prevails over a different provision in the same instrument. Were it not for the eschewing by Kirby P in Coffs Harbour of the approach based on s 109 of the Constitution to the operation of s 36 of the EPA Act, it would be tempting to adopt the ‘covering the field’ test as the appellant in its written submissions pressed upon the Court, notwithstanding that it appears to have fallen out of favour in some contexts not presently relevant: cf Sweedman v Transport Accident Commission (2006) 224 ALR 625 at 636 [48]; [2006] HCA 8 at [48]. Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of ‘inconsistency’ which, as Kirby P points out in Coffs Harbour, involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the

‘appearance of exhaustiveness’ on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30. (i) It should also be observed that the only relevant ‘operational’ provisions of Division 4 are cls 28C and 28D. The former is confined to railway infrastructure controls whereas the latter is general in its application to land within the Centre upon which the erection of a building is proposed. The draftsman of Division 4 clearly envisaged that either or both of cls 28C and 28D had the potential to be inconsistent with other provisions of the LEP which, but for cl 28A, would apply to the development of land within the Centre. In my opinion cl 30 is the only candidate with such a potential. 56. The main point made by the Council in submitting that cl 30 has work to do notwithstanding cl 28D, is that the former only operates to apply the BHP control to a building on land that adjoins or is adjacent to land within a residential or open space zone. In other words, it does not apply generally to buildings within the mixed use zone but only, in effect, to buildings proposed to be erected on land at the edge or periphery of that zone. On the other hand, cl 28D is not so confined but operates generally within all zones within the Centre. 57. The distinction referred to is technically correct but in my opinion there is no relevant difference in substance. This is because, so far as the impact of buildings on a residential zone is concerned, cl 28D(1)(c) states as a specific objective of building height and massing controls within the Centre, the minimisation of overshadowing of land in the residential zones which include the residential zones adjacent to or adjoining the mixed use zone within the Centre. Further, the specific objective in cl 28D(1)(d) is to protect the privacy of residents not only within but also around the Centre. …

59. Accordingly it is apparent that cl 28D was intended to apply to all land within the Centre including those parts which adjoined or were adjacent to residential zones. It follows in my view that the fact that cl 30 is confined to land on the periphery of the mixed use zone where that zone adjoins or is adjacent to land within a residential zone, does not ‘fill a gap’, as it were, in cl 28D so as to avoid the inconsistency to which I have referred. … 61. … The fact that cl 30 is consistent with a number of the objectives expressed in cl 28D masks the fact that there are also differences including, in particular, the significant differences between the nature of the controls in each provision designed to achieve those objectives. 62. This is particularly apparent in the provisions of cl 28D(5) relating to building design and public benefits subparagraph (a) of which is directed generally to the same objectives as cl 30 in terms of the impact of development within the Centre upon lower scale residential development adjoining the Centre. The point, however, is that cl 28D adopts an entirely different approach to the response to that impact in terms of the manner of controlling it which is simply inconsistent with and in contradistinction to the blunt BHP control provided by cl 30. 63. For the foregoing reasons, therefore, I would conclude that cl 30 is in substance inconsistent with cl 28D of the LEP with the consequence, as mandated by cl 28A, that cl 28D must prevail to the point that cl 30 has no application to the site. To the extent to which the Senior Commissioner found to the contrary and based his decision, at least in part, upon the application of cl 30 to the development, he erred in law so that the primary judge’s order remitting the proceedings to a Commissioner for determination in accordance with his reasons must be varied to provide that cl 30 of the LEP has no application to that determination.” Castle Constructions noted with approval Kirby P’s construction of “inconsistency” in Coffs Harbour. However, while agreeing with Kirby P’s avoidance of the approach towards inconsistency in s 109 of the

Australian Constitution, Tobias JA in effect adopted a similar approach where one provision has “an appearance of exhaustiveness on the subject … thereby creating an incompatibility and inconsistency” with another provision. The effect of Castle Constructions is to broaden considerably the meaning of inconsistency to a form of “cover the field” test. Caution needs to be exercised in findings of inconsistency based on “exhaustiveness”, as such finding may traverse beyond the legal interpretation of the provisions of an EPI, to a conclusion as to the underlying planning rationale. This is particularly the case as many EPIs contain cumulative controls often directed to similar but subtly different objectives, such as provisions relating to floor space ratio, height, site coverage, etc, directed to the bulk and scale of development.

¶8-040 Hastings Point Progress Association Inc v Tweed Shire Council — what constitutes an inconsistency? The issue of what constitutes an inconsistency was again considered by the NSW Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285 (Hastings Point). This case involved an application for a seniors living facility at Hastings Point in northern New South Wales. The land was zoned Urban Expansion 2(c) under the Tweed LEP 2000 (TLEP 2000) and was permissible with consent. Clause 8(1) of the TLEP 2000 provided: “The consent authority may grant consent to development … only if: … (c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole.” The SEPP Seniors Living (SEPP — SL) provided in cl 17 and 5 as follows:

“17 What Chapter does This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy: (a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing, and (b) development on land that adjoins land zoned primarily for urban purposes for the purpose of any form of seniors housing consisting of a hostel or a residential care facility.” “5 Relationship to other Environmental Planning Instruments … (3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.” The issue in the proceedings was whether there was an inconsistency between cl 8(1) of the TLEP 2000 and cl 17 of the SEPP — SL, such that cl 5 of the SEPP — SL applies. McColl JA and Young JA both held there was an inconsistency, with Basten JA dissenting. McColl JA said at paragraphs [5]–[9]: “5 It is unnecessary, in my view, to engage in a semantic analysis of the meaning of the word ‘inconsistency’. In the present case it carries its plain meaning — whether cl 8 of the TLEP 2000 and cl 17 of the SEPP — SL could operate concurrently: Coffs Harbour Environment Centre Inc. v Coffs Harbour City Council (1994) 84 LGERA 324 (at 331) per Kirby P; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 (at [41]) per Tobias JA (Bell J agreeing). 6 Relevantly one can distil from Basten JA’s reasons, the following propositions with which I agree: (a) when any environmental planning instrument is relevant to a particular proposed development, it is required to be taken

into account pursuant to s 79C of the EPA Act; (b) in considering whether to grant approval for a development which falls under the SEPP — SL, the consent authority must also take into consideration the matters set out in s 79C(b)– (e) [sic.]; (c) it thus follows that the fact that a development proposal to which SEPP — SL applies accords with its provisions does not mandate that it be granted consent; (d) accordingly, the fact that a consent authority has power to grant consent for a development which accords with the requirements of SEPP — SL does not prevent it, in the exercise of its discretion, from refusing to grant that consent; (e) the distinction drawn by Preston CJ in Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 referred to by Basten JA at [52] between the existence of the power to consent and the manner of its exercise as reflected in the present case, is reflected in proposition (d) above. 7 Had cl 8 of the TLEP 2000 been drafted in a manner which required Tweed Shire Council to take into consideration the factors to which it referred, there would have been no inconsistency in the sense to which I have referred between it and cl 17 of the SEPP — SL. 8 However, as Young JA points out at [94] that is not how cl 8(1) is drafted. It mandates that the Council may grant consent to development only if the three conditions to which it refers are satisfied. In other words, it mandates that consent be refused unless each of those conditions are satisfied. That provision cannot, in my view, operate concurrently with cl 17 of SEPP — SL which permits the development to which it refers ‘despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy.’

9 This is not to say that the consent authority is not required by s 79C to take those conditions into account in its consideration of a development that otherwise complies with SEPP — SL. But having done so, the consent authority has a discretion to grant consent, notwithstanding that it is not satisfied of each of the three conditions in cl 8(1). The inconsistency arises because cl 8(1) mandates refusal in those circumstances.” Hastings Point establishes that an inconsistency arises where a prevailing EPI provides that development is permissible with consent subject to an exercise of discretion in relation to evaluation criteria, and another EPI mandates refusal unless specified conditions are satisfied, thus effectively circumscribing the exercise of discretion.

¶8-050 Principles regarding inconsistency between Environmental Planning Instruments The key principles derived from the discussion on inconsistency between EPIs are as follows: Principle 1: There is a general presumption that a SEPP prevails over an LEP or other instrument. This presumption applies whether the LEP or other instrument was made before or after the SEPP. This general presumption may be rebutted by an express provision (s 36(1) (a)). Principle 2: Where there is an inconsistency between two EPIs of the same kind, there is no hierarchy, but the general principles of statutory interpretation apply (s 36(1)(c)). Principle 3: An EPI may be expressly amended by a later EPI of the same or a different kind as one method of resolving inconsistency (s 36(4)). Principle 4: An inconsistency arises where there is “want of consistency or congruity”, “lack of accordance or harmony” or “incompatibility, contrariety or opposition” with another EPI (Kirby P in Coffs Harbour). This definition includes a first broad category of inconsistency where there is a direct conflict between two EPIs with an impossibility of obedience to both laws, as in the case of an

obligation combined with a prohibition. In addition, this definition includes the two additional broad categories referred to later. Principle 5: Where an inconsistency arises between two EPIs, the effect of s 36 does not make the EPI prevailed over invalid. It simply ceases to be operative in relation to the inconsistency (Kirby P in Coffs Harbour). Principle 6: A provision of an EPI is inconsistent with another in the following circumstances: • where the prevailing EPI required the subordinate EPI to do certain things and it failed to do so (Hence, a non-compliance amounts to an inconsistency (Coffs Harbour).) • where a subordinate EPI qualifies or provides an exception to a general principle in a prevailing EPI (Mahoney JA in Coffs Harbour), and • where a prevailing EPI provides that development is permissible with consent subject to a general exercise of discretion, but a subordinate EPI mandates refusal unless specified conditions are satisfied, effectively circumscribing the exercise of discretion (Hastings Point). Each of these are examples of a second broad category of inconsistency, where there is a conferral of power by the prevailing EPI and a removal or discrimination of that power by the subordinate EPI. Principle 7: The approach towards consistency provided in s 109 of the Australian Constitution with a “cover the field” test under which a Commonwealth law which intended to “cover the field” of the same subject matter will render State laws applying to the same subject matter invalid, is not appropriate for applying to s 36 of the EPA Act (Kirby P in Coffs Harbour, and Castle Constructions). Nonetheless, an inconsistency will arise under s 36 where the prevailing EPI has an appearance of exhaustiveness on a subject, thereby creating an incompatibility and inconsistency. The exhaustiveness of the prevailing EPI may be discerned from the objectives of the provisions

(Castle Constructions). The test of exhaustiveness is similar to a “cover the field” test. This is the third broad category of inconsistency being where the prevailing EPI has an exhaustiveness on a subject, thereby creating an incompatibility and inconsistency.

COVENANTS AND ENVIRONMENTAL PLANNING INSTRUMENTS ¶9-010 Suspension of public and private regulatory instruments Planning law has long recognised that the implementation of planning decisions could potentially be frustrated by public and private regulatory instruments. These regulatory instruments include: • public instruments, such as other legislation or proclamations or ordinances, and • private instruments, such as covenants or other agreements. Section 28 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides a power for an Environmental Planning Instrument (EPI) to provide that a regulatory instrument does not apply to development carried out in accordance with an EPI or in accordance with a consent granted under the EPA Act. Section 28(1) defines regulatory instruments as follows: “… regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.” The operative provision is contained in s 28(2) as follows: “(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument

specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.” A similar provision, existed in the former Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919). Section 342G(4) of the LG Act 1919 provided in relation to a prescribed planning scheme as follows: “342G(4) A scheme may suspend either generally or in any particular case or class of cases the operation of any provision of this or any other Act, or of any rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made, to the extent to which that provision is inconsistent with any of the provisions of the scheme.” However, no comparable power existed in relation to Interim Development Orders under Pt 12A. This power had been exercised from the inception of planning law in New South Wales. Thus, cl 47 of the County of Cumberland Planning Scheme provided as follows: “Suspension of Acts, &c 57. (1) In respect of any land included in zones numbered 4 to 9 inclusive shown in the Table to clause 26 and of any land reserved under Part IIA of this Ordinance the operation of — (a) section three hundred and nine of the Act and any proclamation made under that section; and (b) section 4D of the Housing Act, 1912–1949, and of any notifications made under that section; is hereby suspended to the extent to which such sections, proclamations or notifications are inconsistent with any of the provisions of this Ordinance or with any consent given thereunder. (2) In respect of any land which is comprised in any zone, other

than within a Living Area Zone, shown in the Table to clause 26 and of any land reserved under Part IIA of this Ordinance the operation of any covenant, agreement, or instrument imposing restrictions as to the erection and use of buildings for certain purposes or as to the user of land for certain purposes is hereby suspended to the extent to which such covenant, agreement or instrument is inconsistent with any of the provisions of this Ordinance or with any consent given thereunder.” The affected zones were Industrial Areas (zones 4, 5, 6), Waterfront Industrial Area (zone 7), Extractive Industrial Area (zone 8) and Offensive and Hazardous Industrial Area (zone 9), but did not cover Living Area, Business and Commercial Centre, Rural Area, Green Belt Area and Special Uses Area. Similar provisions were included in most prescribed planning schemes. The power under s 28 of the EPA Act is regularly used to insert a provision in Local Environmental Plans (LEPs). There are various models for its use. An example of a provision applying throughout the Local Government Area to all regulatory instruments, usually with an exemption for the rights or interests of any public authority, may be found in North Sydney LEP 2001 (cl 42). Interestingly, there is no such provision in the Central Business District of Sydney (see Sydney LEP 2005 (cl 15)). Also, there is no standard provision in relation to regulatory instruments in the Standard (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument), although in practice most Standard Instrument comprehensive LEPs made since 2006 include a s 28 provision.

¶9-020 Challister Ltd v Blacktown City Council Challister Ltd v Blacktown City Council (1992) 76 LGRA 10 (Challister) is the leading case dealing with s 28. The case dealt with a merit appeal against Council’s refusal of a development application for a service station at Arndell Park and a merit appeal against Council’s determination of a subdivision application requiring a covenant under

s 81B of the Conveyancing Act 1919 (NSW) in favour of Council to prevent vehicular access to Reservoir Road. Clause 26 of the Blacktown LEP 1998 provided: “26.(1) For the purpose of enabling development to be carried out in accordance with this plan (as in force at the time the development is carried out) or in accordance with a consent granted under the Act, the operation of any covenant, agreement or instrument imposing restrictions on development, to the extent necessary to serve that purpose, shall not apply to the development. (2) Nothing in subclause (1) shall affect the rights or interests of the council under any registered instrument. (3) Pursuant to section 28 of the Act, before the making of this plan the governor approved of subclause (1).” Council’s argument centred upon cl 26(2) as a limitation on the power in s 26(1). Talbot J at p 23–24 found as follows:

“The purpose of s. 28 is to overcome any impediment placed on development which is to be carried out in accordance with Pt IV of the Environmental Planning and Assessment Act. It recognises that the ultimate regulatory provisions in relation to the carrying out of development resides in Pt IV of the Act. If those provisions are complied with either without consent but pursuant to an environmental planning instrument or in accordance with a development consent then the regime of the Environmental Planning and Assessment Act may prevail over any other act or any rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made if it is so provided in an environmental planning instrument with the approval of the Governor. Section 28 was enacted for the purpose of enabling development to be carried out. To that end an environmental planning instrument may include the type of provision of which cl 26 is an example. In order to serve the purpose of enabling development to be carried out a regulatory instrument such as a restriction or covenant shall not apply to development which is carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Environmental Planning and Assessment Act. Section 28(2) removes any bar to the development being carried out. It has no effect on whether development consent should be granted. The terms of the restrictive covenant are not a bar to the grant of a development consent. If a development consent is granted to permit a use which is in conflict with the terms of the restrictive covenant it does not follow that the development consent will be invalid. Neither does it follow that the developer must make application to the Supreme Court to have the covenant released varied or modified if the person having the power to release vary or modify the covenant refuses to cooperate. A close examination of s. 28(2) shows that it is this last step of releasing varying or modifying the covenant to which the subsection is directed.

The opportunity to make such a provision in an environmental planning instrument is intended to achieve a result whereby development which satisfies the criteria laid down by the planning legislation may proceed notwithstanding any constraint imposed by other regulatory instruments. The [p. 24] Parliament recognised the significance of the extent of this power by subjecting its exercise to the approval of the Governor and in some cases to the concurrences of the relevant Minister. Even if cl 26(2) was a valid provision the combined effect of cl 26(1) and cl 26(2) would not amount to a bar to the grant of development consent. Having regard to the provisions of s. 28(5), the express declaration in cl 26(3) of the Blacktown Local Environmental Plan and in the absence of any direct evidence that the approval of the Governor was obtained to subcl (2) it is apparent that the Governor only approved subcl (1). Subclause (2) is a provision in an environmental planning instrument that could only have effect if the Governor had before the making of the environmental planning instrument approved of the provision. I am satisfied on the face of the instrument that the Governor did not give his approval to subcl (2) and accordingly find that cl 26(2) is void and of no effect: see Murphy v Matlock [1926] VLR 170 and Luceme v Collins (1967) 86 WN Pt 1 (NSW) 247; 14 LGRA 186.” Talbot J discusses the role and purpose of s 28 of the EPA Act. He notes it is not a relevant consideration as to whether a development application should be granted. Further, he notes a development consent can be validly granted to permit development in conflict with a covenant, and it is not necessary to apply to the Supreme Court of NSW to modify or vary the covenant. He also points out the importance of s 28(5) in the Governor approving the complete terms of an EPI seeking to override an instrument. Section 28 requires that the EPI specify the regulatory instrument which is not to apply. Hence, there is the capacity for an EPI to

provide that only specified instruments not apply and hence others would apply.

¶9-030 Ludwig v Coshott — covenants and views Ludwig v Coshott (1991) 83 LGERA 22 (Ludwig v Coshott) dealt with two properties in Vaucluse. The defendant’s (Coshott’s) land was higher than the applicant’s (the Ludwig’s) house and the Coshott land had the benefit of a restrictive covenant over the Ludwig land to be at least 55 feet from the front boundary. The effect of the covenant was to protect views of Sydney Harbour. Woollahra Council had granted development consent for an extension to the Ludwig house which infringed upon the rights in the restrictive covenant. The Woollahra LEP (No 27) provided in cl 32 as follows: “32(1) For the purposes of enabling development to be carried out in accordance with a consent granted under the Act, any agreement, covenant or instrument imposing restrictions as to the erection or use of buildings for certain purposes or as to the use of land for certain purposes, to the extent necessary to serve that purpose, shall not apply to the development. (2) Pursuant to section 28 of the Act, before the making of this plan the Governor approved of this clause.” In Ludwig v Coshott, the argument was raised that s 28 requires the EPI to specify and identify the regulatory instrument which is sought to be affected. Bryson J held that: “In my opinion the section requires that the planning instrument specify which, if any, regulatory instrument is not to apply to development. The section does not require that a particular regulatory instrument be identified by a number or any other identifying means. [p 35] Derogation from private rights in favour of controls imposed in the perceived public interest is the essential subject to town planning

[p 36] legislation, and there is no room for surprise when the application of the legislation in detail causes such derogations.” Bryson J then held that the development consent prevailed over the restrictive covenant. The argument raised by the applicant in Ludwig v Coshott in relation to specifying the particular instrument was similarly rejected by Pearlman CJ in Marjen Pty Ltd v Coles Supermarkets Australia Pty Ltd and K-Mart Australia Ltd (1996) 90 LGERA 363 (Marjen) and in Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 (Coles) at 354–355.

¶9-040 Marjen Pty Ltd v Coles Supermarkets Australia Pty Ltd and K-Mart Australia Ltd — no alterations without lessee consent In Marjen, the instrument in question was a shopping centre lease which required that no alterations were allowed to be made to the shopping centre carpark without the lessee’s consent. Pearlman J found: “In my opinion, it is the requirement to obtain the lessee’s consent which is the restriction on the development. Absent that requirement, the development could proceed. It is permissible under the LEP and development consent under the LEP has been obtained.” The use of s 28 in EPIs raises the question of whether there should be a consistent policy for its use, perhaps expressed in the Standard Instrument. The present use appears to be both widely divergent and ad hoc. Moreover, there is the question of whether the extent of derogation of private rights is appropriate, covering matters such as shopping centre leases or restrictive covenants in residential areas relating to views. This is particularly the case when provisions of EPIs made pursuant to s 28 of the EPA Act may be used to provide financial advantage to one party at the expense of another.

¶9-050 Cracknell and Lonergan Pty Ltd v Council of the City of Sydney — does a right of way constitute a “regulatory instrument” capable of being suspended? In Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 372 (Cracknell and Lonergan), Preston CJ in the Land and Environment Court of NSW (NSWLEC) considered whether a right of way (ROW) constituted a “regulatory instrument” capable of being suspended by the operation of s 28 of the EPA Act. The LEP in question was cl 44 of the South Sydney LEP 1998, which suspended only a limited category of regulatory instruments as defined in s 28, namely “any covenant, agreement or similar instrument that purports to impose restrictions on the carrying out of development on the land”. Thus, it limited the application of the suspending provision to only part of the potential categories in the definition of regulatory instrument and did not apply to Acts, rules, regulations, by-laws, ordinances, proclamations and qualified instrument to instruments similar to a covenant or agreement. Further, it required that the regulatory instruments, the subject of the clause, need to be of a specified type, namely one which purports to impose restrictions on the carrying out of development on the land. Preston CJ held that a ROW was not a covenant, agreement or similar instrument. He said what needs to be considered is the regulatory instrument itself and not the right or restriction created by the regulatory instrument. Further, he held it was not an agreement or instrument that purports to impose restrictions on the carrying out of development on land. Preston CJ then considered the question of whether a lease would be a regulatory instrument under s 28. He said at paragraphs [45]–[46]: “45. A lease of property would not prevent the owner of the freehold reversion from applying for and obtaining development consent to carry out development on the leased property (s 78A(1) of the Environmental Planning and Assessment Act and cl 49 of the Environmental Planning and Assessment Regulation 2000) without the consent of the tenant who is not treated as the

owner of the land for this purpose: see s 4(1) definition of ‘owner’ and Local Government Act 1993 Dictionary: definition of owner para (b). If development consent was granted, the lease would be an agreement or instrument which prevented the landlord from carrying out on the leased property development which interfered with the tenant’s rights. 46. It would be remarkable if cl 44 could operate to avoid or forfeit the lease in such circumstances. If cl 44 had that operation, it would expropriate or destroy the rights of the lessee without compensation. The clause should not be given this operation if another construction is fairly open on its language: Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 181; Application of Thompson, p. 4. Another construction is fairly open. The clause can and should be confined to restrictions of a negative nature imposed on development arising from the language of the agreement or instrument. It has no application where the agreement or instrument confers positive rights of ownership or use which would be interfered with by the development.” Cracknell and Lonergan establishes that a ROW and a lease are not a regulatory instrument for the purposes of s 28 of the EPA Act. However, a lease may contain within its terms a covenant which is potentially subject to s 28. Hence, in interpreting and drafting a lease, careful consideration is required as to whether its terms are a covenant in a lease are thus potentially subject to s 28. Where an EPI is amended to extend the operation of a clause suspending regulatory instruments to land previously not covered by such a clause, the amendment to the EPI requires the approval of the Governor, even though the clause suspending regulatory instruments is not changed (see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (Cumerlong)). As Bradbrook and Neave note (footnotes excluded): “19.145 Section 28 has the effect that the covenant is overridden only ‘to the extent necessary’ to permit the relevant development. The covenant or easement is, in effect, suspended but not extinguished, so that if the environmental planning instrument is

amended, the covenant revives at some future date. Planning instruments are likely to become more important means of extinguishing easements and covenants in New South Wales than Conveyancing Act 1919 s. 89. Provisions overriding covenants are now frequently included in environmental planning instruments.”1 While the policy imperatives underlying the operation of s 28 of the EPA Act are clear, its extensive operation raises questions regarding the utility of restrictive covenants and the impacts on the commercial positions of parties to leases, agreements, covenants, etc, when the rights and commercial position of the parties can be significantly altered by the grant of a development consent. This is particularly the case where the regulatory instrument was entered into prior to the inclusion of a provision in an EPI under s 28 affecting the land. Footnotes 1

MacCallum, S & Bradbrook, AF, Bradbrook and Neave’s Easements and Restrictive Covenants, 3rd edition, Lexis Nexis, Sydney, 2011, paragraph 19.145, p 632.

¶9-060 Principles regarding suspension of regulatory instruments The key principles derived from the discussion on suspension of regulatory instruments are set out as follows: Principle 1: An EPI may include a provision that a regulatory instrument specified in the EPI does not apply to development carried out in accordance with an EPI or a development consent for the purpose of enabling that development to be carried out (s 8(2)). Principle 2: The regulatory instruments which may be overcome by a provision in an EPI made under s 28 of the EPA Act include the provisions of any other Act, rule, regulation, by-law, ordinance,

proclamation, agreement, covenant or instrument specified in the EPI (s 28(1)). Thus, it includes private and public restrictions such as restrictive covenants (Ludwig v Coshott), leases (Marjen, Coles) and development consents (Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 (Natva)). Principle 3: The requirement for the EPI to specify the regulatory instruments sought to be suspended does not require the particular regulatory instrument to be identified (Ludwig v Coshott). Principle 4: Where a provision of an EPI made under s 28 of the EPA Act overrides a regulatory instrument, the relevant provision of the regulatory instrument is, in effect, suspended but not extinguished. If the provision of the EPI in question is amended, the affected provision of the regulatory instrument could be revised (Natva). Principle 5: An EPI suspending a regulatory instrument may only be made if the Governor has approved before the making of the EPI the entire provisions suspending a regulatory instrument (s 28(3) and Challister), and where a Minister is responsible for the administration of a regulatory instrument to be suspended, the concurrence of that Minister is obtained before the Governor approves it (s 28(4)). Principle 6: A ROW and a lease are not regulatory instruments for the purposes of s 28, although a lease may contain within its terms provisions which are a covenant. An agreement or instrument does not impose a restriction on development unless the restriction is expressly stated or necessarily implied in the agreement or instrument (Cracknell and Lonergan). Principle 7: Where an EPI is amended to extend the operation of a clause suspending regulatory instruments to land previously not covered by such a clause, the amendment to the EPI requires the approval of the Governor, even though the clause suspending regulatory instruments is not changed (Cumerlong). An EPI may reserve land for a public purpose under s 26(1)(c) of the EPA Act so that such land may be acquired and brought into public ownership.

The question of land acquisition is beyond the scope of this work as it relates primarily to the law relating to land acquisition.

PART C PLAN MAKING: INITIAL PROVISIONS AND FORMER INSTRUMENTS ¶10-010 Environmental Planning Instruments under the Environmental Planning and Assessment Act 1979 With the passage of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in 1979 and its commencement on 1 September 1980, the process of plan making and the types of plans previously applicable under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919) radically changed. The EPA Act introduced three different types of Environmental Planning Instruments (EPIs): (1) State Environmental Planning Policies (SEPPs) (2) Regional Environmental Plans (REPs), and (3) Local Environmental Plans (LEPs). The government’s intentions in relation to LEPs were outlined in the Second Reading Speech in the Legislative Assembly on the original EPA Act. It was delivered on behalf of the Minister for Planning and Environment, Hon Paul Landa MLC, by the Hon Bill Haigh MP on 14 November 1979, as follows: “Part III of the bill deals with the preparation and making of such instruments, namely State environmental planning policies, regional environmental plans and local environmental plans. Part III of the bill ensures that plans are prepared for a definite purpose — to achieve any of the objects of the Act. That is found in clause 24. This purpose is reinforced by clause 25 which requires every planning instrument to state the aims, objectives, policies and strategies whereby that instrument is designed to

achieve any of the objects of the legislation. In other words, the bill makes it crystal clear that plans are not an end in themselves — they are a means to an end — the achievement of the express objects of the bill. As I said at the outset of this speech, there will always be difficult or controversial decisions to be taken in particular circumstances where competing alternative objectives press for priority. The formulation of the first object is in such terms as to concede readily the potential competition between rival objectives. But this is merely to recognize the difficulties that face the decision-maker in given situations where genuine claims for priority exist. The plan preparation process and procedures are designed to facilitate the task of decision-making with full knowledge of consequences and with an openness to community opinion and, in the ultimate, decision-making. The second object of the bill concerns sharing government responsibility for environmental planning. Part III confers on local government for local environment plans an autonomy not hitherto granted. The Government realizes that the department should be primarily concerned with initiating and developing policies of and plans for matters of State or regional significance. These matters require priority attention. The department’s capacity to discharge this heavy responsibility depends upon its being relieved of involvement in local planning decisions and detail. This does not ignore the importance of local planning issues but it does recognize that henceforth local government must exercise responsibility in this field. Local government has now had more than thirty years experience with town planning legislation, and the Government considers that it is now opportune for it to be more independently responsible for local planning decisions. This development is consistent with the widely held view that local issues require the close contact that is capable of being achieved between residents of local government areas and their respective councils. Thus the decision to devolve responsibility to local government for local planning is justified by the long experience that many councils have gained in planning practice and administration and is required by the State’s deliberate decision

that the Department of Environment and Planning should concentrate all of its resources in the field of State and regional planning. A vital nexus exists between, on the one hand, State and regional environmental planning and, on the other, local environmental planning. It is that State or regional policies or plans should generally govern local planning decisions. However, the bill does not posit any inflexible hierarchy in this respect. Clause 61 requires a council preparing a draft local environmental plan to ensure that it is not substantially inconsistent with any State or regional environmental policy or plan or direction given under section 117 in the absence of such plans or policies being in force. By clause 70 the Minister’s power is limited to alter a draft local environmental plan submitted by a council for his final approval of alterations relating to the relationship between that plan and any other relevant planning instruments or directions under section 117. Thus the department’s role in relation to local environmental plans is limited to the requirements of clause 65, requiring the head of the department to certify that the draft plan is not inconsistent with relevant State or regional policies or plans or, if it is inconsistent, that such inconsistency is justifiable. I have already mentioned the limited oversight by the Minister under clause 70 of the draft plan in final form submitted by a council for the Minister’s approval. These changes create a new era for local government responsibility in local planning and the Government looks to local government to exercise its new autonomy for the benefit of local communities.”1 Legislation accompanying the EPA Act provided for transitional arrangements for prescribed planning schemes and interim development orders (IDOs), made under Pt 12A of the LG Act 1919 and applicable at the commencement date of the EPA Act, and schemes and IDOs in the course of preparation at the commencement of the EPA Act to be transferred into the new system. Footnotes

Footnotes 1

NSW Parliament, 14 November 1979, Legislative Assembly Hansard, p 3049–3050.

¶10-020 Key planning definitions The Miscellaneous (Planning) Repeal and Amendment Act No 205 of 1979 (NSW) (MARA Act) repealed Pt 12A of the LG Act 1919 under Sch 2 and provided for savings and transitional provisions in Sch 3. Clause 1(1) of Sch 3 contained the following key definitions: “former planning instrument means a prescribed scheme or an interim development order or The Town and Country Planning (General Interim Development) Ordinance.” “interim development order means an interim development order within the meaning of Part X11A.” “Part X11A means Part X11A of the Local Government Act, 1919, as in force at any time.” “prescribed scheme means a prescribed scheme within the meaning of Part X11A.” Thus, “former planning instrument” (defined above) included three types of plans: (1) prescribed planning schemes under Pt 12A (2) IDOs made under Pt 12A, and (3) the Town and Country Planning (General Interim Development) Ordinance No 105 under the LG Act 1919. From its inception up until the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) (2008 Amendments), the EPA Act defined EPIs and deemed EPIs in s 4(1) as follows: “deemed environmental planning instrument means a former

planning instrument referred to in clause 2 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 and includes an instrument referred to in clause 3(2) of that Schedule.” “environmental planning instrument means a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.”

¶10-030 Former instruments carried forward Former instruments were carried forward with the commencement of the EPA Act on 1 September 1980 as full EPIs. In addition, where the EPA Act used the term EPI, it included a deemed EPI unless otherwise expressly provided in the Act. While a practical necessity, the carrying forward of former instruments into the new system encouraged EPIs and, in particular, LEPs to continue the same structure, approach, style and content as the previous prescribed planning schemes and IDOs. The result was, at best, an evolutionary move towards the new system and, at worst, a perpetuation of the old system into the new, with a continuance of the segregation of land uses with a prescriptive zoning system and the absence of an objectives-based or performance-based system. Further, the savings and transitional provisions provided a discretion for the Minister to order a draft planning scheme ordinance and draft IDO in the course of preparation, but not formally made, as at 1 September 1980, to be completed and made under Pt 3 of the EPA Act (despite any non-compliances with Pt 3) and, when made, for such schemes to be deemed EPIs. This was provided in cl 3 of Sch 3 of the MARA. Clause 4 of Sch 3 also provided continuity for the former Model Provisions adopted under s 342U(3) of the LG Act 1919 in deemed EPIs carried forward into the new system. These former Model Provisions were deemed to be a set of Model Provisions under s 33 of

the EPA Act. This enabled the two previously adopted sets of Model Provisions made under s 342U(3) of the LG Act 1919, namely: • the 1965 Model Provisions (made on 9 July 1975),2 and • the 1970 Model Provisions (made on 17 July 1970),3 to continue to operate where they were incorporated into a former planning instrument. Clause 4 of Sch 3 provided: “4. The provision of any standard or model provisions, adopted wholly or partially by reference by a former planning instrument, in accordance with section 342U(3) of the Local Government Act, 1919, shall be deemed, for the purposes of that instrument, to be a set of model provisions made under section 33 of the Environmental Planning and Assessment Act, 1979, and may be amended or revoked accordingly.” Footnotes 2

NSW Government Gazette No 90 of 9 July 1965.

3

NSW Government Gazette No 88 of 17 July 1970.

¶10-040 Repeal of the Miscellaneous (Planning) Repeal and Amendment Act 1979 and operation of the Interpretation Act 1987 In the 2008 Amendments, s 4 provided that the MARA Act be repealed. Further, the 2008 Amendments to the EPA Act amended the definitions in s 4(1) of the Act to remove the definition of a deemed EPI and in the definition of an EPI to remove the reference to a deemed EPI. The effect of the repeal of the MARA Act was to bring into operation s 30 of the Interpretation Act 1987 (NSW) (Interpretation

Act). Section 30 of the Interpretation Act provides that the repeal of an Act does not affect the previous operation of the Act or anything duly done under that Act. Hence, despite the repeal of the MARA Act, its provisions that former planning instruments become deemed EPIs were done under that Act, and hence, they continue to operate despite the repeal of the MARA Act.

¶10-050 “Sharing” of responsibilities between the State and local levels of government in preparing Environmental Planning Instruments As originally introduced, the three types of EPIs reflected the division of responsibility between the State and local government in keeping with one of the objects of the EPA Act in s 5(b), namely: “To promote the sharing of the responsibility for environmental planning between the different levels of government in the State.” Under the system as originally enacted, SEPPs and REPs were creatures of the State government. They were prepared by the then Department of Environment and Planning (now — after numerous permutations — the Department of Planning) and approved by the Minister. LEPs were essentially the creatures of local government, prepared by local councils, processed and exhibited by local councils, but finally made by the Minister. However, the Minister had circumscribed and very limited powers of intervention in a council’s LEP. The system, as originally enacted, sought to change the process from one completely dominated by the Minister and his/her Department. In sharing responsibility between State and local government, it sought to establish the parameters of the division of responsibility in advance. This was to avoid circumstances where the concept of shared responsibility was a sham, with effectively the Minister making all the decisions the State wished, and only leaving to councils those residual decisions which the Minister did not wish to control or did not have any

interest in. The concept of delegation of that which is perceived by the Minister as “unimportant” to local government, and then with untrammelled powers for the Minister to intervene and ultimately determine the terms of a plan, is hardly a “sharing of responsibility” as sought in the objects of the Act. The process in relation to the making of LEPs under the EPA Act as originally enacted is outlined in Figure 10.1. Figure 10.1: Making of Local Environmental Plans (original EPA Act Model)

¶10-060 2008 Amendments abolish Regional

Environmental Plans and replace Local Environmental Plan provisions The provisions of the EPA Act relating to EPIs, as originally enacted, were subject to some incremental amendments in the years following 1979. However, the provisions relating to EPIs were radically changed by the 2008 Amendments. The 2008 Amendments completely abolished REPs, leaving only two types of EPIs: (1) SEPPs, and (2) LEPs. Further, the 2008 Amendments replaced all of the provisions relating to LEPs with a significantly changed system for their preparation and approval. An understanding of the pre-2008 provisions relating to LEPs is of relevance: • to understand and be able to evaluate the policy basis underlying the post-2008 provisions, and • to assess to what extent judicial consideration of the pre-2008 provisions is still relevant to the post-2008 provisions. Thus, initially we will examine the pre-2008 provisions of the EPA Act regarding LEPs and judicial consideration. The pre-2008 provisions of the EPA Act regarding REPs will be examined in Chapter ¶26 regarding SEPPs, except where they are also applicable to LEPs.

INITIATION OF A LOCAL ENVIRONMENTAL PLAN ¶11-010 Who initiates a Local Environmental Plan? The preparation of a Local Environmental Plan (LEP) under the original provisions of the Environmental Planning and Assessment Act

1979 (NSW) (EPA Act) was initiated either: • by a council (or two or more councils) by a decision of the council(s) (s 54(1)–(2)), or • by the Minister directing a council (or two or more councils) to exercise any functions under Div 4 of Pt 3, including the function of preparing an LEP, within a specified time (s 55(1)). Where the Minister directs a council to prepare a draft LEP, the council is required to prepare the plan (s 55(4)). The Ministerial direction is to perform the function and to do so within the time specified in the direction. However, a direction to perform a function, such as preparing an LEP, does not extend to how that function is to be performed. Thus, a direction by the Minister to the council to prepare a draft LEP for specified land did not extend to the Minister directing the council on what the draft LEP should contain. The power of a council to prepare a draft LEP is limited to one which applies to “the whole or part of the land within its area” (s 54(1)). “Area” is defined in s 4(1) as having the same meaning as it has in the Local Government Act 1993 (NSW) (LG Act 1993) (and prior to that Act, the Local Government Act 1919 (NSW) (LG Act 1919)) and means the Local Government Area (LGA) of the respective council. Thus, a council has no power to prepare an LEP in relation to any lands outside its LGA. This is of relevance where an LGA abuts the ocean, bays or waterways where the LGA boundary is usually the low water mark. Section 205 of the LG Act 1993 identifies what land is taken to be included in an LGA. The intertidal zone is within an LGA bay between headlands. In addition, where there is private land, which is either reclaimed or below low water mark, and it has a structure erected on it, it is taken to be part of an LGA. Further, an LEP cannot be prepared for lands not included within an LGA. Within the territorial boundaries of New South Wales, the areas not included in an LGA include: • the Unincorporated Area of the Western Division of New South Wales in far western New South Wales where there are no declared LGAs, and hence, no councils

• off-shore areas out to the three nautical mile limit of the jurisdiction of New South Wales (and of course, out to the edge of Australian territorial waters and Australia’s Exclusive Economic Zone under the Convention on the Law of the Sea, which are the exclusive responsibility of the Commonwealth of Australia) • submerged lands, which are outside of LGA boundaries, unless they are privately owned and have a structure erected on them, or are within enclosed bays, and • lands outside of New South Wales, either in other states or in Commonwealth territories such as the Australian Capital Territory and the Jervis Bay Territory of the Commonwealth. Where a council decided to prepare a draft LEP, that decision would be made by formal council resolution, unless the council has delegated that power under the delegations power in the LG Act 1993. Where a council decided to prepare a draft LEP, it was required to inform the Director-General of the Department of Planning of the decision to prepare a draft LEP and the land to which it was intended to apply (s 54(4)).

¶11-020 Preparation of an environmental study Under the initial EPA Act, where a council had decided to prepare a draft LEP, or was directed by the Minister, it was required to prepare an environmental study of the land proposed to be the subject of the draft LEP. The environmental study was the precursor of the draft LEP. Essentially, the LEP process was a two-stage process involving: (1) preparation and public exhibition of an environmental study, and (2) (following the completion of (1) above) the preparation and public exhibition of a draft LEP. There was a requirement that a council employ a person who had prescribed environmental planning qualifications to assist the council

in the preparation of both the environmental study and the draft LEP, or to actually prepare them. Hence, the Act sought to impose a level of professionalism in the preparation of both the environmental study and the draft LEP. The provisions relating to the preparation of the environmental study were contained in s 56 and 57 of the original 1979 EPA Act. The public exhibition process for the environmental study was provided for in s 58 of the original 1979 EPA Act. Of note was the option for a council to include in its public notice the kinds of aims, objectives, policies and strategies which it considered the draft LEP should adopt. Thus, the exhibition of the environmental study would provide the following: • the environmental study itself, along with the background survey data on the relevant environmental characteristics of the land in question, and the socio-economic characteristics of the users of the land • the planning context at a state and regional level (State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs) or directions by the Minister under s 117), so that the potential constraints applying to the prospective draft LEP could be appreciated, and • (as an option) the council could specify the kinds of aims, objectives, policies and strategies it considered the draft LEP should adopt. This would provide an indication of the broad policy objectives which the council considered appropriate for the prospective draft LEP. It would also provide a rationale for the prospective draft LEPs, indicating (in effect) why the environmental study had been prepared. Public input and submissions were invited on the aims, objectives, policies and strategies which the prospective draft LEP should adopt as well as the environmental study. Submissions on the aims, objectives, etc, could be made even if the council had not provided its versions of the suggested aims, objectives, etc. Thus, public submissions were invited on both the data and the suggested policy

direction. The council was prohibited from preparing a draft LEP until after the period within which submissions were invited had expired. Section 60 provided as follows: “60. The council shall not prepare a draft local environmental plan until after the expiration of the period referred to in section 58(c).”

¶11-030 Burns Philp Trustee Co Ltd v Wollongong City Council The provisions relating to environmental studies were considered by McClelland CJ in the Land and Environment Court of NSW (NSWLEC) in Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420 (Burns Philp v Wollongong). This case related to a proposal to develop a major shopping centre on land at Woonona (north of Wollongong) at a location known as Balls Paddock. The property developer was New World Properties Pty Ltd, and that company had previously acquired land at Bulli, known as Slacky Flat, and approached the Council to build a major shopping centre on that site. The Council rejected the proposal and subsequently the developer discussed alternative sites with a Council committee. The Council favoured the site at Balls Paddock and resolved to request the developer to submit an application for an LEP, advised the developer that an environmental study would be required, and resolved to prepare an LEP. The developer clearly had a predilection for purchasing pithily named development sites. The Council indicated that the responsibility to prepare the environmental study rested with the developer. The then Department of Environment and Planning notified the Council and published in the Government Gazette specifications in relation to the environmental study for Balls Paddock. The developer commissioned planning consultants to prepare the study, and the Council resolved to authorise these planning consultants to prepare the environmental study on behalf of the Council. The study was prepared and placed on public exhibition.

The Council then prepared a draft LEP, which was exhibited and finally made by the Minister in December 1982. Thereafter, in February 1983, the Council granted development consent to build the shopping centre on the site. The legal challenge was brought by Burns Philp Trustee Co Ltd as trustee for the owners of a rival shopping centre at Corrimal. The basis of the challenge related to the lawfulness of the environmental study, primarily on the basis that the environmental study was prepared by the developer and not by the Council. McClelland CJ said at p 432–434, as follows: “Section 56, read alone, merely contemplates that the study shall be prepared on behalf of the council by a person appointed or employed by it. … The insistence of s. 56 that the study be prepared by or on behalf of the council is a matter of fundamental importance in the scheme of Pt III of the Act. Under this Act (unlike the position of interim development orders previously) there is a basic concept that local councils will have the duty of considering the necessity for, and formulating, proposals for local environment plans. It is true that the Minister makes the final determination as to whether a local environmental plan should be made and that he has some power to amend but his discretion is fairly limited: see s. 70(1). As Cripps J. pointed out in Kur-ing-gai Municipal Council v Mirvac (1982) 49 L.G.R.A. 223 the concept of this Act is that the local environmental plan is the creature of the council. Furthermore, there is a concept in Pt III of the Act which demonstrates a need for an objective consideration of a local environmental study. The very word ‘study’ suggests a disinterested examination of the facts. When the study has been prepared council must place it on public exhibition (s. 58) and people may then make submission as to the ‘aims, objectives, policies and strategies which the draft local environmental plan should adopt’ (s. 59). Significantly the council is forbidden to

prepare a draft plan until after the expiration of the submission period (s. 60) and it must consider any submissions in relation to the study because before the preparation of the plan is commenced (s. 61(o)) it must consider any submissions to aims etc. and in the light of those submissions determine the aims etc. to be adopted in the plan (s. 61(b)). The draft plan must have regard to the study so as to [p 433] achieve the aims etc. (s. 61(d)). This fairly elaborate machinery is consistent only with a notion that there is no preconceived proposal for the zoning of the land, still less a preconceived development proposal. Rather it is envisaged that the council will look at the study area and place the information derived in the study on exhibition so that people can make submissions on the matter set out in the study and as to the aims etc. which should be adopted in any plan. Council is to consider all of those submissions before determining aims etc. and then goes to commence the preparation of a draft plan. These concepts can only support the notion that the study must be prepared by or on behalf of the council itself (as the words of s. 56 would in any event indicate) and that it is not a compliance with the statute for the council simply to receive a study prepared by consultants on behalf of the developer. This submission may be summed up by saying that the essence of the study contemplated by s. 56 is that it must be disinterested. As Mr Wilcox pointed out this does not involve an allegation that a study prepared at the behest of a developer will necessarily be dishonest. But it will, of its very nature, be an advocate’s document which presupposes the desirability of the contemplated development. I have read many consultants’ reports commissioned by developers, prepared for developers and paid for by developers, none of which has argued against the proposed development or even cast a doubt on its being deserving of consent. …

The important point, however, is not who pays for the study but for whom it is prepared. If the council chooses the person, to whom it would obviously be clear that the commissioned study is for the enlightenment of the council and the public whom the council serves and not in furtherance of the case of any possible developer, the requirements of s. 56 will be satisfied. It is not unreasonable, in my view that the person seeking the rezoning should be visited with the cost of the environmental study. The disinterestedness of the consultant, even if he knows the ultimate source of his emolument, would be unaffected since his contract would be with the council and he would be legally entitled to look to it for payment. [p 434] … I am left in no doubt that, despite the council’s belated resolution of 28th June, 1982, to appoint Planning Workshop Pty Ltd to prepare an environmental study (a study which, on the evidence, was by then almost if not totally completed), that study was prepared, not on behalf of the council but of the developer. I see no exaggeration in Mr Wilcox’s description of the council’s conduct in this respect as a charade.” McClelland CJ found the provisions of the EPA Act relating to environmental studies are mandatory, not directory, and hence, the breach of those provisions renders all subsequent action void, including the LEP and the development consent. Following the decision in Burns Philp v Wollongong, the provisions relating to environmental studies were amended in the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (1985 Amendments). The 1985 Amendments removed the two-step process of environmental study and draft LEP with the sequential public exhibition of both. They continued to require the environmental study be prepared by the Council, rather than the proponent for a rezoning. However, they permitted recovery of the costs of an environmental study from proponents of a rezoning.

The 1985 Amendments repealed s 57(3), inserted a new s 57(5), repealed s 58–61 and inserted a new s 61. The process for making LEPs (following the 1985 Amendments) is outlined in Figure 11.1. Figure 11.1: Making of Local Environmental Plans (after the 1985 Amendments — EPA Act Model)

¶11-040 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning In Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 (Gales Holdings), the NSW Court of Appeal considered a challenge to the validity of an amendment to the Tweed LEP to rezone certain land at Chinderah from Special Uses to Industrial. One of the contentions in the appeal was whether the environmental study prepared under s 57 of the EPA Act complied with the specification notified to the Council by the Director-General. Tobias JA (with whom Beazley JA concurred) recounted what the judge at first instance, Bignold J held. Tobias JA said at paragraphs [55]–[56]: “55 The primary judge (at [160]) concluded that properly construed, Planning NSW’s letter of 29 November 2002 did not relevantly specify that there should be ‘an assessment commercial of the retail needs in Kingscliff and the Tweed Coast area’. His Honour did not consider that the text of that letter supported such an interpretation. Considerations of context such as the requirement that the environmental study be prepared in respect of a single parcel of land comprising 32 hectares, rendered: ‘it both improbable and unreasonable that the Department intended to require the Environmental Study to make an assessment of retail/commercial needs in Kingscliff and the Tweed Coast. Moreover, a ‘specification’ given for the purpose of s. 57(2) obviously needs to be specific and unambiguous (cf Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 at 167) …’ 56 The passage from Prineas referred to by his Honour related to an observation by Hutley JA that a statement in a letter from the then Department of Environmental [sic.] Planning that it was ‘considered that the Environmental Impact Statement should examine any hardwood as rain-forest logging in the defined area …’

was not a requirement, the essence of which was that there should be a direction and not a recommendation. His Honour read the statement in the Department’s letter separately as a recommendation.” Tobias JA did not explicitly endorse the reasoning of Bignold J, but in endorsing the finding of Bignold J at paragraph [76], Tobias JA impliedly agreed, or at best, did not disagree, with those comments of Bignold J. In relation to this issue, Basten JA said at paragraphs [181]–[182] as follows: “181 The effect of non-compliance with s. 57(2) was expressly reserved as a matter not necessary to be determined, by the trial judge: see Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 at [207]–[208]. Because the Respondent did not suggest that this Court should adopt a different approach, it is necessary to proceed on the basis that a failure to comply with a specification under s. 57(2) could lead to invalidity of the Plan. 182 It does not, however, follow that it is necessary for this Court to make a determination as to the precise scope of the specification notified by the Director-General, nor to determine on the facts, whether has been complied with. The complex factual considerations entered upon by Tobias JA demonstrate, to my mind, the unlikelihood that Parliament intended to make such compliance a jurisdictional requirement, which could only be authoritatively ruled upon by a court. Although ss 68 and 69 make provision for reporting by Council and consideration by the Director-General of whether directions under s. 117 have been taken into consideration, without reference to specifications under s. 57(2), there can be no doubt that the Director-General would have power to inquire and take into consideration compliance or non-compliance with a specification under s. 57(2) and, having notified the specification, would be mindful of the Council’s obligation to comply with it. Compliance will not necessarily be a matter involving a simple question of fact. Compliance may be

adequate or inadequate and may require matters of evaluation or judgment, taking into account the purpose for which the specification was notified. These are pre-eminently matters for consideration by the Director-General. If he or she reports to the Minister and the Minister makes the Plan under s. 70(1), in my view it should be assumed, absent evidence to the contrary, that the specification has been adequately complied with. Accordingly, this ground of challenge should be rejected.” The following propositions relating to environmental studies can be derived from Gales Holdings: • A specification by the Director-General for an environmental study is, in essence, a direction and not a recommendation (Gales Holdings and Prineas). • Where there is non-compliance with a specification for an environmental study, this is probably not a jurisdictional fact to be determined by the courts, but rather a simple question of fact for consideration by the Director-General and the Minister in deciding whether they make the LEP under s 70 (Basten JA in Gales Holdings).

¶11-050 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning In Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 (Capital Airport), Biscoe J in the NSWLEC considered a challenge to the validity of an LEP to rezone land for residential purposes. One of the grounds of challenge was that the local environmental study (LES) did not consider alternative uses for the land other than the rezoning proposal. Biscoe J held at paragraphs [58]–[63], as follows: “58 The applicant submits that Ground 1 is made out because where a draft LEP involves rezoning it is a mandatory requirement that a LES consider alternative uses other than that

being proposed. The applicant submits that the LES 2010 failed to do so. The applicant had difficulty in answering the question: how many alternative uses? The applicant appeared to accept that it did not have to be all possible uses. The submission is a partial gloss on s 57, which in my view is not supported by its text or purpose nor by the authorities that have construed it (Burns Philp and Devon). 59 Even before the 1985 amendments, Burns Philp and Devon did not hold that such a consideration was mandatory, even though alternative uses were considered on the facts in Devon. There was dicta in Devon, which the applicant cites, that the author of the LES in issue indicated that he considered other possible land uses: at 25. That was a summary of his evidence, not a decision that a LES necessarily has to consider other possible land uses. Nor was such a decision constituted by other dicta that a study which treats a specific proposal honestly and openly as one of the uses to be made possible by a re-zoning does not merely on that account offend the Burns Philp principle: at 26. On the contrary, McClelland CJ dismissed as ‘excessively purist’ a submission that the Council did not say as it should have that ‘we shall investigate whether there should be a shopping centre at Glendale’ rather than ‘we agree with the developer that there should be a shopping centre at Glendale’: at 14. Thus, the LES was entitled to focus on a particular proposed use, whether or not its conclusion was expressed as agreement with the developer. 60 For the applicant to succeed on Ground 1 it must establish, in the language of s 57(1), that the LES 2010 was not ‘an environmental study of the land to which the draft local environmental plan is intended to apply’. 61 I do not accept the Council’s primary submission that s 57(1) merely required a study of the land and that the study did not have to consider any use of the land. 62 Section 57(1) required not just a ‘study’ of the land but an ‘environmental’ study. The term ‘environmental study’ is not

defined. Its meaning is informed by the definition of ‘environment’, which includes ‘all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings’: s 4(1) EPA Act. Self-evidently, the purpose of an environmental study of land required by s 57(1) is to inform the Council and the public about the land to which a draft LEP may apply. Inform them of what? In my opinion the text of s 57(1), the purpose and context of the term ‘environmental study’ and the definition of ‘environment’ indicate that an environmental study may inform them of the environmental implications of making a particular draft LEP involving a particular rezoning. 63 A LES necessarily is prepared after a decision has been made to prepare a draft LEP which may affect rezoning. The LES may relate to a request by a person to the Council for a LEP which, through rezoning, enables the carrying out of development for a particular use of the land. Control is given to the Council to determine the matters that the LES is to address: s 57(4). Overriding power is given to the Director-General to specify the content of the LES: s 57(2). These factors indicate that the LES need not be an amorphous or generalised investigation into the environmental qualities of the land but a focussed examination of the environmental suitability of the land for the rezoning envisaged by the proposed draft LEP. The Council’s discretion to determine the matters the LES is to address and the DirectorGeneral’s discretion as to the contents of any specifications may be influenced by the particular use or uses under consideration.” Thus, in Capital Airport, it was held that an LES may be prepared to inform the decision-maker of the environmental implications of making an LEP involving a particular rezoning. It need not canvass all alternative uses, but may focus on a particular proposed use. The process for amending an EPI, including a deemed EPI, is provided for in s 74. An EPI may be amended in whole or part by a subsequent EPI of any type. Where the subsequent EPI is an LEP, s 74(2)(b) provided that s 57, 58, 59, 60, 61(a)–(d) and 65(1)(b) do not apply unless the Director-General of the Department directs to the contrary. After the 1985 Amendments, the provisions did not apply

unless the Director-General directed to the contrary under s 57 and 61. Hence, for amending LEPs, the provisions relating to environmental studies are automatically dispensed with, unless the Director-General directs to the contrary. Given that former planning instruments were declared deemed EPIs, then most new LEPs would be amending EPIs and hence, generally did not require an LES. The practical effect was that such environmental studies were considered superfluous and easily disposed with, or confined to site-specific evaluations of spot rezonings for amending LEPs. A theoretically sound scheme of survey and data on the one hand, and aims and objectives on the other hand, driving the formulation of draft LEPs buckled when faced with the practical realities of providing a transition from the former law to the EPA Act.

PREPARATION OF THE DRAFT LOCAL ENVIRONMENTAL PLAN AND CONSULTATION ¶12-010 Original 1979 process Following the public exhibition of the environmental study, the original Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provided a process for: • preparing the draft Local Environmental Plan (LEP) • consultation and obtaining information from public authorities, and • obtaining a certificate from the Director of the then Department of Environment and Planning to enable the draft LEP to be publicly exhibited in s 61 to 65. Section 61 of the original EPA Act required: • consideration by council of submissions on the environmental

study, and a decision whether the environmental study needed to be modified or supplemented before the preparation of the draft LEP commenced • consideration by council of public submissions on the aims, objectives, policies and strategies for the plan, and a determination by council on aims, objectives, policies and strategies to be adopted in the draft LEP (Once adopted, the council was required to give public notice of the adopted aims, objectives, policies and strategies.) • preparation of the draft LEP, having regard to the environmental study, and prepared in such a way as to achieve the adopted aims, objectives, policies and strategies, and • that the draft LEP and the aims, objectives, policies and strategies be “not substantially inconsistent” with State Environmental Planning Policies (SEPPs) or Regional Environmental Plans (REPs) or directions under s 117. Section 62 of the original EPA Act required council, in both the preparation of an environmental study and a draft LEP, to consult with such public authorities or other bodies (including the Commonwealth or other states) as the council considered may be affected by the draft LEP. This was in addition to consulting with the adjoining council where a draft LEP applied to land adjoining the boundary of the council’s area, or any other person as the council determined. Once the draft LEP had been prepared by the council, the original EPA Act provided for an external consistency and compliance check and an authorisation to proceed to public exhibition from the Department of Environment and Planning. This process required the council to submit a draft LEP to the Department under s 64 with a statement: • that the public involvement provisions in relation to the environmental study, and aims, objectives, policies and strategies had been complied with, and

• listing the SEPPs, REPs and s 117 directions which the council had reviewed in undertaking its internal consistency check with State and regional plans/directions, and, where there was an inconsistency between these and the draft plan, providing details and justification for any inconsistency. Following receipt of this information, the Director of the Department was required to be satisfied under s 65(1) that the public involvement provisions in process to date had been complied with. Thereafter, the Director was empowered to issue a certificate under s 65(1) and (2) that either: • the draft LEP was not inconsistent with any SEPP, REP or s 117 direction, or • where there was an inconsistency, the inconsistency was in the opinion of the Director “justified in the circumstances and that otherwise the draft plan is consistent with any such policies, plans or directions”. If a certificate was not issued, s 65(3) required the Director to return the draft plan to the council with reasons why the certificate was not issued and directions to amend the plan to enable a certificate to be issued, or other appropriate action. The council was required under s 65(4) to comply with any such direction. Thus, the role of the Director of the Department to issue a certificate under s 65 was narrow, confined to being satisfied that the public involvement provisions were complied with and certifying the draft plan was consistent with State and regional plans/directions, or to the extent to which they were not, stating that the inconsistency was justified in the circumstances. Early in the operation of the EPA Act, the Director of the Department issued delegations to the principal planning officer of most councils to enable that principal planning officer to issue s 65 certificates on behalf of the Director of the Department. In the amendments brought about by the Environmental Planning and Assessment (Amendment) Act, No 228 of 1985 (NSW) (1985

Amendments), these provisions were amended slightly, as follows: • The council’s responsibilities in preparing a draft LEP under s 61 were shortened to only require the council to have regard to the environmental study in preparing a draft LEP. The requirement to ensure the draft LEP was not substantially inconsistent with SEPPs, REPs and s 117 directions was removed. • When the council submitted the draft LEP to the Department under s 64, it was no longer required to provide details of any inconsistency with any Environmental Planning Instrument (EPI) or s 117 direction. • The provisions of s 65, in relation to the Director issuing a certificate, were amended to remove the limitation on the Director’s consideration as to whether the public involvement requirements for the preparation of a draft plan had been complied with and that either the draft plan was consistent with SEPPs, REPs and s 117 directions or, when it was not, that the inconsistency was justified. The new s 65(1) and (2) provided no limitation on the scope of the Director’s consideration when deciding whether to issue a s 65 certificate. They henceforth provided as follows: “65.(1) Where the Secretary receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66. (2) A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with section 66.” The process for preparation of a draft LEP thus provided a linear objective approach to the planning process as shown in Figure 12.1. Figure 12.1: Preparation of a draft Local Environmental Plan (original EPA Act Model)

¶12-020 Concept of consultation The requirement for consultation in s 62 required the council preparing an environmental study or a draft LEP to form an opinion as to which public authorities or bodies would or might be affected by a draft LEP and, having formed that opinion, to consult with them in the preparation of the environmental study or draft LEP. In addition, the council could consult with such other persons as it determined. There was one mandatory obligation to consult, and that was with the council of an adjoining Local Government Area (LGA), where a draft LEP applied to land adjoining the boundary between a council area and another council’s area. Once a council had decided to prepare a draft LEP which abutted the boundary, the concept of consultation had a specific legal meaning.

¶12-030 Leichhardt Municipal Council v Minister for Planning (two cases)

The meaning of “consult” and “consultation” has been considered in two cases dealing with the obligation of the then Director of the Department of Environment and Planning to ensure consultations with, among others, the relevant local council in the preparation of an environmental study and a draft REP under s 45 of the original EPA Act. These two cases are Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306 and Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78. Both of these cases are decisions of the NSW Court of Appeal relating to the consultation process in the preparation of the Greater Metropolitan REP No 1 (Redevelopment of Urban Land). The comparable provision in relation to the preparation of a draft LEP was s 62 in the original EPA Act. Clearly, both provisions are not exactly the same. The provisions relating to draft REPs specify more authority and bodies with whom consultations are mandatory, while those relating to draft LEPs provide the Council with greater discretion in determining the authority and bodies to be consulted. The provisions relating to draft REPs refer to “consultations”, while the provisions relating to draft LEPs refer to “consult”. However, the verb “consult” and the noun “consultation” do not indicate any different meaning is attached to either. The two Leichhardt v Minister cases dealt with a conflict between the State government and Leichhardt Council over proposals by the State government to rezone former industrial sites in Balmain to permit multi-unit housing and related development. One of the issues raised in the first case related to the meaning of consultations under s 45 of the original EPA Act, while the second case principally related to the meaning of consultation under s 45 and the powers of the Minister to make an EPI. In the first of these cases, the Court’s decision relating to consultation determined the outcome. Case No 1 — Leichhardt Municipal Council v Minister for Planning In the first case, Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 305, the NSW Court of Appeal considered an appeal in relation to the Council’s application to have two EPIs, SEPP

No 32 Urban Consolidation (Redevelopment of Urban Land) and Greater Metropolitan REP No 1 (Redevelopment of Urban Land), declared invalid. As part of these proceedings, the Council challenged whether the REP in question had complied with the provisions of s 45 in the original EPA Act in relation to the requirement for consultation. Sheller JA, with whom Priestley JA and Meagher JA agreed, said at p 335–338, as follows: “In the preparation of a draft regional environmental plan, the Director must ensure that consultations are held with, inter alia, each council whose area or part of whose area is situated in the region or part of the region to which that draft regional environmental plan applies (s. 45). Pearlman J found that the Director’s letter to the Council dated 18 October 1991, by which the Director purported to consult in accordance with the section, was sent on 21 October 1991. The letter concluded by saying that should the Council wish to offer any comments in the preparation of a draft regional environmental plan, the Director would appreciate receiving a response no later than 8 November 1991. The Council argues that the letter was inadequate, in particular, in not referring to the Minister’s intention by the proposed State environmental planning policy and regional environmental plan to constitute himself as consent authority and in failing to state what the substance and effect of the policy and plan were going to be. Further, the Council argues that insufficient time was given for a response, that when queries were raised they were not answered and that, in any event, there was no urgency about the matter. Her Honour held that the Director had carried out her obligations in connection with s. 45(a). … [p 336] … The language of s. 45 is striking. It does not provide that the Director ‘may consult’ with the bodies nominated or ‘shall consult’ with the bodies nominated: compare cl. 43(1) of the County of Cumberland Planning Scheme Ordinance held by Myers J in

Attorney-General v J Perry Constructions Pty Ltd (1961) 79 WN (NSW) 235 AT 239; 6 LGRA 385 at 393 to be directory only. Section 45 uses stronger language. The Director shall ensure that consultations are held with the bodies nominated. In the context of an Act which provided that the Minister of Town and Country Planning might make an order designating the site of a new town after ‘consultation’ with local authorities, Bucknill LJ in Rollo v Minister of Town and Country Planning [1948] 1 ALL ER 13 at 17 said: ‘A certain amount has been said as to what consultation means. In my view … it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice.’ This passage was quoted with apparent approval by the Privy Council in Re Union of the Benefices of Whippingham and East Cowes, St James; Derham v Church Commissioners for England [1954] AC 245 at 255. In Port Louis Corporation v AttorneyGeneral of Mauritius [1965] AC 1111, Lord Porter, giving the advice of the Privy Council (at 1124), referred to the English cases and, in the context of a local government ordinance which provided that the Governor in Council might by proclamation alter the boundaries of any town, district or village ‘after consultation with the local authority concerned’, said: ‘Helpful as the citations were, the nature and the object of consultation must be related to the circumstances which call for it. The situation to which s. 73(1) relates is clear. If there is a proposal to alter the boundaries of a town, or the boundaries of a district, or the boundaries of a village, such alteration must not be made until after consultation with the local authority concerned. It follows that the local authority must know what is proposed before they can be expected to give their views. This does not however involve that the local authority are entitled to demand assurances as to the probable form of the solutions of the problems that may be

likely to arise in the event of there being an alteration of boundaries. The local authority must be told what alterations of boundaries are proposed. They must be given a reasonable opportunity to state their views. … The requirement of consultation is never to be treated perfunctorily or as a mere formality.’ In TVW Enterprises v Duffy [No. 2] (1985) 7 FCR 172, Toohey J, sitting as a single judge in the Federal Court, referred to Port Louis Corporation v Attorney-General of Mauritius (at 178–179) and said: ‘Consultation is no empty term: … (the decision in Port Louis Corporation (at 1124)) and others, … make it clear that a responsibility to consult carries a responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account.’ It is true that s. 45 requires the consultations to be held during the process of preparation of the draft regional environmental plan which is followed by [p 337] public exhibition (s. 47), submissions (s. 48) and consideration of the submissions (s. 49). In the circumstances of this case, since the draft applied only to a part of the region which was in the area of the Council, the requirement was for consultation with the appellant Council and not other councils. The Director’s letter of 18 October 1991 said that: 1. The proposed regional environmental plan would complement a proposed State environmental planning policy. 2. The State environmental planning policy would set out clear principles relating to urban consolidation and criteria under which the State Government would take responsibility for rezoning sites of regional significance and dealing with development applications for major urban consolidation projects.

3. The proposed regional environmental plan would provide a mechanism for the re-zoning [sic] (add the word ‘of’) particular sites within the region to permit multi-unit housing and related development. 4. The re-zoning would be effected by the regional environmental plan through an amendment to the relevant local environmental planning instrument. 5. The Minister would only include proposals in the regional environmental plan which, in his opinion, met the criteria set out in the proposed State environmental planning policy. 6. There were five sites in the Council’s area which were under consideration for inclusion in the draft regional environmental plan as they had been assessed as being sites of significance for urban consolidation in the Greater Metropolitan Region. 7. It was anticipated that the regional environmental plan would be exhibited in November and the Council would then have a further opportunity to make submission. 8. Should the Council wish to offer any comments in the preparation of the draft regional environmental plan she would appreciate receiving a response no later than 8 November 1991. The latter spoke, in general terms, of principles and criteria, of the Government’s taking responsibility of the provision of a mechanism for re-zoning and of amendments to local environmental plans. It spoke of proposals which would meet criteria. But it did not state clearly or at all what those principles, criteria, mechanisms or amendments would be. In its reply of 30 October 1991 the Council invited the Director to attend at its next meeting on 19 November 1991 in order to clarify matters. The letter said:

‘You will appreciate that it is impossible to comment on the proposals for the draft regional environmental plan, without first sighting the criteria in the State policy. Council would also appreciate your advice as to what you intend to include in the regional environmental plan, particularly as it will relate to the Balmain sites.’ In my opinion consultation required that these questions be addressed either at a meeting or by correspondence. The particular point is made that the Director made no express reference to the Minister’s being the consent authority. The respondents argued that this was implicit in the statement that the State Government would take responsibility for re-zoning sites of regional significance and dealing with development applications for major urban consolidation projects. [p 338] The parliament must be taken to have chosen the word ‘consultation’ conscious of its use historically in this type of legislation. In this case proper consultation pursuant to s. 45 required that the Council know what was proposed before it was expected to give its views and that the Council be given a reasonable opportunity to state its views. I see nothing unreasonable in the questions raised by the Council. When they were not dealt with the process of consultation broke down. Accordingly, contrary to the requirements of s. 45, the Director did not ensure that consultations were held with the Council. This conclusion is confirmed by the short time given and by the answers in evidence given by the Director. Nor do I think it is sufficient answer to point to the fact that there had been an ongoing problem from the Minister’s point of view in achieving through the Council the overall object of urban consolidation on the Balmain sites. The Council was entitled to be told by the Minister or the Director, with some particularity, what the proposals referred to in the letter of 18 October 1991 were.” Thus, on the meaning of consultation, the NSW Court of Appeal held in Leichhardt v Minister that consultation had the following features:

• A requirement for consultation should not be treated perfunctorily or as a mere formality. • The person required to do the consultation must supply sufficient information to the person being consulted to enable them to provide advice. That information should include what is being proposed with some particularity. • There must be a sufficient opportunity given to the person being consulted to provide that advice. Sheller JA then considered the consequences of a failure to hold the required consultations. He held at p 338–340 as follows: “The respondents argued that the failure to hold consultations did not invalidate Greater Metropolitan Regional Environmental Plan No. 1. Prima facie the expression ‘shall’ in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it: per Lord Diplock in Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 at 690F. The legislature intends the provision to be observed: compare per Mahoney JA in Hatton v Beaumont [1977] 2 NSWLR 2111 at 226. But the presence of the word ‘shall’ does not necessarily mean that the statute calls for exact compliance. It was necessary to evaluate, in its legislative context, the importance to the attainment of the objects of the Act of exact, as distinct from substantial, compliance with the provision: Howard v Bodington (1877) 2 PD 203 at 211; Maxwell on Interpretation of Statutes, 12th ed, (1969) at 314–315 referred to by Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 255; 28 LGRA 50 at 59. The distinction is of no significance in the present case since, in my opinion, there was neither exact or substantial compliance. In this area of discourse statutory provisions are referred to as mandatory or directory, sometimes to differentiate between those requiring exact compliance and those requiring substantial compliance and sometimes to differentiate between those in which compliance, whether exact or substantial, is a pre-condition

to the validity of the grant which follows and those where it is not. Thus in some cases invalidity may flow from less than exact compliance. In others it may not flow from non-compliance. If the terms are to be used ‘mandatory’ best describes a provision which requires compliance either exact or substantial as a precondition of validity and ‘directory’ a provision which does not. Does non-compliance with s. 45 invalidate Greater Metropolitan Regional Environmental Plan No. 1? … In this case the public duty which has not been performed is not related to the grant to a citizen of a right but to the Minister of a power. It is a stage in a process which may and in this case did effect the Council and residents of a municipality. Nor is the consultation envisaged private. The duty to consult is not only a public one but one which the legislature itself recognises as of importance to the bodies to be consulted. That is the very reason for consultation. Further as I have indicated, the language here is unusual. It fortifies my conclusion that consultation in accordance with s. 45 is a precondition to the validity of a regional environmental plan. In the present case it did not take place with the consequence that Greater Metropolitan Regional Environmental Plan No. 1 was not validly made.” Consequences of a failure to hold consultations The NSW Court of Appeal held that the consequences of a failure to hold consultations under s 45 of the original EPA Act were as follows: • The requirement for consultation is required to be observed; observance is not discretionary. • To ascertain whether the statute requires exact compliance (a mandatory requirement) or substantial compliance (a directory requirement), it is necessary to consider the importance of exact as opposed to substantial compliance with a statutory provision towards the attainment of the objects of the legislation. Where statutes relate to the grant of a privilege or power, it is probable that the legislature requires rigorous compliance. Where statutes

relate to the performance of a duty, it is probable that they are directory only, particularly where injustice or inconvenience to others, who have no control over those exercising the duty, would occur if strict compliance was required. The requirement for consultation in the EPA Act relates to a grant of power to a public official. It is a precondition to the validity of an EPI, without which the EPI in question is not validly made. It is noted that the use of the terms “mandatory” and “directory” is no longer in favour. Case No 2 — Leichhardt Council v Minister for Planning The question of consultation was further visited by the NSW Court of Appeal in Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78. Following the first case, the Director undertook consultations with the Council on the terms of the Greater Metropolitan REP No 1. During this consultation process, the Director indicated to the Council that height controls for development would be included in the draft REP and that those building heights would be as agreed earlier between the Director and the Council. Priestly JA, with whom Sheller JA agreed, held that: • The consultation process under s 45 of the original EPA Act came to an end before the draft REP was publicly exhibited under s 45 (at 81–82). The requirement to consult is not an ongoing one. • The obligation under s 45 of the original EPA Act was to consult. It was not an obligation to reach an agreement (at 83). The fact that the Council may be unhappy with the outcome of the consultation process does not mean the consultation process has not been completed. Following the public exhibition of the draft REP and the consideration of public submissions, the Minister proceeded to formally make the Greater Metropolitan REP No 1. However, while the draft REP publicly exhibited contained specific height controls, the REP as made by the Minister had no height restrictions at all. Priestly JA held the REP was invalid on the grounds that the REP as made was so different from

that publicly exhibited that in important respects it could be considered a quite different plan. This ground was unrelated to the consultation issue and will be considered later. Cole JA dissented from the majority in relation to this finding, but in relation to the Council’s challenge based on the consultation process, his reasoning was similar to that advanced by the majority.

¶12-040 Consultation provisions amended Following the two Leichhardt v Minister cases, the consultation provisions in s 45 of the original EPA Act were amended by the Environmental Planning and Assessment (Amendment) Act 1994 No 29 (NSW) (1994 Amendments) to effectively overturn the decision in the first Leichhardt v Minister case, and to require only consultation as required by the amended s 45 and identify what information is to be provided under s 45. This removed the requirement for the proposal (the subject of the consultation) to be outlined with a level of particularity, and finally to outline the time limits and completion point of the consultation process. In the Environmental Planning and Assessment Amendment Act 1996 No 40 (NSW) (1996 Amendments), the consultation provisions were further amended to delete the word “consultation” and replace it with “notify” and “notification”. The 1996 Amendments to s 45 authorised the information to be provided in a piecemeal fashion and reduced the period of comment to 28 days from the 40 days provided in the 1994 Amendments. While the decision in Leichhardt v Minister was largely overturned by the successive amendments in 1994 and 1996 and reduced to a notification process in relation to the consultation requirements for the preparation of a draft REP, corresponding changes were not made to the consultation requirements for a draft LEP in s 62 of the original EPA Act which remained unaltered up until the introduction of the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) (2008 Amendments). Thus, the principles in Leichhardt v Minister and Leichhardt v Minister

[No 2] on the meaning of consultation remained applicable to draft LEPs until the 2008 Amendments. The issues relating to consultation are further outlined in papers by Jergeson1 and Preston.2 Footnotes 1

Jergeson, AD, 1978, “The Legal Requirements of Consultation”, Public Law, p 290–315.

2

Hon Justice Brian J Preston, 26 June 2008. Consultation: One Aspect of Procedural Propriety in Administration Decision-Making, paper presented to the Australian Institute of Administrative Law 2008 Seminar Series: “Administrative Law: Musings from the Bench”, Sydney.

¶12-050 John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning In John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213 (John Brown Lenton), Cowdroy J heard a challenge to the validity of draft Amendment No 25 to the Blue Mountains LEP 1991. One of the grounds of the challenge related to the consultation requirements of s 62. The draft LEP related to land adjoining the boundary with the Hawkesbury LGA, albeit for only approximately 500 metres. Section 62(b) required consultation with an adjoining council where a draft LEP applied to land adjoining the boundary with that council. No such consultation occurred prior to the issue of the s 65 certificate but it did occur afterwards. The issues in the case were: • When should consultation occur? • If it occurred in breach of the EPA Act, what were the consequences?

Cowdroy J held at paragraphs [18]–[26] as follows: “18. Section 62 provides that in the preparation of an environmental study or a draft local environmental study or a draft local environmental plan the council ‘shall consult’ with various bodies. The words ‘in the preparation of’ and the word ‘consult’ require the council to undertake the process of consultation at some stage in the course of the preparation of the draft plan. The council has argued that it is immaterial whether the consultation was effected before or after the issue of the s. 65 certificate. Whilst s. 62 does not state whether such consultation is to take place before or after any application for a certificate pursuant to s. 65 of the Act, s. 64 makes it clear that the process of consultation is to be conducted prior to any such application. This construction of s. 62 is supported by the decision of the New South Wales Court of Appeal in Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc. (1996) 98 LGRA 335 (see Priestley JA at 347). 19. By virtue of Pt 2 s. 9 of the Interpretation Act 1987, ‘shall’ is prima facie mandatory, although it must be construed in the context of the relevant legislation (Hatton v Beaumont (1978) 52 ALJR 589 at 591–592; Noroton Holdings Pty Ltd at 342). 20. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 their Honours McHugh, Gummow, Kirby and Hayne JJ at 388 stated: ‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.’ Their Honours at 390 continued: ‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to ‘the language

of the relevant provision and the scope and object of the whole statute.’ (Tasker v Fullwood [1978] 1 NSWLR 20 at 24).’ 21. In relation to s. 62(b) the words ‘shall consult’ make it apparent that council is under an obligation to provide sufficient information to enable other councils to consider the proposal and express their opinions so that they may be taken into account. The judgments of Rollo v Minister of Town Planning [1948] 1 All ER 13 at 17; Port Louis Corporation v Attorney General of Mauritius [1965] AC 1111 at 1124; TVW Enterprises v Duffy [No. 2] (1985) 7 FCR 172 at 178–179, support the concept that a requirement for consultation imposes a duty. (See also Leichhardt Council v Minister for Planning (1992) 78 LGERA 306 and Edmondson and Anor v Warringah Council and Anor (NSWLEC unreported 40059 of 1998, 15 September 1999), Talbot J at 11). 22. The wording of s. 62(a) and s. 62(c) indicates that the council has a degree of flexibility in relation to those public authorities, bodies or other persons they consult and whether to consult with these parties at all. No such flexibility is apparent in s. 62(b). If council boundaries adjoin, the obligation to consult arises and the observation of Lord Morris of Borth-y-Guest in delivering the judgment of the Privy Council in Port Louis at 1124 has application, namely: ‘The requirement of consultation is never to be treated perfunctorily or as a mere formality.’ 23. In Ku-ring-gai Municipal Council v Minister for Planning and Environment and Anor (1982) 49 LGRA 223, Cripps J at 232 observed that s. 60, s. 61 and s. 62 ‘imposed obligations on councils to consider submissions and to consult with various bodies’. Recently the New South Wales Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, (1999) 46 NSWLR 78 determined that the consultation process required by Pt 3 of the Act constituted one of the essential elements of the statutory scheme for procedural fairness. Their Honours agreed that it is the intention of the legislature that this statutory scheme

for procedural fairness be observed in making of a local environment plan. (Spigelman CJ at 90; Meagher JA at 113–114; Powell JA at 115). Consistent with the approach to the interpretation of the High Court of Australia in Project Blue Sky it can be concluded that if a council has not complied with the requirement of s. 62 an essential requirement for the making of a valid LEP has not been fulfilled. 24. The importance of the consultation process is further highlighted by the fact that s. 64 of the Act requires evidence of compliance with s. 62 to be supplied to the Director of DUAP at the time of submission of a draft LEP. 25. Council did not consult with the adjoining councils in relation to the draft LEP until after a report was submitted to DUAP under s. 64. It is puzzling that DUAP did not query the absence of any statement required by s. 64. There is no evidence to suggest that the council’s failure to consult was ever noticed or considered by DUAP. 26. Since the consultation required by s. 62 did not occur, and as a consequence no statement envisaged by s. 64 was brought into existence, there has been a breach of s. 64. In view of the findings made concerning the effect of the breach of s. 62, it is unnecessary to decide whether a breach of s. 64 is by itself, sufficient to render invalid the draft LEP.” The decision in John Brown Lenton highlighted the continuing applicability of the principles in Leichhardt v Minister relating to consultation in the preparation of a draft LEP and emphasised that the process of consultation under s 62 is required to be undertaken prior to the issue of a s 65 certificate.

¶12-060 Belongil Progress Association Inc v Byron Shire Council In Belongil Progress Association Inc v Byron Shire Council [1999] NSWLEC 271, Cowdroy J heard a challenge to the validity of an amendment to the Byron LEP. One of the grounds of the challenge

was a breach of s 62 requiring the Council to consult with such public authorities as, in the opinion of the Council, will or may be affected by the draft LEP. In this instance, the LEP sought to prohibit development for certain purposes in urban coastal lands. The Council did not consult the then Department of Land and Water Conservation (DLWC), which was the registered proprietor of land affected by the amendments. Further, DLWC had significant responsibilities in the area of coastal protection. The Court found that DLWC had a “vital interest” in the land — the subject of the LEP. The same applied to the Department of Urban Affairs and Planning (DUAP), which also owned land affected by the LEP. Such land had been acquired under the Coastal Land Acquisition Scheme. DUAP was not consulted by the Council. Cowdroy J held at paragraph [37]: “37. Section 62 requires consultation with statutory authorities only if council forms the view that they ‘will or may be affected’ by the draft local environmental plan. Since DLWC has a pivotal role in the administration of coastal lands the conclusion can readily be drawn that it ‘will or may be affected’ (s. 62(a)) by the draft plan. The same conclusion can be drawn in relation to DUAP since they owned land affected by the LEP. In these circumstances, council’s decision not to consult with these authorities was unreasonable in the Wednesbury sense. Accordingly there was a breach of s. 62(a) of the Act.” However, Cowdroy J held that he would not grant injunctive relief on this ground as a matter of discretion as DLWC had withdrawn its objections and DUAP had made no complaint. However, for other reasons, Cowdroy J made a declaration that the LEP was invalid.

¶12-070 Smith v Wyong Shire Council In Smith v Wyong Shire Council [2005] NSWCA 322 (Smith v Wyong), the NSW Court of Appeal considered a challenge to the validity of Amendment No 118 to the Wyong LEP 1991. This LEP rezoned land at Long Jetty that was zoned 2(d) High Density Residential Zone, with

no controls in relation to height or density. The Council, in 1998, resolved to prepare a new draft LEP to introduce height and density controls for the 2(d) zone at the entrance, and a s 65 certificate was issued in April 2000, noting that the draft LEP was not inconsistent with any s 117 direction. The draft LEP was publicly exhibited from April to June 2000. The only document exhibited was the draft LEP. No s 117 directions were exhibited. There was a direction, G9 — Residential Zones, which provided that draft LEPs shall not contain provisions that will result in a reduction in the permissible residential density on land and shall not increase existing standards relating to residential flat development. In May 2000, no doubt partly in response to the exhibited draft LEP, the applicant lodged a development application (DA) with the Council to construct a 14-storey residential flat building. It exceeded the 12metre height limit proposed in the draft LEP. In August 2000, the Council submitted the draft LEP to the DirectorGeneral (DG) under s 68(4), and the Minister made the amending LEP in December 2000. The effect of course would be to prohibit the applicant’s DA. The applicant contended that there was no power for the Minister to make an LEP which was inconsistent with a s 117 direction. Despite the 1985 Amendments in relation to s 117 directions, Tobias JA (with whom Spigelman CJ and Sheller JA agreed) said at paragraphs [124] and [135]: “124 … a draft local environmental plan which is prepared by a council pursuant to s. 54(5) and submitted to the Director-General pursuant to s. 64 is required to conform with such a direction. It is then a matter for the Director-General, possibly on the urgings of the relevant council, to require the draft local environmental plan to be amended in accordance with a condition imposed pursuant to s. 65(2) before it is publicly exhibited. However, as the draft plan in the present case was prepared by the Council in a manner inconsistent with Direction G9, it follows that it was not a draft

local environmental plan to which s. 66(1)(b)(i) applied, with the consequence that the public exhibition process was infected by the exhibition of an invalidly prepared plan. … 135 I would therefore conclude that the preparation by the Council of the draft plan which it purported to exhibit pursuant to s. 66(1)(b)(i) of the Act was beyond power. This being so, it follows that the amending LEP is invalid either in whole or in part. I shall deal with the question of severability below. Furthermore, in my opinion, s. 66(1)(b)(i) must be construed as requiring the exhibition of a draft local environmental plan which the Council was empowered to prepare. It follows that the exhibition of the draft plan by the Council in the present case was a nullity in the sense that it was not an exhibition authorised by s. 66(1)(b)(i). This point is not a strict application of Project Blue Sky which is directed to whether an act which is performed in breach of a legislative provision should be regarded as invalid and of no effect. The present defect is more fundamental than that although I appreciate that it involved a breach of s. 117(3). It also involved an act which was not an exercise of the power at all.” Having found a breach of law, Tobias JA then considered the consequences of that breach, and held that as a result of the breach the exhibition of the draft LEP was a nullity and the resulting LEP was invalid in relation to the affected landowners (see paragraphs [135]– [146]). While Spigelman CJ (at paragraphs [4]–[5] and Sheller JA at paragraph [65]) agreed with Tobias JA that the Council had prepared the draft LEP in breach of s 117 and s 54(5), both disagreed with Tobias JA in holding that the consequences of the breach resulted in invalidity of the LEP. As Spigelman CJ said at paragraphs [6]–[7], [12]–[16], [22]–[24], [39], [45]–[46] (with Sheller JA agreeing at paragraph [65]): “6 The correct approach to determining the issue posed for the Court is authoritatively established by the majority joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998)

194 CLR 355 at [93]: ‘[93] [The] … test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’ 7 The application of this test received elaboration in the joint judgment at [91]: ‘[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.’ … 12 The first indication of the significance attached to noncompliance with a s. 117 Direction is found in the use of the words ‘shall comply’ in s. 117(3). Furthermore, s. 9(2) of the Interpretation Act 1987 provides: ‘9(2) In any Act or instrument, the word ‘shall’, if used to impose a duty, indicates that the duty must be performed.’ 13 Like other provisions of the Interpretation Act, s. 9(2) operates subject to any contrary intention. Such a contrary intention may be discerned from the scope and purpose of the legislative scheme and the place of the particular provision that has been contravened in that scheme. Nevertheless, the use of mandatory language such as ‘shall’ is an indicator supporting the Appellant’s

contentions in these proceedings. 14 When determining the significance to be attributed to a failure to observe a s 117 Direction, it is pertinent to note one of the matters identified as an ‘object’ of the Act: ‘5(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State.’ 15 Section 117 serves this object by ensuring that, where a Minister has decided that a ‘principle’ should be applied by all local councils in order to serve a broader policy objective, councils are obliged to comply with that decision. The possibility that conduct in breach will result in invalidity helps to ensure that the division of responsibility envisaged by s. 117 will be maintained. I will return to this consideration below. 16 These factors are all indicators that Parliament intended that conduct in breach would be invalid. … 22 Section 117 contains similarly amorphous terminology. A Direction under s. 117(2)(a) extends to ‘principles’. However, the breadth of the concept of ‘principles’ is emphasised in s. 117(2)(b) which refers to ‘provisions which … give effect to such principles’ and, going beyond the terminology of the previous paragraph, extends to ‘or such aims, objectives or policies’. To use the terminology from [95] of Project Blue Sky, such matters do not have a ‘rule-like quality which can be easily identified and applied’. What constitutes ‘compliance’ with a ‘principle’ is a matter on which there is, to again use the terminology of the joint judgment, ‘room for widely differing opinions’. Furthermore, the identification of what ‘provisions … will achieve or give effect’ to a principle, etc, is also inherently contestable. 23 The scope for differences of opinion is manifest in the detail of the wide ranging General Conditions issued under s. 117. Some use terminology such as ‘shall not substantially’ alter or reduce (e.g. Direction G3(i), G10(i)). Other Directions require a council to

‘have regard to’ certain documents (e.g. Direction G2). What constitutes compliance is not necessarily obvious. This is a strong indication against invalidity being an intended consequence of a breach. 24 After making observations about the content of treaty obligations, being the specific matter in issue in the case, the joint judgment in Project Blue Sky went on to state: ‘[97] Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.’ … 39 It is, in my opinion, unlikely that Parliament intended that a failure to comply with a Direction results in invalidity, when the person who made the Direction is in a position to determine the fate of the non-complying conduct. … 45 The purpose of the scheme of s. 117 Directions is to ensure that the policies reflected in the ‘principles’ contained in a Direction, or in the ‘provisions’ to give effect to such ‘principles, aims, objectives or policies’, are in fact implemented by councils, at the stage before public exhibition. I do not doubt that councils will, generally, comply with Directions. I do not, given the relationship in this State between the Minister and councils, believe that the threat of invalidating a council LEP is required to ensure that councils are deterred from non-compliance. To use McHugh JA’s formulation from Woods v Bate, this is not a case in which ‘the purpose of a provision can only be achieved by invalidating the result’. 46 Weighing these conflicting considerations, I have come to the conclusion that it was not a purpose of the Act that noncompliance with a s. 117 Direction should result in invalidity. The factors suggesting it was not preponderate to a significant degree.”

The following proposition can be derived from Smith v Wyong. A draft LEP which has been prepared inconsistent with a s 117 direction is in breach of the EPA Act. However, the consequence of a non-compliance with a s 117 direction does not result in the LEP being invalid in accordance with Project Blue Sky.

¶12-080 Falkiner v Director-General of Planning NSW In Falkiner v Director-General of Planning NSW [2002] NSWLEC 159 (Falkiner v Director-General of Planning), Pain J in the Land and Environment Court of NSW (NSWLEC) considered whether the DG could issue a s 65 certificate conditionally and whether those conditions could relate to general planning matters rather than specific amendments to the draft LEP under consideration. Pain J held at paragraphs [42] and [43]: “42. Furthermore, I agree with the Respondents’ submission that the DG is able to impose ‘conditions’ or, more accurately, requirements on a council in relation to general planning matters, as has occurred in this case, at the same time as an LEP is being amended. That is, the DG can impose requirements other than conditions requiring the plan to be amended in a specified manner before public exhibition. Provided the DG is acting within the scope of matters under the EP&A Act this is within the power available to the DG under the Act. 43. … The DG does have power to issue a certificate under s. 65(1) subject to conditions other than under s. 65(2) provided these are within the scope and purposes of the EP&A Act.” Further, Pain J held that the DG may subsequently amend the conditions imposed on the s 65 certificate. Pain J held at paragraph [48]: “… I consider the DG has broad powers under the EP&A Act, and these powers can include the modification of a condition(s), or more accurately in this case requirements, validly imposed under Pt 3. The conditions in question are not s. 65(2) conditions and I have held that they are lawful. Further, the DG can act unilaterally

in amending her requirements, it is not necessary that the Council resubmit the LEP and seek a variation to the conditions as the Applicant argued.” In this case, the DG issued a new s 65 certificate. It was argued that the DG having once issued a s 65 certificate was functus officio. Pain J held at paragraphs [58]–[61]: “58. (ii) The Applicant would only have the functus officio argument available to it if it argued that the issue of the certificate on 3 October 2001 exhausted the power of the DG under s 65(1) so that it was not available to be exercised again. The DG argued that the s. 65 power may be exercised from time to time, relying on s 48(1) of the Interpretation Act 1987, Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598. There is nothing in the EP&A Act that is inconsistent with this proposition. … 60. … I consider the s 65 power can be exercised from time to time, consistent with the Interpretation Act 1987. It is a well established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute. In my view, the power of the DG or her delegate to issue a s. 65 certificate is not constrained in the statute so as to be irrevocable. As French J states in Sloane at 443: ‘Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken.’

61. I also agree with the Respondents’ argument … that the scheme of Pt 3 of the EP&A Act allows for steps to be carried out on more than one occasion provided the sequence overall is in accordance with Pt 3. Further, a factor supporting this conclusion is that the statutory decision to issue a s 65 certificate does not give rise to appeal rights by any party such that unilateral variation of the decision would deprive them of their rights.” The following propositions can be derived from Falkiner v DirectorGeneral of Planning: • In issuing a s 65 certificate, the DG may impose requirements on a council in relation to general planning matters beyond requirements to amend the draft LEP prior to public exhibition. • The DG may reconsider and redetermine a s 65 certificate already given and is not functus officio, as Pt 3 of the EPA Act permits steps to be carried out on more than one occasion provided the overall sequence complies with Pt 3.

¶12-090 Friends of Turramurra Inc v Minister for Planning In Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 (Friends of Turramurra), Craig J in the NSWLEC considered the effect of the failure to properly issue a s 65 certificate on an LEP. Applying the principles in Project Blue Sky, Craig J held at paragraph [66] as follows: “66 In light of these provisions of the EPA Act, I conclude that, on the proper construction of Div 4 of Pt 3, it was not a legislative purpose to invalidate a local environmental plan where no valid s 65 certificate has issued in respect of that plan in draft but where otherwise the plan has been made conformably with the provisions of that Division. Such a conclusion is supported by the reasons of Spigelman CJ (Sheller JA agreeing) in Smith v Wyong.” Thus, following Friends of Turramurra, failure to issue a valid s 65

certificate will not of itself invalidate an LEP.

PUBLIC EXHIBITION OF THE DRAFT LOCAL ENVIRONMENTAL PLAN ¶13-010 Public exhibition of a draft Local Environmental Plan Under the initial Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provisions, following the preparation of a draft Local Environmental Plan (LEP) by a council and submission of the draft LEP to the Department of Planning (s 64) in order to obtain a certificate from the Director of the Department of Planning (s 65), the original EPA Act required the public exhibition of the draft LEP. The key features to note regarding the process of public exhibition and public submissions for a draft LEP are as follows: • A pre-condition for the public exhibition of a draft LEP was the receipt of a s 65 certificate from the Director. • A council was required to give public notice of where, when and during what times the draft LEP could be inspected by the public. • It specified the material which must be available, including the draft LEP itself, any State Environmental Planning Policies (SEPPs), Regional Environmental Plans (REPs) or s 117 directions applying to the subject land and the statement that such SEPPs, REPs or s 117 directions governed the content of the draft LEP, and advised that submissions needed to have regard to this. This statement was designed to ensure that persons proposing to make a submission on a draft LEP were aware of the potentially overriding nature of a higher order plan (SEPP or REP) or a s 117 direction by the Minister, and hence influenced such persons to recognise this in any submission. • In the notice, a council needed to specify the period during which public submissions may be made to the council, provided that

such period was not less than the minimum exhibition period. • The council had an option to publicly exhibit any other explanatory information relating to the draft LEP. • A minimum period of public exhibition could be prescribed by regulation. The Environmental Planning and Assessment Regulation 1980 (EPA Regulation 1980) did prescribe a minimum period. The period prescribed for exhibition of a draft LEP was originally 14 days under cl 10 of the EPA Regulation 1980.1 This exhibition period was increased to at least 28 days by cl 12 of the Environmental Planning and Assessment Regulation 1994 No 415. This 28-day minimum period was maintained by cl 13 of the Environmental Planning and Assessment Regulation 2000 No 557. • Where a council publicly exhibited a draft LEP outside the process specified in s 66, it was required to advise the public that such exhibition was not the statutory exhibition required under the EPA Act. This provision recognised that, in complex matters, a council may wish to conduct a public exhibition during the course of preparation of a draft LEP, such as prior to the issue of a s 65 certificate. However, it sought to ensure the public were not confused that such an exhibition process was in fact the statutory exhibition of a draft LEP required by s 66. • Any person, including unincorporated associations and persons living either outside the area, the subject of the draft LEP, or indeed outside the council’s Local Government Area (LGA), was entitled to make a submission to the council on the draft LEP within the period notified as to when submissions could be made. The provisions of s 66, as originally enacted, were amended by the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments) and the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments) to the EPA Act. Both of these amendments were largely either refinements or amendments

consequential upon other changes to the EPA Act. The changes made by the 1985 Amendments (NSW) amended s 66(1) to require compliance with a condition subject to which a s 65 certificate was granted plus changes consequent upon the removal of a separate stage of exhibition of an environmental study prior to the preparation of a draft LEP and the introduction of a concurrent exhibition of an environmental study and draft LEP.2 The changes made by the 2005 Amendments (NSW) were consequential upon the changes to the EPA Act to replace Model Provisions by a Standard Instrument.3 Footnotes 1

NSW Government, 29 August 1980, Supplement to the NSW Government Gazette, No 120, p 4455 ff.

2

See Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW), s 5 and Sch 3[14].

3

See Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW), s 3 and Sch 2[10].

¶13-020 Kent v Parramatta City Council — noncompliance with exhibition requirements The exhibition provisions relating to a draft LEP were considered by Cripps J in the Land and Environment Court of NSW (NSWLEC) in Kent v Parramatta City Council (1984) 51 LGRA 399 (Kent). In these proceedings, a declaration was sought that LEP No 43 of the City of Parramatta was void due to non-compliance with the exhibition requirements. The draft LEP sought to rezone land zoned Special Uses — School to permit the Housing Commission to erect residential accommodation on land at Dundas.

The Council placed an advertisement in a local newspaper announcing that it had prepared a draft LEP for exhibition under s 66 of the EPA Act. The advertisement first appeared on 30 June 1982 and stated that the draft plan was available for a period of 14 days from 7 July 1982. Persons were invited to make submissions during this period. On 14 July 1982, the advertisement was repeated and it stated that the exhibition ended on 20 July 1982 (although the plan actually remained on exhibition until 3 August 1982). Following receipt of submissions, including one from a residents’ action group (one member of whom was Mr Kent), the Minister made the LEP in June 1983 and thereafter, proceedings were instituted claiming breach of s 66 of the EPA Act and cl 7 of the EPA Regulation 1980. The breaches alleged were: • The draft LEP was not exhibited for the prescribed period of 14 days as two weekends occurred during the exhibition period. As a result, the draft LEP was only on display for 10 days. • The first advertisement did not specify the precise dates on which the draft LEP could be inspected, but simply said 14 days from 7 July 1982. This same alleged defect applied to the period within which public submissions could be made. • The second advertisement was in breach of the regulations as it was published more than seven days prior to the conclusion of the period for submissions. Cripps J rejected all of these submissions. He held at p 402: “The section does not require the Council to exhibit publicly the draft local environmental plan on fourteen working days. What is required is exhibition of the plan during a period of fourteen days.” Hence, by counting weekends, there was full compliance by the Council with the specified periods. Cripps J held at p 403–404: “Because of the above conclusions, it is unnecessary for me to

determine whether the statutory enactments are to be classified, on the one hand as mandatory or imperative, or on the other hand as directory, or to determine whether, on the assumption that the statutory enactment required public notification for fourteen working days, there was sufficient compliance with the statutory requirements. In Scurr v Brisbane City Council (1973) 133 CLR 242 at 255, 256; 28 LGRA 50 Stephen J., in a judgment concurred in by all members of the court, said: ‘I doubt, however, whether, in the present case, a distinction of any substance exits between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyne Regis Corporation [1962] 1 QB 718 provides a modern instance of this. When the requirement is that ‘particulars of the application’ should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation. The situation is quite different from that encountered when some formality of time or procedure has been neglected or when some question of waiver arises, as it did in Edward Ramia Ltd v African Woods Ltd [1960] 1 WLR 86. That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to substantial compliance with the statute. I have found the particulars in

the present instance to be inadequate and, whether as the result of a mandatory interpretation or a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance with the relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated.’ In the instant case, the draft local environmental plan remained on exhibition until 3 August 1982 and the council, in fact, accepted some submissions from the public after 20 July 1982. The legislative purpose to which the relevant enactments are directed is to inform members of the public of planning proposals and to encourage public participation in the plan-making process. I have already expressed the opinion that there was strict compliance with the legislative enactment. I am, however, prepared to [p 404] express the view that, in the circumstances of this case, and on the assumption that the legislation required exhibition for a period of fourteen working days, the council substantially complied with the legislative requirements.” Thus, Cripps J held as follows: • In relation to the requirements for public exhibition of a draft LEP, he adopted the comments of the High Court in Scurr v Brisbane City Council (1973) 133 CLR 242 (Scurr) that it is doubtful whether there is a distinction of any substance between strict or substantial compliance with those exhibition and notice requirements. • The period of exhibition for a draft LEP is the required period of days, not working days. • Even if he assumed the draft LEP should have been exhibited for 14 working days, he considered the Council had substantially complied with the legislative requirements.

The following issue addressed by the courts (in relation to the public notice and exhibition process for a draft LEP) related to how the notice described the draft LEP.

¶13-030 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council — notification was “defective, inadequate, insufficient and misleading” In Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 (Canterbury), a decision of Stein J in the NSWLEC, the validity of the Canterbury LEP No 111 was challenged on the basis that the notification under s 66(1) (a) of the EPA Act was defective, inadequate, insufficient and misleading, such that the notice was not a notice under the Act. Further, it was alleged that the draft LEP failed to comply with s 66(1) (d) of the EPA Act in that the exhibition was misleading. In this case, the Council had advertised in a local newspaper and notified residents of the exhibition of a draft LEP. The notice and advertisement stated: “The Council has prepared a draft local environmental plan for Wiley Park. The purpose of the plan is to allow the establishment of a restaurant facility in Wiley Park”. Wiley Park had been conveyed to the Council in trust as a public park and was zoned Open Space. The Council wished to accept a proposal to lease part of the park to enable the establishment of a steakhouse restaurant and to render inoperative the declaration of trust which prevented the proposal. However, the actual draft LEP proposed to permit development on Wiley Park in accordance with cl 22 of the LEP and to provide that the operation of any declaration of trust did not apply to the development. The reference to cl 22 of the LEP referred to the zoning tables, and included advertising structures, roads, agriculture, forestry, caravan parks, drainage or utility installations, racecourses, showgrounds and sportsgrounds. There was no reference to a restaurant as it appears that the Council considered such a use was already permissible, but the Council needed to suspend the declaration of trust.

Stein J held at p 320–322 as follows: “It may be seen from the foregoing that the notice confined itself to permitting a restaurant in Wiley Park while the draft LEP went further and purported (in somewhat convoluted language) to enable development to be carried out in accordance with the Canterbury Planning Scheme Ordinance as in force at some future undefined point of time when some undefined application for development is made. Importantly, the draft LEP purported to cancel the restriction in the declaration of trust that the park was conveyed to the Council ‘ever upon trust for and to be used by the residents … as a Public Park or Recreation Ground’. Section 66(1)(a) of the Environmental Planning and Assessment Act requires the Council to give public notice of a draft local environmental plan. The importance of giving public notice of a planning proposal and the public participation in the process was stressed by the High Court in Scurr v Brisbane City Council (1973) 133 CLR 242, see particularly Stephen J (at 255, 257– 258). While the public notice may be ‘in a form and manner determined by the Council’, it must not relevantly be misleading: see Monaro Acclimatisation Society v The Minister (Land and Environment Court, 2 March 1989, unreported). If it is so misleading, then its purpose (and the purpose of the legislation) will be defeated. This is because it may prejudice the proper consideration of the draft LEP by the Council. The Council, even if it accidentally misleads members of the public as to the contents of a proposed plan, may be deprived of the benefit of the presentation of objectors’ views. Put another way, a defective or misleading notice may take away from the public the right to object to a plan and their opportunity to participate in the process. Furthermore, those who do actually respond to the notice may have misconceived their objectives or their submissions may be incomplete. In my opinion the notice was relevantly misleading by its reference to the restaurant. In fact, the draft LEP went further than that and had the effect of permitting a broader range of

development than merely a restaurant and also development by reference to the zoning tables at some possible unspecified future date. Additionally, and perhaps more importantly, the notice failed to mention the fact that the draft LEP on exhibition was to operate to cancel or restrict the operation of the trust contained in the conveyance of Wiley Park to the Council which stated that it was to be forever used as a public park. Any reasonable member of the public examining the notice would know no more than that the Council was to exhibit a draft plan to permit a restaurant to be established in Wiley Park. Nothing more and nothing less. In my opinion the notice is defective and the defect is such as to lead to its invalidity, no question arising in my view as to mandatory or discretionary requirements. … [p 321] In any event, reading the ‘Plain English version’ alongside the draft LEP, a reasonable person would likely be mislead into believing that the only purpose of the draft plan was to suspend the declaration of trust to establish a restaurant because of some doubt raised as to the meaning of the trust. In my opinion the exhibition must fail because of the misleading additional information exhibited. Far from enabling members of the public to understand the plan on exhibition it would only seek to confuse them about the provisions of the plan bearing in mind its relative unintelligibility to the average reasonable person. In my opinion, both the notice and the exhibition fail to comply with the requirements of the Environmental Planning and Assessment Act because of their misleading nature. They infect the process of the plan-making rendering the plan invalid. The goal of public participation in the plan-making process under Pt III of the Environmental Planning and Assessment Act (and its stated object as per s 5(c)) has been vitiated by the misleading [p 322]

nature of the notice and exhibition. Members of the public may have been deprived of the opportunity to present their views to the Council and have them taken into account in the process. The purpose of the notice and exhibition has therefore failed in its intent to enable the Council to be furnished with the views of interested parties on the draft plan — not their views on the contents of the notice or, for that matter, their views on the contents of the ‘Plain English version’. As I said in the Monaro Acclimatisation case — ‘the notice must refer to the draft plan.’ Here the notice is misleading in its reference to the draft plan. I also stated in Monaro that the requirement to give public notice of a plan is a mandatory requirement wherein strict compliance is necessary. I adhere to these opinions: see also Asquith v The Minister (Cripps J, 24 October 1989, unreported, at 12). Accordingly, I make a declaration that the Canterbury Local Environmental Plan No. 111 published in the New South Wales Government Gazette on 15 February 1991 is invalid.” The key aspects of Stein J’s decision in Canterbury are as follows: • A notice of a draft LEP must not relevantly be misleading, as a misleading notice will defeat the purposes of the EPA Act and deprive the public of their opportunity to participate in the process. • A notice would be misleading if the draft LEP permitted a broader range of developments to those disclosed in the notice or if it failed to disclose a material matter, such as the fact that it sought to cancel or restrict the operation of a trust. • A misleading notice is defective and the defect leads to invalidity of the LEP. • An exhibition of misleading information is also a breach of the EPA Act and renders the LEP invalid. • The public notice of a draft LEP is a mandatory requirement where strict compliance is necessary (although Cripps J in Kent did not

express a view on the mandatory versus directory issue).

¶13-040 Litevale Pty Ltd v Lismore City Council — the adequacy of public notice In Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 (Litevale), the NSW Court of Appeal considered the adequacy of public notice of a draft LEP as well as the adequacy of public notice of a development application. In this case, the Council published a notice in relation to Draft Amendment No 30 — Lismore LEP. The notice stated in its heading — “Extension to Lismore Shopping Square” — and in its text stated that the amendment aimed to rezone specified land. The actual draft LEP sought to rezone land that was, at that time, zoned as Residential 2(a) to Business 3(a) under the LEP. As such, it would make permissible uses prohibited in a 2(a) zoning. These included generating works, goods transport terminals, light industries, transport depots and warehouses. It would also prohibit some uses currently permissible in a 2(a) zoning, such as dual occupancies and dwelling houses not attached to another permissible use. It was claimed by the appellants that these aspects were misleading and, in accordance with the decision in Canterbury, rendered the LEP invalid. The majority of the NSW Court of Appeal (Rolfe AJA and Sheppard AJA) held that the notice was misleading and invalid, while Cole JA in dissent held that the notice was valid. Rolfe AJA said at p 101–102: “Thus s 66 provides for a public notice advising members of the public where and when the proposal and documents, the implementation of some of which may affect their interests, may be inspected. Section 66 does not require any explanation of the proposal or documents and, thus, may be contrasted with the legislative provision considered by the High Court in Scurr v Brisbane City Council (1973) 133 CLR 242; 28 LGRA 50. However, if the notice pursuant to s 66 does attempt an explanation of what is proposed it must be accurate and

complete, either particularly or generally. The problem of seeking to give an explanation in a relatively short document is that there is a real possibility that it will be neither accurate nor complete. The inaccuracy is likely to result from the omission of information. Although no explanation is required by s 66 it is not suggested that if one is given the notice will be invalidated thereby. Problems will arise, however, if [p 102] the notice, as it must do, directs members of the public to where and when all the relevant information may be inspected, but by giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected, so that it is unnecessary for them to accept the notice’s invitation to inspect the relevant information. In those circumstances the obviously beneficial effect of the giving of the public notice would be defeated by the inaccurate or incomplete information in it, which the Act does not require, so that notices under s 66, infected by inaccurate or incomplete information, have been held to be misleading and, hence, invalid. The fact that they comply with the express requirements of the Act does not, in my opinion, save such notices. Thus, once a council goes beyond stating the notice and limited requirements of s 66(1)(a) and seeks to give an explanation, which the section does not require, it seems to me that a real question as to the validity of the notice may arise if, on a consideration of what is stated, it appears that on a fair reading of the notice by a member of the public, the notice may not have conveyed that the draft local environmental plan has a wider operation than stated, whether expressly or impliedly, such that if a member of the public had been aware of that operation he or she may have wished to avail himself or herself of the opportunity to consider all the documents exhibited. In this context it is said that the notice may be misleading and, if it is, that it is invalid. ‘Misleading’ is a word of pejorative connotation, but for present purposes it probably means little more than failing fully to advise

members of the public, through the public notification of the draft local environmental plan, or by making a limited statement lulling them into a false sense of security.” Rolfe AJA considered a member of the public reading the notice would particularly note the heading about an extension to Lismore Shopping Square and would reasonably conclude that the reference to the rezoning related to the extension of the shopping centre, and that, if such a person had no reason to object to an extension of the shopping centre, they would have no particular concern, even though they may well object to the other potential uses. Rolfe AJA cited, with approval, Stein J in Canterbury and the High Court in Scurr. Referring to these two cases, Rolfe AJA concluded at p 108: “These authorities in my respectful opinion, support the view, which flows from a fair reading of the present notice, that it, having undertaken some disclosure, failed to make a sufficient disclosure of the changes to the zoning and, rather, tended to conceal their nature by the emphasised reference to an extension to Lismore Shopping Square. I appreciate that every notice has to be considered according to its terms. I have come to the conclusion that this notice is misleading, in the relevant sense, and is, accordingly, invalid.” Sheppard AJA in similarly holding that the notice was invalid, said at p 112–113: “The question which the appellant’s submission raises for determination is whether the notice may fail to comply with the section if, despite the fact that it contains a clear statement of the matters specified in the statute, it is, or is capable of, misleading readers into thinking that its purpose is to achieve less than, or its ambit of operation is less extensive than, is in truth the case. I think that it must be concluded that a notice which, because of surplusage or for some other reason, is misleading, or capable of being misleading in a material respect, cannot be a notice under the section, notwithstanding that it contains the required statutory information. It is true that the section does not expressly provide that notices should not be misleading and that, as Stein J said in

Canterbury, that the form of the notice is a matter for the Council. But the notice must be no more and no less than a notice of what the public are entitled to know. If the notice merely identified the land and referred to places, times and dates, there would be nothing objectionable about it. It is when material is added that the problem arises. There is then the danger that the notice becomes a notice either of something else or of the required information and an additional matter which may mislead readers into thinking that the proposed change does not involve as much as it in fact does. If this be the case, the notice may have the effect of dissuading them from inspecting the environmental study and the draft local environmental plan. It may do this by so modifying or qualifying the statutory information that it becomes misleading because it induces them, or is capable of inducing them, into believing that the zoning of the land which is specified in the notice will not be changed otherwise than to permit a particular development when much more is involved. The difficulty here is that the heading of the notice which is the only part of it in bold type, refers specifically to the extension of the Lismore Shopping Square. The reference to this is preceded by the words ‘Draft Amendment No 30’. The ordinary meaning of these words would suggest to a reasonable reader that the amendment was for the purpose, and only for the purpose, of the extension of the shopping square. It would not suggest that there was to be any other change in the zoning. That was not in fact the case. I understand the desire of the Council to inform members of the public with an interest in the matter of the nature of what is immediately involved so that the purpose of what is afoot may be understood. But the difficulty is that the attempt to assist members of the public in this way may lead to a situation in which the true effect of what is being done is lost sight of because what is notified is something less than what is in fact proposed. Whether a notice of this kind is valid or not in the sense of its complying with the legislation is a question of law and not of fact, cf Hope v Council of the City of Bathurst (1980) 144 CLR 1 per

Mason J at 7. An appeal therefore lies to this Court on such a question. Having reflected on the matter, I have reached the conclusion that the notice does not comply because it tends to mislead readers of it into thinking that no more is involved than a proposed change in the zoning to permit the extension of the shopping square. It follows that people reading the notice may have been led by it into thinking that they need not inspect the plans or consider making an objection because they have [p 113] no objection to the extension of the shopping square. That does not mean that they may not have had strong objections to other uses to which the land might be put, albeit with the permission of the Council, in future years. It follows that in my opinion the notice is not a notice in accordance with the section with the consequence that the appeal should be upheld.” The following arise from the decision of the majority in Litevale: • The notice of exhibition of a draft LEP under s 66 of the EPA Act does not require any explanation of the proposal, but if an explanation is given, it must be accurate and complete, either particularly or generally, and must not be misleading (per Rolfe AJA and Sheppard AJA). • A notice which merely identifies the land, and refers to the places, times and dates for exhibition and submissions would comply (Sheppard JA). • A notice which does not convey the fact that a draft LEP may have a wider operation than stated may be misleading (Rolfe AJA). • The question of whether a notice is valid (and not misleading) is a question of law not of fact (Sheppard AJA). • A test of whether a notice is misleading is whether a person reading the notice may have been led by it to think they need not

inspect the plans or consider making an objection (Sheppard AJA and Rolfe AJA). • The principles in the decision of Stein J in Canterbury were applied (Rolfe AJA and Sheppard AJA).

¶13-050 El Cheikh v Hurstville City Council — a question of notice In El Cheikh v Hurstville City Council [2002] NSWCA 173 (El Cheikh), the NSW Court of Appeal considered again the question of notice of a draft LEP. The appeal related to land within the City of Hurstville which was zoned 3(c) (Business Centre Zone) and was not subject to any height control. In April 2000, the Council resolved to prepare a draft LEP known as the First Draft Plan to provide a maximum height of two storeys in areas including the subject land. The First Draft Plan was publicly notified and exhibited. The notice explicitly referred to the proposal for height restrictions. The Council then decided not to proceed with the First Draft Plan, but decided to prepare a Second Draft Plan dealing with the proposals in the First Draft Plan and additional zoning changes. The Second Draft Plan was publicly notified and exhibited and was ultimately made by the Minister. In the proceedings, it was claimed that the notice of the Second Draft Plan was misleading in that the stated purpose was silent about the height restrictions proposed in it but it stated that it did not alter any of the recent changes made to the business zone. At first instance, Lloyd J considered that the earlier notification of the First Draft Plan formed part of the context in which the notification of the Second Draft Plan should be considered. Ipp AJA (with whom Sheller JA and Davies AJA agreed) held at paragraphs [31]–[33]: “31 The Council was not required by s 66 to provide any information in the notice about the purpose of the draft plan being exhibited. However, once having provided an explanation, that

explanation needed to be accurate and complete. It was not. The change involving height restrictions was a material matter: Leichhardt Municipal Council v Minister for Planning [No 2] (at 88 to 89). It should have been part of any description of the purpose of the Second Draft Plan. It was not. The notice, looked at on its own, was misleading. This was the view of Lloyd J and I think his Honour was entirely correct in this respect. 32 I turn now to the opinion expressed by Lloyd J that the notice should not be looked at on its own, but, rather, in context, and that the context included the notice for the first Draft Plan. It was on this basis that his Honour said that, ‘because the public, only a month earlier, had had proper notice of those changes,’ there could be no suggestion that any member of the public was misled. 33 Had the notice of the Second Draft Plan referred expressly to the earlier notice, it would have been readily arguable that regard should be had to the earlier notice in determining whether the notice of the Second Draft Plan was misleading. But the notice of the Second Draft Plan neither expressly nor impliedly made any reference to the earlier notice. There is no basis on which it could be said that the earlier notice was incorporated by reference into the later notice. In my opinion, the earlier notice did not form part of any relevant context in which the notice of the Second Draft Plan is to be construed. On this ground alone, in my view, it is not permissible to have regard to the earlier notice. The notice of the Second Draft Plan must be regarded as misleading in a material respect.” Following this conclusion, the Council submitted that the entire draft LEP should not be declared invalid. Rather, the Council submitted only the height restrictions should be declared invalid, as it was severable from the remainder of the LEP, based on s 32 of the Interpretation Act 1987 (NSW). Ipp JA (with whom Sheller JA and Davies AJA agreed) said at paragraphs [38]–[40]: “38 Section 32(2) applies to any provision of an instrument construed as being in excess of power. In other words, it applies

to an instrument part of which is within power and part which is in excess of power. It does not, in my view, apply where there is a lack of power to make the whole instrument. Where the whole instrument is made in excess of power it is a nullity and s 32(2) has no ameliorating effect. This was the conclusion to which Pearlman CJ came in Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 (at 207) and I agree with her Honour in this regard. 39 In any event, the proposition that the provisions relating to height restrictions should be severed from the plan made by the Minister under s 70 (and the remainder of the plan declared to be valid) falls foul of the principle laid down in Olsen v City of Camberwell [1926] V.L.R. 58 (at 68) and followed in several cases since then, see, for example, Dunkley v Evans [1981] 1 WLR 1522, Thames Water Authority v Elmbridge Borough Council [1983] QB 570, Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 and Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86. It was approved by the High Court in Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311. 40 The principle in question (as expressed by Cussen J at 68) is as follows: ‘If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subjectmatter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended as a whole only, or in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail’.” The following can be derived from El Cheikh: • In determining whether a notice is misleading, regard cannot be had to earlier notices which are not referred to, either expressly or impliedly.

• The absence of a draft LEP complying with the EPA Act results in a lack of power to make the entire LEP and, as a consequence, the entire LEP is a nullity and there is no potential application of severance to parts of an LEP made following defective notice.

¶13-060 Smith v Wyong — consideration of exhibition requirements In Smith v Wyong [2003] NSWCA 322 (Smith v Wyong), the NSW Court of Appeal considered further the exhibition requirements associated with a draft LEP under s 66. The facts in this case have been referred to previously in relation to the preparation of a draft LEP and consultation. Section 66(1)(b) required the Council to publicly exhibit a number of documents with a draft LEP, including any SEPP, REP or s 117 direction applying to the land (the subject of the draft LEP) and a statement that the SEPP, REP or s 117 direction substantially governed the content and the operation of the draft LEP. In this case, the applicant contended there was a breach of s 66(1)(b) of the EPA Act in the Council failing to exhibit the s 117 direction applicable to the land (the subject of the draft LEP). At first instance, Bignold J said (cited by Tobias J at paragraph [91]) as follows: “61. In my judgment, the Council’s variant argument as to the proper construction of s 66(1)(b)(ii) and (iii) is correct in that those provisions only attract a State Policy, Regional Plan or s 117 Direction which applies to the land to which the draft local environmental plan is intended to apply in the sense that it applies in such a manner ‘as to substantially govern the content and operation of the draft local environmental plan’. In other words, unless the policy, plan or direction ‘substantially governs the content and operation of the draft local environmental plan’ it does not relevantly apply to the land to which the draft local environmental plan is intended to apply.” Tobias JA held at paragraphs [152] and [155]–[164]: “152 In my opinion, the failure by the Council to publicly exhibit

Direction G9, and G9(iv)(a) in particular, together with its failure to publicly exhibit the statement referred to in s 66(1)(b)(iii), constituted breaches of s 66(1)(b) of the Act. I would therefore reject its submissions to the contrary for the reasons outlined below. … 155 The relevant principles of statutory construction for provisions such as s 66(1)(b) of the Act are authoritatively stated in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381–2. I am therefore prepared to accept for present purposes that s 66(1)(b)(ii) and (iii) are to be construed together in the manner contended by the Council and accepted by the primary judge in the passage extracted in [31] above. However, in my opinion, Direction G9 as a whole did ‘substantially govern the content and operation of the’ draft plan insofar as the latter sought to rezone lands within The Entrance/Long Jetty area from 2(a), 2(b) and 2(d) to 2(c) and to impose height restrictions which would result in a reduction in permissible residential densities on land previously zoned 2(d) under the 1991 LEP. Thus, for example, within the 2(c) zone dwelling houses were and are permissible without development consent. Accordingly, in zoning the relevant lands 2(c), paragraphs (ii) and (iii) of Direction G9 substantially governed the contents of the draft plan and required that it conform to the proscription contained in those directions. 156 I should record that the Council did not contend to the contrary of the proposition that had there been conformity between Direction G9 and the draft plan, the former would have substantially governed the content and operation of the latter. Clearly it would have. It would have ‘substantially governed’ the content and operation of the draft plan with respect to the residential zones in the 1991 LEP in important ways. With respect to building heights and consequent residential densities, it would have done so in fundamental respects; cf Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331 at 338 per Bowen CJ and 348 per Deane J; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal

Land Council (No. 2) (2001) 113 LGERA 148 at 157[51]. 157 The Council’s third submission was that Direction G9 could not substantially govern the content and operation of the draft plan where the content of that plan was at odds with the direction, a proposition accepted by the primary judge in the passage from his judgment recorded in [29] above. The corollary of this argument is that the Council was required to publicly exhibit a s 117 direction only where the content and operation of the draft plan conformed to the terms of the direction. If this were the case, one might ask why it would be necessary to do so having regard to the fact that the direction would be doing no more than drawing the public’s attention to that conformity. 158 I have concluded in [71] that a council does not have the power to prepare a plan which is inconsistent with a relevant s 117 direction. Assuming, however, that this were not the case, one can readily understand why the public’s attention should be drawn to a direction which substantially governs the content and operation of a draft plan where that plan is in disconformity with the otherwise proscriptive terms of the direction, as in the present case. Being counselled by the s 66(1)(b)(iii) statement that any submission made pursuant to s 67 ‘should be made having regard thereto’, the public’s attention is drawn to the disconformity so that they are able, if they wish, to advance a submission that the draft plan should conform to that which the Minister, by his direction, has mandated. After all, directions given by the Minister pursuant to s 117(2) by their very nature refer to principles of environmental planning which the Minister has adopted as a matter of planning policy and sought to have implemented by councils in any draft plans made by them. 159 In my opinion, it follows that if any inconsistency between a draft local environmental plan and a s 117(2) direction is permissible, at least one of the objectives of s 66(1)(b)(iii) is to enable the public to access both the plan and the direction so that they can make submissions pursuant to s 67 ‘having regard thereto’.

160 I have concluded that the amending LEP was, at least in part, in disconformity with Direction G9. However, I am of the opinion that even where there is conformity between the direction and the draft plan, the public still has a significant interest in being made aware of the fact that the content and operation of the draft plan as exhibited had its source in a particular Ministerial direction given under s 117(2). To use the language of s 66(1)(d), the public exhibition of the direction would ‘better enable the draft plan and its implications to be understood’. I see no reason why that objective should not be equally applicable to the mandatory public exhibition of the documents referred to in s 66(1)(b)(ii). 161 Accordingly, the third submission of the Council should be rejected. It follows that the primary judge erred in accepting that submission and holding in [63] of his judgment that there was no obligation to publicly exhibit Direction G9. 162 The Council’s fourth submission was that the question of whether there was an inconsistency between Direction G9 and the content and operation of the draft plan did not concern s 66(1) (b). As a bare proposition this is correct. However, the point I have sought to make above is that the finding of inconsistency does not militate against a finding that Direction G9 did substantially govern the content and operation of the draft plan. As I have already said, it is clearly appropriate to draw the public’s attention to any disconformity or inconsistency so that any submission made pursuant to s 67 is made ‘having regard thereto’ as required by s 66(1)(b)(iii). 163 The Council’s final submission on the issue of breach of s 66 was to the effect that it was not open to the Court to determine the underlying factual basis of s 66(1)(b)(ii) and (iii) as they did not constitute jurisdictional facts. The questions of whether Direction G9 applies ‘to the land to which the draft local environmental plan is intended to apply’ and whether it ‘substantially governs the content and operation of the draft local environmental plan’ involve mixed questions of fact and law in that it is necessary to construe the relevant Ministerial direction in order to provide an answer. In my opinion, it is open to the Court

to perform that exercise and this matter is unaffected by the question of whether any facts underlying s 66(1)(b)(ii) and (iii) are jurisdictional facts. Accordingly, this submission has no substance. 164 For the foregoing reasons, I am of the opinion that were the inconsistency in question to be regarded as permissible, Direction G9 should have been publicly exhibited pursuant to s 66(1)(b)(ii) and a statement to the effect of that set out in s 66(1)(b)(iii) should have been publicly exhibited. The failure of the Council to do either constituted a breach of those provisions. I shall now turn now to the legal consequences of that breach.” On the consequences of whether a breach of s 66(1)(b) results in invalidity of the LEP, Tobias JA held at paragraphs [173]–[176] (with Sheller JA in agreement, see paragraph [66]): “173 In my view, the premise adopted by the primary judge to distinguish the present case from Scurr and Litevale is unsustainable. To assert that the public ‘was in no way misled or otherwise prejudiced’ by the Council’s failure to publicly exhibit Direction G9 ignores the very purpose of the obligation imposed by the Act, which, as I have already stated, is to inform the public of a Ministerial direction to the Council which substantially governed the content and operation of the draft plan, particularly with respect to the permissible residential density of the land to which it was intended to apply. 174 The legislative purpose of s 61(1)(b)(ii) and (iii) and its significance is further discernible from the fact that the statement required to be publicly exhibited pursuant to s 61(1)(b)(iii) must in terms state that any submission made by any person pursuant to s 67 should be made having regard to the document exhibited pursuant to s 61(1)(b)(ii). The clear inference is that the legislature considered that it would be inimical to the object of the Act identified in s 5(c) if members of the public were to make a s 67 submission without the opportunity to consider the documents referred to in s 61(1)(b)(ii) and their relationship to, and the effect on, the provisions of the exhibited draft plan.

175 Finally, it is to be observed that the importance of complying with the mandatory provisions of s 66(1)(b) is emphasised in the Act by the obligation imposed on the Council by s 68(4)(d)(i) to submit to the Director-General a statement to the effect that the provisions (note the use of the plural) of s 66 (relating to public involvement in the preparation of the draft plan) have been complied with. An identical obligation is imposed upon the Director-General by s 69(c) when furnishing his or her report to the Minister. 176 Given the objectives set forth in s 5(c) of the Act, I regard the legislative intention as being to render compliance by council with the public exhibition obligations imposed by s 66(1)(b) an essential step in the process of formulating the content and operation of a draft local environmental plan for submission to the Director-General for ultimate adoption by the Minister. I would thus discern a clear legislative intent to invalidate any local environmental plan where the public exhibition requirements of s 66(1)(b) have not been complied with. Accordingly, in my opinion, the amending LEP, at least in part, was invalid.” On the consequences of a finding of breach of the public exhibition requirements, Spigelman CJ agreed with Tobias JA (see paragraphs [55]–[63]). The following proposition can be derived from Smith v Wyong: • A failure by Council to exhibit an applicable SEPP, REP or s 117 direction which substantially governs the content and operation of a draft LEP together with that draft LEP is a breach of the EPA Act. The consequence of a breach of these exhibition requirements is that any resulting LEP is invalid in accordance with Project Blue Sky (see Chapter ¶12 for further commentary on Project Blue Sky).

¶13-070 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning — validity of an amendment to a Local Environmental Plan to rezone

In Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 (Gales Holdings), the NSW Court of Appeal considered a challenge to the validity of an amendment to the Tweed LEP to rezone certain land at Chinderah from Special Uses to Industrial. One of the contentions in the appeal was whether the public notice and exhibition of the draft LEP was misleading. The notice in question referred to the aims of the plan including to rezone land to allow for commerce and trade and environmental protection land uses, whereas the plan actually changed the LEP map to rezone land for industrial and environmental protection land uses. Tobias JA (with whom Beazley JA concurred and Basten JA agreed with on this issue) said at paragraphs [110], [116]–[117] and [119]– [120]: “110 The appellant then set out the principles developed to determine whether the obligation to give a public notice pursuant to s 66(1)(a) of the EPA Act had miscarried. Those principles, which I accept as accurate and which were not disputed, are stated in the appellant’s submissions in the following terms: (a) A public notice that is misleading is invalid and not a public notice as required by s 66(1)(a): El Cheikh v Hurstville City Council (2002) 121 LGERA 293 at 297–298 [12] applying Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 at 101–102 per Rolfe AJA; (b) ‘Misleading’ is a word of pejorative connotation but for present purposes probably means little more than failing fully to advise members of the public, through public notification of the exhibition of the draft plan, or by making a limited statement lulling them into a false sense of security: Litevale at 102; (c) Where one document expressly or impliedly refers to another document, then regard should be had to the latter document when determining whether the former is misleading: El Cheikh at 301–302 [33];

(d) The reasonable person the subject of the relevant test is a person with no knowledge of planning law and the relevant provisions of the LEP: Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 357. … 116 The present case is not one involving the non-public exhibition of documents which s 66(1)(b) mandates must be exhibited. All documents required by s 66(1)(b) to be exhibited were in fact so exhibited. The issue in the present case is somewhat different. It involves an exhibition of documents which, so it was submitted, were misleading so that the process of public exhibition miscarried in a fundamental respect. 117 I would accept the proposition that if a relevant document required to be publicly exhibited was misleading in the sense that the reasonable member of the public referred to by the appellant would be misled into believing that the subject land was to be rezoned Commerce and Trade and not Industrial, then the appellant should succeed on this ground of challenge. The question, however, is whether a reasonable person would be lulled into such a false sense of security, as the appellant submitted, even if he or she only read sub-paragraph (a) of the aims and objectives of draft amendment 14 and no further. … 119 Given that we are concerned here with the ‘reasonable’ member of the public, in my opinion such a person would at least read and/or take note of the eight pages of documents which I have listed above. Although that person would have read the aim of draft amendment 14 upon which reliance was placed by the appellant, there is no reason to believe he or she would not also have read clause 4(a). The reasonable person would be aware that planning documents such as a local environmental plan have zoning maps which have different colours applicable to different zones. Such a person would, in my view, have at least looked at

the zoning map when it would have become obvious that it was proposed to zone the subject land 4(a) Industrial. In this context it is to be noted that per (a) of the ‘Aims, Objectives etc’ refers to the rezoning of the land to which the draft plan applied to allow not only for Commerce and Trade but also for environmental protection land uses. 120 The reasonable person would not only wish to know the extent of the land to which the plan applied but also the area of land proposed to be rezoned Commerce and Trade and the area proposed to be zoned Environmental Protection. This would inevitably have led that person to look at the zoning map where it would have become clear that the subject land was to be zoned 4(a) Industrial. If that person was still in doubt, then as a reasonable person he or she would have read the Explanatory Notes. The latter was only a short document and, given its stated purpose to explain the proposed rezoning, it would have been read. The reading of the Explanatory Notes and, in particular, the second sentence of the third paragraph would have put beyond doubt that it was intended to rezone approximately 19 hectares of land in the western portion of lot 32 as 4(a) Industrial. When combined with the zoning map which depicted the rezoning of those 19 hectares as 4(a) Industrial, any residual confusion on the part of the reasonable reader would have been dispelled.” Thus, in Gales Holdings, the Court accepted the principles advanced by the appellant in relation to public notice, namely: • A public notice that is misleading is invalid and not a public notice as required by s 66. • Misleading means no more than failing to fully advise members of the public through either: – public notification of the exhibition of the draft plan, or – making a limited statement lulling the public into a false sense of security. • Where a document expressly or impliedly refers to another

document, regard should be given to the second document in determining whether the first document is misleading. • A reasonable person, the subject of the relevant test, is a person with no knowledge of planning law and the relevant provisions of the LEP. Gales Holdings expanded the last point to say that a reasonable person would: • read the documents on public display • be aware of the importance of zoning maps and would have looked at the zoning map, and • read the Explanatory Note if he or she had any remaining doubts. In Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65, the NSW Court of Appeal, Basten JA for the Court, commented on the idea of the “reasonable reader” at paragraph [25], saying that: “25 This discussion suggests that the idea of the ‘reasonable reader’ may be better understood by reference to the ‘interested reader’, to clarify that an analysis of the materials is to be undertaken bearing in mind the statutory purpose of public exhibition of documents serving a specific statutory function, in which most people will have little or no interest.”

COUNCIL CONSIDERATION OF SUBMISSIONS ON DRAFT LOCAL ENVIRONMENTAL PLAN ¶14-010 Public submissions on draft Local Environmental Plan Up until its repeal by the Environmental Planning and Assessment Amendment Act 2008 (NSW) (2008 Amendments), s 68 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provided for the consideration of public submissions made in relation

to a draft Local Environmental Plan (LEP) and the option for a public hearing. Section 68 provided an option for a council to hold a public hearing on a draft LEP either in response to a request for a hearing in a public submission or of its own volition. There was no mandatory right for a person to request a public hearing to enable a more intensive consideration of contentious proposals in a draft LEP. In practice, the option for a public hearing was often taken up by councils, usually on general Local Government Area (LGA)-wide draft LEPs. While the EPA Act did not specify who would conduct such public hearings, the services of the Commissioners of Inquiry established under s 119 of the EPA Act were often used by councils for this purpose. Reports of any public hearing were required to be made public (s 68(2)). More than one public hearing could be held into any of the submission and one hearing may be held into more than one submission (s 68(7)). The council was required to consider all submissions and the report of any public hearing. It was empowered to amend the draft LEP arising from its consideration of submissions and matters raised in any public hearing. The council’s powers to alter a draft LEP need not relate to a submission (s 68(3A)), although the power to make significant alterations was circumscribed as will be seen in the later discussion. Where the council altered a draft LEP following its consideration of submissions and matters raised in a public hearing, the council had an option to re-exhibit the altered draft (s 68(3B)), but the requirement to re-exhibit an altered draft LEP was not mandatory. Following its consideration, the council was required to forward the draft LEP, together with supporting information to verify compliance with the processes under the EPA Act, to the Director-General of the Department of Planning (s 68(4)). In submitting a draft LEP, the council was empowered to exclude certain provisions of the draft LEP or to exclude part of the land covered by the draft LEP to enable further consideration of the deferred matter, provided such deferred matters would not prejudice the consideration by the Director-General and the Minister of the draft LEP (s 68(5)). The council could further consider and, at a later time,

proceed with the deferred matter without the need for re-exhibition (s 68(6)). Once submitted to the Director-General, the council and the DirectorGeneral may agree to the council changing the draft LEP and resubmitting it. The Director-General may return a draft LEP to the council for changes to accord with any applicable Standard Instrument or to take into account ministerial directions under s 117 (s 68(9)). The consideration process under s 68 provided a flexible but constrained process with the key features, being that: • there was an option for a public hearing to enable greater scrutiny and public involvement, if required • there was a requirement for the report of a public hearing to be made public, to ensure openness and transparency • it required the council would consider the submissions and the report of any public hearing • consideration by the council was focused on submissions and matters raised in any public hearing with the power to alter the draft LEP directed at those two matters, but not necessarily limited to matters raised in submissions (This provided a focus for council consideration, without inflexibly tying council only to alterations to the draft LEP which were directly responsive to a matter raised in submissions.) • it avoided the former system relating to draft planning schemes under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919) of formal objections to a draft, followed by a formal determination of each objection • it enabled a council to defer part of a draft LEP for further consideration, provided that the deferred matters did not prejudice the consideration of the remainder of the draft LEP by the Director-General or the Minister • it required the council to verify to the Department its compliance

with proper processes in the preparation of a draft LEP and required the council to substantiate this by providing the Department with relevant documentation, and • it enabled a flexible process for the draft LEP to be adjusted by agreement between the council and the Department or for the return of the draft to make any necessary adjustments to comply with any applicable Standard Instrument or any s 117 direction.

¶14-020 Noroton Holdings Pty Ltd v Friends of Katoomba Creek Valley Inc — challenge to the validity of a Local Environmental Plan In Noroton Holdings Pty Ltd v Friends of Katoomba Creek Valley Inc (1996) 98 LGERA 335 (Noroton), the NSW Court of Appeal considered a challenge to the validity of an LEP prepared by the Blue Mountains City Council and made by the Minister. The LEP related to land within the Katoomba Golf Course, which was owned by the Council. The Council had entered into a contract with Noroton Holdings to sell part of the golf course on which a hotel and residential developments were proposed. A public hearing was convened under s 68 of the EPA Act and recommended that the Council not proceed with a draft LEP to permit the development and not reclassify the land from community to operational land under the LG Act 1919. The Council officers made recommendations to a Council meeting consistent with recommendations of the public hearing. At the same meeting, the Council heard representatives from Noroton Holdings and Noroton’s lawyer, as well as the Council’s lawyer. Noroton pressed the Council to submit the draft LEP to the Minister in accordance with what it described as its “clear statutory and contractual obligation” and indicated that, if the Council failed to do so, Noroton would seek legal redress against the Council through the Courts. The Council then resolved not to proceed with the LEP, but it also decided to refer the draft LEP to the Minister for determination. The Minister then made the LEP.

At first instance, Pearlman J held that the LEP was invalid as the Council had regard to irrelevant considerations, namely its contractual relationship with Noroton and the possibility of litigation. In the NSW Court of Appeal, Priestley JA (with whom Beazley JA agreed) held as follows at p 351–352: “I have already said that the materials before the court make it plain that the Council was concerned with the possibility of litigation against it no matter what decision it reached in considering whether to resolve to proceed with the draft LEP. The resolution which the Council adopted on 14 July 1994 itself shows that the Council recognised the situation of conflict in which it was placed in its differing roles as consent authority and as a party to the contract with Noroton. The resolution also shows that it was the Council’s view that, as a consent authority, it did not want to proceed with the draft LEP. The Council avoided making that decision because of its concern about threatened litigation. It seems to me that as a consent authority the Council was obliged to act upon the view it had formed that the proposed development was undesirable from a town planning point of view. It does not seem to me to have been relevant for the Council in reaching its decision on a town planning matter to take into account possible repercussions to it in its commercial aspect. In my view the Council did take such possible repercussions into account. That was [p 352] one of the reasons why the Council attempted to sit on the fence, instead of deciding whether or not it would submit, in accordance with s. 68(4), the documentation listed in that subsection.” An additional contention raised on behalf of Noroton was whether the Council had a statutory duty to submit the draft LEP to the Department of Planning under s 68(4) of the EPA Act and could not in effect abandon the draft LEP and not proceed further. This contention was rejected by the NSW Court of Appeal. Mahoney J (with whom Priestley JA and Beazley JA agreed) said in relation to this issue at p

341–342: “The thrust of his argument was, I think, that, by the s. 68(4) stage, the Council had no further duties to perform; that the only step to be taken by it was couched in mandatory (shall) language; and that the general scheme of the legislation envisaged that, the procedure having reached that stage, it should proceed to completion by a ministerial decision. It was suggested, in argument, that by the s. 68(4) stage, submissions would have been received by the public [p 342] and that, there being a public interest involved, it did not lay with the Council to determine whether the matter should or should not proceed. In my opinion, this submission should not be accepted. I appreciate the force of the term ‘shall’ in s. 68(4). That term is, of course, ordinarily used where it is intended that a mandatory duty be imposed: see Interpretation Act, s. 9. But the effect of it and similar terms depends upon the intention of the legislature as disclosed by the legislation in its context: see Hatton v Beaumont (1977) 2 NSWLR 211: (1978) 52 ALJR 589. The term ‘shall’ and similar terms are used in relation to the earlier stages of the procedure and, as it is conceded, such terms do not exclude a discretion in the Council to resolve that the procedure not go beyond the relevant stage. I see no reason why the term in s. 68(4) should be given a different effect. I am conscious that, at that stage, the Council has done all that the legislation requires of it other than to send the matter to the Secretary. But that, I think, is not a reason sufficient to construe the term as mandatory in the sense here suggested. I think that the term is used to impose an obligation upon a council to forward the material to the Secretary subject to there being, for some appropriate reason, the occasion not to do so. I do not see the language of the subsection as excluding the power which otherwise the council would have to determine that the procedure go no further. I therefore agree with the trial judge’s opinion that in arriving at

the resolution which it adopted the Council took into account an impermissible consideration which invalidated the resolution.” The following propositions can be derived from Noroton: • A Council has no obligation under s 68(4) of the EPA Act to submit a draft LEP to the Department of Planning after the public exhibition and consideration of submissions. A Council may decide not to proceed further with the draft LEP. • Where the Council, in considering a draft LEP takes into account an irrelevant consideration, such as its own commercial issues and the possibility of litigation, this will invalidate its decision to proceed with the draft LEP. Following Noroton, any breach of the standard principles of administrative law by either the Council in its considerations under s 68 and by the Minister under s 70 will invalidate any resulting LEP, particularly on the grounds of: • taking into account irrelevant considerations • failing to take into account relevant considerations • bias (In relation to the issue of bias in the making of an EPI, see Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 and Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106 at paragraphs [141]– [180].) • prejudice/predetermination/fetter on discretion, and • manifest unreasonableness.

¶14-030 Vanmeld Pty Limited v Fairfield City Council — consideration of an application to declare a clause of a Local Environmental Plan invalid In Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6

(Vanmeld), the NSW Court of Appeal considered an application to declare cl 13(3) of the Fairfield LEP invalid. The land was zoned 6(d) Recreation Tourism zone under the Fairfield LEP and was the location of a tourist attraction called the Magic Kingdom. The land was in a floodway and cl 13(3) provided that a person must not place fill in a floodway in land zoned 6(d). The provision under challenge was part of a comprehensive LEP. The draft LEP was publicly exhibited twice and public hearings were held. When the draft LEP was on public display and the subject of public hearing, it did not contain cl 13(3). Clause 13(3) was subsequently inserted by the Council at the initiative of the Mayor. Up until that time, filling in the floodway was permitted, subject to meeting certain criteria. With the inclusion of a cl 13(3), filling was absolutely prohibited on the land. Clause 13(3) was not subject to any public exhibition, nor was the appellant afforded an opportunity to make any submission. The proceedings included consideration of the privative clause in the EPA Act, namely s 35. This issue was discussed previously in Chapter ¶7. At first instance, Bignold J in the Land and Environment Court of NSW (NSWLEC) dismissed the challenge due to the operation of the privative clause s 35. On appeal, the appellant contended that the inclusion of cl 13(3) was in breach of the EPA Act, that it constituted a breach of the common law requirements for procedural fairness and that the making of the LEP was undertaken for an improper purpose or in bad faith. In relation to the contention that the inclusion of cl 13(3) was in breach of the EPA Act, the appellant argued there was a breach of two conditions precedent to the exercise of the power to make an LEP. The first was that the amendment did not arise from public submissions. The second was that the amendment was not publicly advertised. In relation to this contention, Spigelman CJ said at paragraphs [38]– [48] as follows: “38. The detailed scheme of consultation and public exhibition in the EPA Act, makes it clear that Parliament regarded the

procedural steps as of considerable significance for the integrity of the process of formulating local environmental plans. The critical provision for present purposes is s. 68(3), which authorises the Council to make ‘alterations’ to the draft LEP after public submissions have been received and a public hearing, if any, has occurred. However, such ‘alterations’ are limited to those which the Council: ‘… considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.’ 39. The Respondent Council relied on ss. 68(3A) and (3B) which state: ‘3(A) An alteration made by a council pursuant to subsection (3) need not relate to the submission. (3B) The Council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3) …’. 40. The interrelationship between subsections (3) and (3A) is a matter of some difficulty. Whilst an alteration ‘need not relate to a submission’, it remains the case that the power to alter is restricted by reference to ‘considerations of submissions’ or of ‘matters raised at any public hearing’. Whatever may be the effect of subsection (3A), it does not free a Council to adopt whatever amendments it likes, as if the words of qualification had been deleted from subsection (3). It is not, however, necessary to determine the proper construction of the nexus for which subsection (3) provides, in this case. 41. The Appellant’s submissions were directed, and directed only, to the proposition that the subject matter of subclause 13(3) did not in fact arise from the content of any ‘submission’ or from any ‘matter raised’ at a public hearing. Accordingly, it was submitted that there was a breach of what was described as a ‘condition precedent’, namely, the obligation for the contents of a local environmental plan to go through a process of public notice,

public exhibition and receipt of submissions, which did not occur with respect to subclause 13(3). 42. The trigger of the power to make ‘alterations’ is whether or not the Council ‘considers’ such alterations to be necessary ‘from its consideration of submissions or matters raised at any public hearing’. The condition precedent to the power is not the fact itself — i.e. did the amendment actually arise from a submission or public hearing — but the opinion of the Council that it did so arise. (See eg The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297). This is a particular kind of jurisdictional fact. (Craig Administrative Law 3rd ed pp 368–370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198; the passage from Craig was also referred to with approval in Australian Heritage Commission supra 303 in 34). 43. The process by which the Council forms its opinion is not immune from judicial review, but the grounds on which such review must be based are as set out by Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118–119 and subsequent authorities. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian Heritage Commission supra 301, 303; Bruce v Cole NSWCA 12 June 1998 pp. 36-38. See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 323). 44. Save insofar as it attacked the Council’s deliberations on the grounds of improper purpose or lack of bona fides, the subject of Ground 3 with which I will deal below, the Appellant did not challenge the formation of the opinion of the Council on any administrative law ground. Specifically, there was no suggestion that the Council did not ‘consider’ the ‘alteration’ to be ‘necessary’ as, ‘arising from its consideration of submissions or matters raised at [the] public hearing’. This submission should be rejected. 45. In order to vitiate the Council’s decision on the Appellant’s case, the question — Did cl. 13(3) arise from a submission or a public hearing? — would have to be a jurisdictional fact, so that

the Council’s power to amend depends on the actual existence of a nexus between the amendment and a submission or matter raised at a hearing. The construction of cl. 68(3) indicates that the relevant jurisdictional fact cannot be expressed in that way. 46. The Appellant’s second submission, under the first ground of appeal, was that the process miscarried by reason of the Council’s failure to publicly exhibit the amendment in cl. 13(3). This must also be rejected. 47. Subsection 68(3B) makes it clear that the Council had a separate discretion to exercise with respect to public exhibition after any amendment. (See Coles Supermarkets Australia Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 341, 346 per Pearlman J). The Appellant never challenged the decision not to advertise the amendment on any administrative law ground. 48. Whilst there are difficulties with the proposition that the amendment was such that it could be said to be so significant, that the LEP cannot be characterised as the product of a Part III Division 4 process, it is not necessary to decide the issue. (Cf Leichhardt Municipal Council v Minister for Planning (No. 2) (1995) 87 LGERA 78, 84–88; Pearson ‘Environmental Planning Instruments — Consultation and Alteration’ (1995) 12 EPLJ 352).” In relation to this conclusion, Meagher JA (see paragraph [179]) and Powell JA (see paragraph [186]) concurred with Spigelman CJ. On the question of whether the inclusion of cl 13(3) constituted a breach of the common law requirements for procedural fairness, Spigelman CJ concluded that there was a requirement for procedural fairness which had been breached by the Council. The effect of that breach of the requirement for procedural fairness was that the draft Fairfield LEP submitted by the Council to the Director was not a draft LEP within the meaning of the EPA Act. The basis for this conclusion was outlined by Spigelman CJ as follows: “55 In the present case the issue arises with respect to the

construction of the power in s 68(3) of the EPA Act to amend a draft LEP which has already been publicly exhibited. The two issues which arise are: (i) Does the exercise of the power in the circumstances of the present case impinge on the rights, interests and expectations of the Appellant in the ‘direct and immediate way’ to which Mason J referred? (ii) Does the express legislative provision for public notice and public exhibition constitute a ‘clear manifestation’ of a statutory intention that the common law duty to accord procedural fairness is to be excluded, with respect to the exercise of the power under 68(3)? 56 In considering the first of these issues it is important to recognise that the Appellant did not contend that the Council had created any form of expectation, by reason of past practice or otherwise, that it would engage in any form of consultation with affected landowners, with respect to amendments of the character found in subclause 13(3). … 59 The issue in the present case must be determined on the basis of the statutory power in 68(3), to be construed in the context of the legislative scheme of which it forms part. … 61 The relevant test is whether an amendment to a draft LEP under s 68(3) affects an individual landowner in the ‘direct and immediate way’ to which Mason J referred in Kioa v West. 62 It is relevant to note that the power may be exercised, and in the ordinary course is usually exercised, by promulgating a provision in terms of general language which often, perhaps usually, applies to significant numbers of landowners. However, there is nothing in the nature of the power which requires it to be exercised in this way. An amendment under s 68(3) may apply to only a single landowner. This suggests that the issue is not

whether an obligation to afford procedural fairness exists at all, but what is the content of such an obligation in a specific context. … 73 There are statutory powers which are of such general application and which involve such a significant policy content that, by their nature, they indicate an intention by the Parliament to exclude the obligation to accord procedural fairness. See for examples in the planning context: Minister for Urban Affairs & Planning v Rosemont Estates Pty Limited (1996) 91 LGERA 31, 91 per Cole JA; Save the Showground for Sydney Inc v The Minister for Urban Affairs & Planning (1997) 95 LGERA 33, 51–53 per Beazley JA. However, the relevant principle is that the duty is excluded only by ‘express words of plain intendment’ (Commissioner of Police v Tanos (1957-58) 98 CLR 383, 396; J v Lieschke (1986-87) 162 CLR 446, 463; Annetts v McCann supra 598; Ainsworth v Criminal Justice Commission supra 576). 74 The fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation. … 78 It is also relevant to note that the fact that numerous persons are affected by the particular power exercised in the circumstances of a specific case, will also arise on the issue of discretion to grant relief. In Brooks v Minister for Planning & Environment (1988) 68 LGRA 91, to which I refer below on the mini-code argument. Hemmings J indicated that, if he had been wrong with regard to that question, he would have refused relief to the applicant who challenged the validity of an LEP on the basis that: ‘… it would work such an injustice as to be disproportionate to the end secured by enforcement of the legislation’. That was because: ‘That plan, of course, extends to a vast area and not just that of the subject applicants’ (100).

79 The power in s 68(3) can be exercised in so general a way and with so significant a policy content, that a Court will readily infer that no opportunity to make submissions should have been afforded. That is not, however because the statutory power by its inherent character excludes the common law duty. Rather it is because the content of the duty in a particular exercise of the power is such that the failure to provide an opportunity to make submissions is not, in all the circumstances, a breach of the duty. 80 The Court is not concerned with a provision of general application to all land lying in a floodway, in circumstances in which the number of such owners is large. The particular decision in issue in these proceedings — the inclusion of subclause 13(3) in the Fairfield LEP — is, in terms, specifically limited to a very small number of landowners who could be readily approached. In my view, cl 13(3) does impinge on the rights and interests of these landowners in a ‘direct and immediate way’. 81 Mr Tobias QC, who appeared for the Respondent Council, submitted, alternatively, that the scheme for public notice and exhibition, for which Part III of Division 4 of the EPA Act provides, was intended to constitute a mini-code for all consultation with persons affected by a local environment plan. This code for public notice was intended to apply to the exclusion of any private notice, which may otherwise have been required by the common law duty to accord procedural fairness. Accordingly, for purposes of the present case, s 68(3B) expressly conferred a discretion on the Council as to whether a draft plan as amended should be subject to further public notice and exhibition. That discretion should be understood as substituting for any common law rights of private notice. As I have noted above, the exercise of that discretion was not separately challenged on any administrative law ground. 82 An argument of this character, with respect to the scheme of the EPA Act as then in force, was accepted by Hemmings J in Brooks v Minister for Planning & Environment supra, where his Honour said:

‘The EPA Act has extensive provisions requiring advertising, exhibition and notice, but does not in terms require such personal notification to be given. A draft scheme may, as in this case, apply to a very large geographical area and a multitude of properties and owners, and I do not believe that this likelihood was overlooked by the legislature. … In this case the Council and the Minister, in my judgment, have observed all specified procedural steps and exercised all powers and duties adequately and in conformity with the provisions of the EPA Act for the making of the LEP. In my opinion, an examination of the provisions of Part III of the EPA Act with respect to the making of environmental planning instruments and the mandatory provisions for exhibition and public participation makes it clear that Parliament has specifically directed its attention to the question of whether the rule is to apply or not, and the manner in which the discretion of the statutory authority or Minister is to be exercised. In my opinion, in substitution for the common law, Part III is an appropriate self-contained statutory code of ‘fairness’ prescribing the steps leading up to and the making of an LEP, and there has been total compliance therewith. (99–100)’ 83 His Honour did not refer to the contrary views on this matter expressed by McLelland [sic. This should read “McClelland”] J in Sydney City Council v Ke-Su Investments Pty Limited (No 2) (1983) 51 LGRA 186, 202; see also Bradbury ‘The Duty to Observe Procedural Fairness in the New South Wales Planning System’ (1995) 12 EPLJ 440. Similar conclusions have been reached with respect to the Victorian planning legislation as in force from time to time. See Attorney General (Victoria) v City of Knox (1979) 42 LGRA 402, 423; Mietta’s Melbourne Hotel Pty Limited v Roper (1988) 17 ALD 112, 114; Grollo Australia Pty Limited v Minister for Planning & Urban Growth & Development (1993) 1 VR 627, 637–640.

84 In the case of an amendment, after public exhibition, pursuant to the power in s 68(3) of the EPA Act, Council must establish that the discretion with respect to further public notice and exhibition provided in s 68(3B) is part of a mini-code designed to provide exhaustively for the circumstances in which notice of either a public or private character is to be given. If that is so then, where, as here, the discretion was exercised against any further public notice, no complaint can be made by those who may otherwise have been entitled to private notice at common law. 85 In my opinion, the decision of Hemmings J in Brooks has been superseded by the much more stringent requirements for exclusion of the duty to accord procedural fairness, established in subsequent decisions of the High Court, particularly Lieschke, Annetts and Ainsworth. 86 The reasoning of Mason CJ, Deane and McHugh JJ in the joint majority judgment in Annetts v McCann supra 598 is in point: ‘In Tanos (1958) 98 CLR at 396 Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelt out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344–345, 347, 349).’ … 91 … In my view, applying the test of ‘express words of plain intendment’ (Tanos), the legislative scheme for public notice and exhibition under Division 4 Part III of the EPA Act is not intended to be exhaustive of all forms of consultation. The express provision in s 66 for public notice and exhibition of the original draft LEP is directed to requiring a public consultation process with respect to proposals in which the public at large is interested. The legislature regarded the process of public consultation of all aspects of an LEP as being of such significance that it should not

be left to the discretion of individual councils to respond to whatever democratic pressures may exist in each case. 92 The fact that the content of an Environmental Planning Instrument often raise [sic] questions of broad public concern is the basis of this specific statutory regime. Issues of public interest of this character require a public process in a democratic system of government. Citizens may be interested in such quasi legislation, whether or not they have any specific tangible ‘right, interest or expectation’ of a character which the common law doctrine of procedural fairness is designed to protect. The requirement of a community wide consultation is not the equivalent of, nor in my opinion exhaustive of, obligations to consult by reason of an intrusion upon private rights and interests. 93 Subsection 68(3B) creates a discretion in the case of any alterations made after public submissions and any public hearing. Obviously such amendments may not be of such significance as to justify further public consultation. Furthermore, the consideration already given in the course of submissions and public hearing may have satisfied the policy purposes of the Act. The legislature was content to leave further publication at this point to the Council, subject to the Minister directing further public exhibition under s 70(3). The purpose of public consultation is again not equivalent to nor, in my opinion, intended to be exhaustive of, all forms of consultation. 94 It will often, perhaps almost always, be the case that the process of public notice and exhibition will be found to satisfy the common law obligation to accord procedural fairness, even in the case of particular persons whose interests are specifically adversely affected by the contents of a draft LEP. That is not however sufficient for the Council in the circumstances of the present case. 95 Private landowners can be expected to look after their own interests by maintaining an interest in the activities of their Council and investigating any proposed local environmental plan, even without notice specifically directed to each affected

landowner, and by participating in the public process. The course of public submissions, and of any public hearing, will often provide sufficient opportunity for affected landowners to make submissions. 96 The plan as publicly exhibited — a process which in the circumstances may well have accorded procedural fairness, even to these few specific landholders, with respect to the contents of the plan as so exhibited — indicated that development of this character could be permissible with consent, subject to certain conditions. The change from ‘permissible with consent’ to ‘prohibited’, adversely affected the ‘rights, interests and expectations’ of this small group of persons. 97 If the Council had chosen to further publicly exhibit the amended plan under s 68(3B), then those persons would probably not have been entitled to complain. Without such exhibition, however, in my opinion, the Council was obliged to afford those specific persons an opportunity to make submissions to the Council on the adoption of the amendment to cl 13. It may be that such private notice procedure could have been more readily and expeditiously conducted than any process of public notice and public exhibition. No such opportunity was afforded to the Applicant. 98 The discretion in subsection 68(3B) retains a real content with respect to amendments which do not affect ‘rights, interests and expectations’ in the relevant sense and in cases where the obligation to accord procedural fairness has been discharged in the course of public submissions and hearings or by, perhaps more expeditious, private notice. 99 Here, no notice of any character was given and no opportunity was afforded to make submissions. This occurred in a context where a quite different regime had been promulgated and publicly exhibited. In my view procedural fairness should have been accorded to relevant landowners before the Council changed the applicable rule from ‘permissible by consent’ to ‘prohibited’. 100 The draft Fairfield LEP which the Council purported to submit

to the Director under s 68(4)(c) was not a ‘draft local environmental plan’ within the meaning of that section. Accordingly, the Minister could not make a LEP under s 70(1)(a) (i) ‘in accordance with’ a ‘draft local environmental plan as submitted by the council’, because no such plan was submitted.” Powell JA, who disagreed with Spigelman CJ, said at paragraph [190]: “190 ... it seems to me that the provisions of Part III of Division 4 of the EPA Act are such as to indicate a legislative intention that, except to the extent of the requirements to notify, and to consult, there provided for, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument …” Meagher JA in his judgment stated that he “emphatically” disagreed with Spigelman CJ that the Council was guilty of any breach of the common law rules of procedural fairness. He said at paragraphs [181]–[183]: “181 In this case, the Council publicly exhibited its draft LEP between March and June 1992, and again from 17 August to 9 October 1992, and for five months from December 1992 until May 1993 held a public hearing into submissions received concerning the draft LEP. It may thus be seen that the Council consulted with its ratepayers as far as possible, and did nothing clandestine. But, more than that, during the public hearing there was extensive discussion about flood mitigation and flood management, which led directly to the prohibition of fill in flooding areas contained in cl. 13(3). The appellant must have known from this discussion in what direction policies were moving and could have said all it wanted to say on the matter either at or after the public meeting; and, indeed, despite the litany of alleged wrongs on behalf of the Council, it was never suggested that the provisions of cl. 13(3) were surprising or unexpected, much less that there was a reasonable expectation that no amendment of the sort would be made.

182 In these circumstances, I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer. 183 The council was meticulous in according all ratepayers that measure of fairness which the Statute mandated. It did everything it was expected to do by the statutory code. …” Thus, despite the Chief Justice’s extensive arguments to the contrary, the majority of the NSW Court of Appeal in Vanmeld held that, in the making of an LEP, a council is not subject to any duty to accord procedural fairness to any person who might be affected by the provisions of the draft LEP. This is on the basis that the EPA Act specifies its own procedures for public notification and consultation with persons affected and evinces a legislative intention to displace the normal common law requirements subject to compliance with the requirements of the EPA Act. The appellant also challenged the Council decision to include cl 13(3) on the basis of improper purpose or lack of bona fides. At first instance, Bignold J found this was not the case. Spigelman CJ held that he was not satisfied the Council decision was tainted by bad faith or by any extraneous or improper purpose. He said at paragraphs [103]–[106]: “103 The submission made to this Court was, in essence, that the amendment was tainted by an extraneous or improper purpose, or manifested mala fides, because it was directed to the deprivation of rights of owners of specific property to exploit their land. This purpose was said to arise from the fact that the amendment was instituted by a member of Council, who acted without professional advice, and who wished to ensure that, in the future, neither the Council itself nor the staff of the Council, nor the Court on appeal, could exercise any discretion so as to permit development in the particular floodway. 104 None of the matters relied on constitutes an extraneous or improper purpose, nor a manifestation of mala fides. The expression of opinion and motive on the part of Alderman Lord, who instigated the amendment, does not necessarily reflect the collective opinion of the Council which passed the amendment.

Even if it could do so, nothing in the conduct of Alderman Lord indicates an improper motive or purpose, or manifests mala fides. 105 She wished to prohibit development by means of filling on the land in this particular floodway, by reason of the experience that she had had with previous decisions of Council permitting filling in that floodway. She was obviously concerned with the consequences of development of this character. This involved, in my opinion, proper purposes for the Council to seek to achieve in developing a LEP. 106 The fact that a member of Council or even the Council itself, wished to ensure that neither the Council itself, nor its officers, nor the Court on appeal from the Council, could exercise a discretion adverse to the policy that the Council wished to implement with respect to this particular land, is democracy at work. It indicates nothing in the nature of an extraneous purpose. Nor does it in any way indicate a lack of bona fides. Such consequences necessarily arise from any prohibition of development which, as I will show below in the context of the fourth ground of appeal, the Act expressly contemplates.” On this issue, Meagher JA (at paragraph [179]) and Powell JA (at paragraph [187]) agreed with Spigelman CJ. The consequences of the breach found by him were discussed by Spigelman CJ at paragraphs [33]–[37] (with footnotes omitted): “33 In Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ considered the effect on the validity of an exercise of a statutory power of a failure to comply with an aspect of a statutory scheme. Their Honours said: ‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its

subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issues.’ [91] 34 Their Honours went on to accept the analysis in Tasker v Fulwood (1978) 1 NSWLR 20, 23–24, in which this Court rejected the traditional distinction between ‘directory’ and ‘mandatory’ requirements and posed the test in the following terms: ‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. … In determining the question of purpose regard must be had to the language of the relevant provision and the scope and object of the whole statute’. (Tasker v Fulwood, 24) 35 This approach has long been adopted by this Court and it has now been authoritatively approved in the Project Blue Sky judgment [93]. 36 The Appellant submits that, subject only to s 35, the intention of the Parliament was to invalidate any instrument which failed to comply with the scheme for public notice and exhibition found in Part III Division 4 of the EPA Act. Clause 13(3) was not included in the draft LEP when public notice and exhibition occurred under s 66 of the EPA Act. Clause 13(3) was never publicly exhibited. 37 The importance of the process of public consultation in the formulation of local government plans has long been recognised. See eg Scurr v Brisbane City Council (No. 5) (1973) 133 CLR 242, 251–252, a judgment which was concerned with the City of Brisbane Town Planning Act, but which has been cited on numerous occasions in other jurisdictions since that time. The Appellant referred to a number of cases in which the failure to

perform a statutory requirement led to invalidity. Each case must turn on the particular statutory regime.” Meagher JA and Powell JA did not express a view on this question as they found there was no breach, and hence, the situation did not call them to address the consequences of a breach.

¶14-040 John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning — amendment to a Local Environmental Plan after exhibition In John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213 (John Brown Lenton), Cowdroy J considered a challenge to Draft Amendment No 25 to the Blue Mountains LEP 1991. The Council resolved to prepare a draft LEP to impose additional restrictions on development in land zoned Residential Bushland Conservation Zone. The Director issued a s 65 certificate and the draft plan was publicly exhibited. Following the exhibition and consideration by the Council, the Council resolved to amend the draft LEP and then submit the draft LEP to the Director. At the time of the proceedings, the draft LEP had not been made by the Minister. One of the grounds of challenge was that the final draft LEP was so different from the exhibited draft LEP that it amounted to a fresh plan. Cowdroy J referred to the NSW Court of Appeal decision in Leichhardt No 2 (see Chapter ¶12). He then provided a summary of the differences between the exhibited draft LEP and the final draft LEP in relation to aims, building site cover on lots, the number of lots per hectare, subdivision and the identification of development excluded land resulting in an increase in land which could not be developed. Cowdroy J held at paragraphs [41] and [45]–[47] as follows: “41. It is apparent that there have been numerous alterations to the exhibited draft plan. Upon analysis, a change in philosophy can be discerned in the formulation of many of the development criteria. In most instances, the changes are reflective of council’s

desire to render the criteria more prescriptive. Such changes also reflect thoughtful measures for the protection and conservation of the bushland environment. … 45. The process provided by Pt 3 invites public participation, being exhibition and the receipt of submissions in relation to the draft LEP. Due to the numerous and substantial changes that were made to it the final draft LEP is a different plan from that which was exhibited. Whilst council may make changes which are of significance (Vanmeld), in this instance the totality of such changes results in an LEP which bears little or no resemblance to that which was exhibited. In Vanmeld only one significant change was made which did not alter the character of the plan (see Vanmeld per Meagher JA at 114; Spigelman CJ at 91). The draft LEP has its genesis in the exhibited draft plan but it has been transformed into a different plan. The result is analogous to that found by the Court of Appeal in Leichhardt [No 2], namely that the draft LEP cannot be said to be the result of the process provided by Pt 3 of the Act. 46. The appropriate procedure would have been to re-exhibit the draft LEP. Public participation is an important objective of the Act and should be regarded as crucial to the transparency and fairness of the plan making process (see Scurr and Ors v Brisbane City Council and Anor (1973) 133 CLR 242 at 252). In Carstens v Pittwater Council [1999] NSWLEC 249 at [20], Lloyd J drew attention to the need to interpret statutes by reference to their objectives. In the instant case the relevant objective is s 5(c) which states: — ‘(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.’ 47. Principle 10 of the Rio Declaration and Agenda 21 of the United Nations Conference on Environment and Development 1992 acknowledges the desirability of public participation in management of the environment. The Rio Declaration is not legally binding in Australia but it serves as a reminder that the

provisions of Pt 3 of the Act ensuring public participation in the making of a local environmental plan should be strictly observed.” Cowdroy J declared that the Draft Amendment No 25 to the Blue Mountains LEP 1991 failed to follow the provisions of the EPA Act, and he restrained the Minister and Council. John Brown Lenton follows Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 (Leichhardt [No 2]) (see Chapter ¶12) and makes it clear that an LEP which was made after numerous and substantial changes by the Council from the draft publicly exhibited would result in an LEP bearing little or no resemblance to that which was exhibited and hence was a different plan. Such a plan would be invalid without re-exhibition as it had not complied with the requirements under Pt 3 of the EPA Act.

¶14-050 Bryan v Lane Cove Council — consideration of a challenge to the validity of an amendment to a Local Environmental Plan In Bryan v Lane Cove Council [2007] NSWLEC 586 (Bryan), Jagot J in the NSWLEC considered a challenge to the validity of Amendment No 62 to the Lane Cove LEP 1987. The Council prepared, obtained a s 65 certificate and publicly exhibited a draft LEP applying to the entire LGA, the effect of which would be that covenants would not apply to the extent necessary to enable development (the subject of a consent) to be carried out. The Council received opposition to a general power to suspend covenants and resolved only to proceed with a draft LEP suspending the covenants in relation to two properties at Longueville. The Council sought a s 65 certificate for a new draft LEP applying only to the two properties. The Department decided to proceed by way of altering the draft LEP already exhibited, and this altered LEP was duly made by the Minister applying only to the two properties in Longueville. Proceedings were commenced challenging the validity of the LEP by a neighbouring landowner. Jagot J referred to the decision of the NSW Court of Appeal in Leichhardt [No 2] and said at paragraphs [21]–[31] as follows:

“21 It will be apparent that regional environmental plans, in common with local environmental plans, must be publicly exhibited. The one class of instrument not subject to this public exhibition requirement is State environmental planning policies (see Div 2 of Pt 3 of the EPA Act). Under s 49 the DirectorGeneral may amend a draft regional environmental plan and may, if the Director-General thinks fit, publicly exhibit that amended draft regional environmental plan. Under s 68(3) to (3B) a council may make any alterations it considers are necessary to a draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing even though the alteration need not relate to any submission and may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered. The similarity of these provisions, despite the power being one of ‘alteration’ with respect to local environmental plans and ‘to amend’ with respect to regional environmental plans, caused the respondents to accept that the principles in Leichhardt Council v Minister for Planning [No 2] applied and could not relevantly be distinguished. The respondents’ concessions were thus consistent with the approach to local environmental plans in Vanmeld (at [48] and [184]), John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning and Ors (1999) 106 LGERA 150 and Taperell v Randwick City Council (2000) 108 LGERA 309 (which concerned a development control plan). They were also consistent with the fact that the majority in Leichhardt Council v Minister for Planning [No 2] use ‘amend’ interchangeably with ‘alter’ (for example, at 84). 22 In Leichhardt Council v Minister for Planning [No 2] Priestley JA, with whom Sheller JA agreed, said that it was necessary to compare the publicly exhibited draft plan with the plan made by the Minister ‘to see what the differences are between them, and how important they are’ (at 84). … 23 This approach was consistent with other decisions concerning powers to modify or alter an instrument. Thus a power to ‘modify’ a development consent has been held to authorise alterations

‘without radical transformation’ (for example, Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474, Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [76], [84] and [105] citing Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43 at 61). 24 The Minister submitted that the differences between draft Amendment No 62 as exhibited and as made were not outside the power of alteration in s 68(3). The differences were twofold. First, there was a slight change in wording between the manner in which a covenant is to be suspended. … Secondly, there was a difference between the land to which the exhibited draft and Amendment No 62 as made applied. … ... 27 Although the approach of Priestley JA in Leichhardt Council v Minister for Planning [No 2] involved conclusions based on an overall impression reached by comparison between the exhibited draft and the plan as made, there was no suggestion in the reasons (or any later decision) that the courts should defer to the opinions of the Director-General, the Minister (in that case) or the Council (in this case). To the contrary, Priestley JA said that to adopt the Minister’s submissions in that matter would make the process ‘dependent on how much notice the Minister was prepared to take of it’ (at 88). A similar approach is necessary in this case. 28 I do not accept the Minister’s submissions. I am satisfied that, whatever descriptive formula used, Amendment No 62 as made was not the product of an alteration within the meaning of s 68(3) and was never exhibited as required by s 66 of the EPA Act. Amendment No 62 as made involved differences of such significance that the plan made by the Minister could not be said to be an outcome of the Pt 3 Div 4 process. It was a different plan and made the planning law substantially different. The exhibited draft applied to the whole local government area. It empowered

(or purported to empower) the Council to determine that any covenant imposing restrictions as to the development of land shall not apply, to the extent necessary to serve that purpose, to the development. Amendment No 62 as made applies to two lots comprising the one parcel of land. It provides that any covenant imposing restrictions as to the erection or use of buildings on that land for certain purposes, to the extent necessary to serve that purpose, shall not apply to that development. 29 Considered in terms of substantive operation and effect, the two instruments bear no real relationship to each other. … 30 This case involves the same considerations. The residents and ratepayers of Lane Cove were given the opportunity to make submissions through the mandated public exhibition process about a draft plan that would empower the Council to quash all restrictive covenants on any parcel of land in the local government area to the extent necessary to enable development to be carried out. They ended up with a plan that would quash covenants on two lots, comprising one parcel, to the extent necessary to enable development on that land to be carried out. The applicant was given the opportunity to make submissions through the mandated public exhibition process about the draft plan, the effect of which would have been to enable the covenants burdening and benefiting both her neighbour’s land and her own land to be quashed. The applicant ended up with a plan that left her with the covenant burdening her own land but removed the covenant benefiting her land to the extent necessary to enable her neighbour’s land to be developed. Once the true operation of the draft plan and plan as made are recognised, it is not possible to conclude that the latter is the product of an alteration of the former. In particular, the latter cannot be characterised as a mere subset of the former in terms of its operation and effect. Properly characterised it has a significantly different character, substance and legal effect. This is so irrespective of whether or not the covenants benefiting and burdening the land within DP 29396 are characterised by mutuality (such as within a scheme of development). Amendment

No 62 as made is not a product of the process Div 4 of Pt 3 of the EPA Act required.

31 Consistent with the respondents’ proper concessions, it follows that Amendment No 62 was never exhibited as required by s 66 of the EPA Act. This involved a breach of an ‘essential’, ‘imperative’ or ‘inviolable’ limit or restraint in the EPA Act, against which s 35 does not protect. Accordingly, the applicant is entitled to the declaration sought.” Bryan again followed the cases of Leichhardt [No 2] (see also Chapter ¶12) and John Brown Lenton in relation to the extent of changes which may be made by a council or the Minister to a draft LEP. Jagot J in Bryan noted that, in comparing the exhibited draft LEP to the final LEP, one looks at differences in “character, substance and legal effect”. In considering the power to amend a draft EPI after public exhibition, Craig J in the NSWLEC held that Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 explained further the judicial tests on the extent of this power at paragraphs [155]–[158] and [237] as follows: “155 The manner in which the applicant frames this ground of challenge has its foundation in the judgment of Priestley JA (Sheller JA agreeing) in Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78. In that case the Court was required to adjudicate upon a regional environmental plan that had been made in terms that differed from those in which the draft instrument had been exhibited. Section 49 of the EPA Act in the form that it then took authorised the Director of the Department to amend the draft instrument following exhibition and ‘if he thinks fit’ publicly exhibit the amended instrument prior to recommending its making by the Minister. No exhibition of the amended draft regional plan had been undertaken. The difference between the provisions of the draft regional plan as exhibited and the regional plan as made were described by Priestley JA as being ‘stark’ (at 86) and ‘significant’ (at 87). Ultimately, his Honour embraced the test advanced on behalf of the applicant Council in challenging the validity of the regional plan to the effect that the power of amendment could not be exercised so as to achieve a difference

‘of such significance that the plan made by the Minister could not be said to be an outcome of the Pt 3 Division 3 process.’ The test embraced by his Honour accepted that if the provisions authorising alteration were interpreted so that the Plan able to be made by the Minister was — ‘so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan, then Pt 3 Division 3 would be emptied of any substance.’ 156 Although the provisions of s 49 of the EPA Act, as considered in Leichhardt (No 2) are not identical to those found in s 68, it has been accepted that there is sufficient similarity in substance so as to render the determination applicable to the provisions of Div 4 of Pt 3 of the EPA Act as they relate to the making of local environmental plans (Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78; John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213; (1999) 106 LGERA 150; Bryan v Lane Cove Council [2007] NSWLEC 586; (2007) 158 LGERA 390 at [21]). 157 The Minister accepts that the Panel’s power to make amendments pursuant to s 68(3) without re-exhibiting the amended draft under s 69(3B) was circumscribed by the principles laid down by the Court of Appeal in Leichhardt Council v Minister for Planning (No 2). He acknowledged that the power of alteration could only be made if kept within the confines of the process required to be undertaken and observed in Div 4 of Pt 3 of the EPA Act. However, as the Minister submits, the power to make alterations to a draft local environmental plan under s 68(3) is an important aspect of the public participation process. 158 I accept that this is so and I also accept that it cannot have been a purpose of the legislation to require re-exhibition of a draft local environmental plan following each and every alteration made to that draft in response to a consideration of public submissions. There is a balance to be achieved between a response to submissions received by exercising the power of amendment and the need to ensure that the end product in the

form of the statutory instrument is not so different ‘in important respects’ from the draft instrument that has been exhibited. The determination as to where this balance lies involves a consideration of the amendments and their significance in the context of the instrument as a whole. … 237 There is no bright line that determines the point beyond which the process of alteration made pursuant to ss 68(3) or 70(1) to a draft planning instrument will require the altered draft to be re-advertised. As the authorities earlier cited make clear, the determination is made by considering the extent of difference ‘in important respects’ between the instrument as made and the draft which was exhibited.” In Friends of Turramurra, it was held that the test of whether the alterations made by the Minister to an EPI are valid is: • whether the plan as made differs from the publicly exhibited draft in “some important respect”, and • to determine whether an alteration differs in some important respects, one must consider the amendments and their significance in the context of the instrument as a whole.

¶14-060 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning — consideration of a challenge to the validity of an amendment to a Local Environmental Plan As previously looked at in Chapters ¶11 and ¶13, in the case of Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 (Gales Holdings), the NSW Court of Appeal considered a challenge to the validity of an amendment to the Tweed LEP to rezone certain land at Chinderah from Special Uses to Industrial. One of the contentions in the appeal was whether the Council had failed to take into account a relevant consideration when it decided to adopt the LEP after exhibition and submit it to the Director-General.

The consideration related to a report commissioned by the Council from Core Economics, entitled “Tweed Shire Retail and Centres Strategy”. This was provided to the Council in draft form in October 2003 and in final form in January 2004. Its relevance related to the request by the appellant (and landowner) to the Council that the land should be rezoned for Commerce and Trade permitting retail development. The Core Economics report identified the land at Chinderah as being ideal for a District Centre. The Council decision to adopt the draft LEP under s 68 occurred in March 2004 after the Core Economics report was available. The Council’s decision was based on a February 2004 report by another consultant, GeoLINK. The GeoLINK report asserted that the Core Economics retail study might provide a greater level of certainty on the rezoning request for a Commerce and Trade zoning, but GeoLINK erroneously stated the findings of the report were not available and the Council officers did not correct this error. Tobias JA (with whom Beazley JA concurred) stated at paragraphs [174] and [176]: “174 In the foregoing circumstances, for the Council to proceed on the basis of material that was clearly incomplete and in circumstances where both it (as a collegiate body) and GeoLINK were ignorant of the existence of the Core Economics’ final report received some six weeks prior to the meeting at which the critical decision was to taken, the conclusion that the Council was bound to but failed to take into consideration the Core Economics’ final report which may (not must) have had a direct bearing upon the its ultimate decision is compelling. ... 176 It follows that the Council’s decision of 3 March 2004 to submit draft Amendment 14 in the form in which it was exhibited and without alteration was vitiated by error and was thus invalid. The Council did not contest the proposition that that invalidity, if established, infected the balance of the statutory process as a consequence whereof his Honour ought to have declared Amendment 14 invalid.”

Basten JA dissented from this conclusion of the majority of the NSW Court of Appeal (see paragraphs [184]–[199]). The following propositions in relation to consideration by the Council under s 68 (and, by inference, the Director-General and the Minister under s 69 and s 70) can be derived from the case of Gales Holdings. In considering a draft LEP, the Council is bound by the principles in the case of Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (see Chapter ¶15) and is not entitled to ignore material which has actual constructive knowledge and which has a direct bearing on the matter, and to proceed on the basis of material that may be incomplete, inaccurate or misleading. Where a council proceeds to adopt a draft LEP on such a basis, the resulting decision is invalid.

DEPARTMENTAL AND MINISTERIAL ROLE IN MAKING A LOCAL ENVIRONMENTAL PLAN ¶15-010 Extent of powers of the Director and Minister Sections 69 and 70 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), as originally enacted, addressed the role of the Department and the Minister in the making of a Local Environmental Plan (LEP) once submitted by the council. Of importance is the extent of power of the Minister to alter or amend the plan as submitted by the council. The role of the Director under s 69 in reporting to the Minister on a draft LEP submitted by the council under s 69 was confined to largely technical matters, such as: • whether the draft LEP was inconsistent with any State Environmental Planning Policy (SEPP), Regional Environmental Plan (REP) or s 117 direction • (if inconsistent) whether the inconsistency was “justifiable in the circumstances”, and • whether the council had complied with the public involvement

requirements of the EPA Act. In addition to these technical matters, the Director was required to report to the Minister on the relationship between the draft LEP and other proposed or existing Environmental Planning Instruments (EPIs) or any relevant s 117 direction. This enabled the Director to look beyond inconsistencies and consider and report on the broader interaction. In addition, the Director was empowered to report on such other matters relating to the draft LEP as the Director considered appropriate. The Minister’s powers under s 70 in relation to a draft LEP were quite narrow. In essence, the Minister had six options available: • Option 1 — To make the draft LEP as submitted by the council (s 70(1)(a)(i)). • Option 2 — To make the draft LEP as submitted by the council with “such alterations as he thinks fit relating to the relationship between the plan and any other environmental planning instruments, and any relevant directions under s. 117, applying to the land to which the plan applies” (s 70(1)(a)(ii)). The Minister’s power to alter had to relate to the relationship between the draft LEP and any other EPI or s 117 direction applying to the land. It is noted that the power of the Minister to alter was not limited only to inconsistencies with an SEPP, REP or s 117 direction. It was expressed in broader terms relating to the “relationship” and not only to SEPPs, REPs and s 117 directions, but any other EPI including another LEP or indeed a deemed EPI. However, outside the area of the “relationship” between the draft LEP and other EPIs and s 117 directions, the Minister had no general power to alter the draft LEP. In addition, any alterations made by the Minister even complying with the abovementioned limitations could not be so wide as to constitute a new LEP rather than an alteration of the draft LEP. • Option 3 — To direct the council to re-exhibit in part or whole the draft LEP that had been altered either by the Minister under Option 2 or by the council following the exhibition of the draft.

Thus, this option could be exercised by the Minister in combination with Option 2 or as a stand-alone option, where the alteration in question was made by the council and not the Minister (s 70(1)(b) and s 70(3)). • Option 4 — The Minister may decide not to proceed with the draft LEP (s 70(1)(c)). However, where the Minister decided not to proceed with a draft LEP, the Minister was required to give such directions to the council as he considered necessary in relation to that decision (s 70(6)). • Option 5 — The Minister may, in making an LEP, decide to exclude certain matters which he considers required further consideration, provided the deferred matter would not prejudice the making of the LEP (s 70(4)). • Option 6 — The Minister may make an LEP with such alteration as he thinks fit, providing that “such alterations … do not affect the substance of the provisions of the plan as submitted by the Council or as altered” by the Minister under s 70(1) (s 70(8)). This option enabled the Minister to make drafting or formal alterations, provided these alterations did not affect the substance of the draft LEP. Where the Minister used Option 1, 2, 3, 4 or 5, the Minister was required to inform the council of his decision and to provide reasons for the decision. In addition, he might give directions to the council to give public notice of his decision (s 70(7)).

¶15-020 Ku-ring-gai Municipal Council v Minister for Planning and Environment and Mirvac Pty Ltd — powers of the Minister In Ku-ring-gai Municipal Council v Minister for Planning and Environment and Mirvac Pty Ltd (1983) 49 LGRA 223, Cripps J commented on the powers of the Minister in relation to draft LEPs at p 234 as follows:

“Local environmental plans must be made in accordance with the draft (or with such alterations as the Minister thinks fit having regard to the matters referred to in s.70) and the Minister may not make any alterations other than those that do not affect the substance of the provisions of the plan submitted to him by the council (except, of course, any alterations in respect of matters relating to State environmental planning policies or regional environmental plans). It can be seen, therefore, that the E.P.A. Act, in terms, gives to the councils the right to determine the content of local plans. The Minister, is not, of course, obliged to make the local environmental plan but nor is he, subject to matters of State and regional significance, empowered to make a plan inconsistent with that submitted by the council.” This case went on appeal to the NSW Court of Appeal in Bedford v Ku-ring-gai Municipal Council (1983) 50 LGRA 437. Mahoney JA (with whom Samuels JA concurred) said at p 449: “The submissions made in this regard took several forms but, in the main, they were based upon the contention that it was inconsistent with the principle upon which the Environmental Act is based for the Minister so to do. It was submitted that that Act has adopted the principle that the contents of environmental planning instruments, and in particular of local environmental planning instruments, are to be determined by the council rather than by the Minister, that the contents of the plan which the Minister here made were not determined by the council, and that the two Acts here in question should not be interpreted in a way which allowed this to be done. It was upon a similar basis that the learned judge of the Land and Environment Court held the making of the plan invalid. It is not necessary to determine whether there is such a principle as was suggested in relation to the making of local environmental planning instruments. I shall, without deciding the question, assume that there is.”

¶15-030 Shellharbour Municipal Council v Minister for Planning and Environment — challenge over the validity of a Local Environmental Plan In Shellharbour Municipal Council v Minister for Planning and Environment (1985) 58 LGRA 186 (Shellharbour), Bignold J in the Land and Environment Court of NSW (NSWLEC) considered the provisions of s 70 of the EPA Act as originally enacted. In these proceedings, the Council challenged the validity of the Shellharbour LEP No 22 as made by the Minister based on the alterations made by the Minister. The proceedings related to some 600 hectares of land called site 7200 owned by the Housing Commission of NSW and the Land Commission of NSW. Site 7200 had been the subject of a previous Interim Development Order (IDO) which required development to be in accordance with a specified plan. The provisions in the previous IDO were to be consolidated with other plans into a new draft LEP. That draft required in cl 38 that site 7200 not be developed other than in accordance with a Development Control Plan (DCP) and further deemed the plan specified in the IDO to be a DCP. When the new draft LEP was reported to the Minister under s 69, the Director recommended that part of the draft LEP in cl 38 relating to the specified plan for site 7200 be deferred for further consideration as the Minister did not wish to retain reference to the specified plan and similarly cl 38 be also deferred. The Minister adopted the recommendations and made Shellharbour LEP No 16. Subsequently, after the Council and the Minister failed to reach any agreement, the Minister on the recommendation of the Director proceeded to make an LEP for the deferred site 7200 and making cl 38 but with the deletion from the clause of the reference to the specified plan. The basis of dispute between the Council and the Minister lay in the Minister’s attempt to reduce the standards applicable to the Land Commission subdivision to seek to enhance affordability. The Council commenced proceedings challenging the Minister’s power to alter the draft plan. Bignold J said at p 196–197: “The principal question raised by these proceedings is whether

the powers conferred on the Minister by s.70 of the Act are sufficiently wide to authorise the making of LEP No. 22. This is purely a legal question, involving a question of statutory construction. No question here arises as to whether the plan as made by the Minister is or is not preferable in a planning sense to that submitted by the applicant. I have posed the question thus, since it is conceded by the applicant that the relevant question is one of power and not one of the exercise of power. In my opinion, properly construed, s.70 did not and does not authorise the making of LEP No. 22. I shall briefly state my reasons for this conclusion. First I do not accept the respondent’s submission that on the facts of this case there were two separate deferred matters within the meaning of ss.70(4) and (5). … … I do not think it can be the proper meaning where each of the deferred matters is integrally related such as is here the case. By severing what can only be regarded as indivisible deferred matters the respondent’s submission produces, by virtue of the separate exercise of the powers conferred by s.70(1)(a)(i) and s.70(1)(c) respectively, a result totally at odds with the applicant’s submitted draft plan and, if it is relevant, totally at odds with the applicant’s express object. A construction of the statutory powers which accommodates such an artificial severance of the content of the submitted draft plan with the resultant effect of approbation and reprobation though available perhaps literally, cannot in my opinion be ultimately sustained if there be a alternative construction which commends itself, as providing a more reasonable and workable interpretation. Acceptance of the respondent’s construction would enable the Minister to achieve indirectly what he was not authorised to achieve directly and thus offend the ancient principle that denies such a result. [p 197] In my opinion, where as is here present, it is correct to identify an

indivisibility of substance in the deferred matter, notwithstanding a plurality of form, s.70(50) read with s.70(1) does not authorise the consideration of such matter as separate matter so as to bring about a severance or division of that matter. The legislature cannot be presumed to have intended such a result of which is manifestly contrary to the clear legislative division of responsibility and authority for local planning matters between local councils on the one hand and the Minister and his department on the other. For the purpose of discerning this legislative intention I am content to adopt what was said by Cripps J in Ku-ring-gai Municipal Council v Minister for Planning and Environment; being views not brought in question on appeal (see (1983) 50 LGRA 437 at 449). But even if the respondent’s suggested construction of s.70(4) and (5) be correct it cannot be concluded that the making of LEP No. 22 is authorised by s.70(1)(a)(i) because that plan is not the result of the Minister making the plan ‘in accordance with the draft plan as submitted under section 68(4)’ (as s.70(5) deems the deferred matter to be). The plan as deemed by s.70(5) to be submitted included cl. 38 and cl 13 (in its application to site 7200). There being no correspondence between the plan as made and the plan as deemed to be submitted it follows that s.70(1)(a)(i) cannot be successfully invoked to authorise the making of LEP No. 22. Secondly I do not consider that the deletion of draft cl. 38 is sustainable by reference to the power conferred by s.70(1)(a)(ii). It may be accepted that the qualification of the type of alterations that may be made under this head of power is widely drawn by virtue of the words ‘as he thinks fit relating to the relationship between the plan and any other environmental planning instruments … applying to the land to which the plan applies.’ However I do not consider that qualification to be satisfied in this case, where the only suggested relevant instrument is IDO No. 30. I say this for two reasons but principally because IDO No. 30 is not an instrument ‘applying to the land to which the plan

applies’ since upon the making of the plan (LEP No. 22). IDO No. 30 ceases to apply to the same land (vide cl. 4 of LEP No. 16). The second reason is that there can be no relationship between the deletion from the draft plan of cl. 38 on the one hand and IDO No. 30 on the other, where the latter is to cease to apply to the subject land upon the making of the plan. The deletion of draft cl. 38 would represent a meaningful relationship with IDO No. 30 if the latter (which contains the original version of draft cl. 38) were to continue to apply. But that is not the case here, where the result achieved is the deletion of both draft cl. 38 and the original form of that provision contained in cl. 4 of IDO No. 30. Finally I do not think that the deletion of draft cl. 38 was or is authorised by s.70(8) because, in my opinion, draft cl. 38 was indisputably a provision of substance in the plan submitted by the applicant in so far as it governed development of site 7200. In so holding I reject the respondent’s argument that draft cl. 38 ‘was unnecessary having regard to ss. 72 and 90.’ The form of cl. 38 makes it clear that it was not intended to operate as if it were merely a development control plan in force under s.72 of the Act.” Bignold J’s decision in Shellharbour held: • the power to defer matters does not authorise the severance of otherwise integrally related matters and the revival of one but not another such as to enable the Minister to achieve indirectly what he was not authorised to achieve directly. • there is a clear legislative division of responsibility and authority for local planning matters between councils and the Minister and his department. • the Minister’s decision was not in accordance with s 70(1)(a)(i) as there was no correspondence between the plan as made and the plan as submitted. • the Minister’s decision was not in accordance with s 70(1)(a)(ii) as the alterations were not relating to the relationship between the draft LEP and another EPI. There can be no “relationship” if the

other EPI ceased to apply to the land when the draft LEP was made. • the change made was clearly one of substance and thus not authorised by s 70(8). Bignold J cited a meaning of substance that prevents variations which are real, even though they may be immaterial to the substantial objects of the legislation (see at p 198 in the case). Following the Shellharbour decision, the terms of s 70 of EPA Act were amended by the NSW Parliament. The Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments) changed the powers of the Minister in relation to a draft LEP submitted by a council. Section 70(1) (a)(ii) was amended so that the Minister now had the power to make an LEP: “70(1)(a)(ii) in accordance with that draft plan with such alterations as he thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning.” The words underlined were additions deleting the former words “the relationship between the plan and any other environmental planning instruments and any relevant directions under s 117, applying to the land to which the plan applies” (see 1985 Amendments, s 5 and Sch 3(16)). In addition, a technical amendment was made to s 70(7). In his Second Reading Speech on the 1985 Amendments, the Minister for Planning and Environment, Mr Bob Carr MP, said on 26 November 1985:1 “The amendments also include: Improvements to the process for the preparation of draft environmental planning instruments. This will facilitate the planning process without removing its essential feature which is to allow equal opportunity for all members of the community to participate in planning decisions.”

The 1985 Amendments significantly widened the Minister’s powers to alter a draft LEP submitted by a council. No longer were the Minister’s powers to alter constrained by the relationship of the draft LEP to other EPIs and s 117 directions. Now the Minister could amend a draft LEP on any matter which, in the Minister’s opinion, was of significance for State or regional environmental planning. No longer was the Minister limited only to the relationship with already existing EPIs and already articulated planning policies and s 117 directions. The Minister could make alterations to a draft LEP, provided the alteration was in his opinion of significance for State or regional environmental planning. No longer was the Minister under an obligation to have laid out such matters in SEPPs, REPs or s 117 directions. No longer could a council understand clearly, by reference to existing EPIs and s 117 directions what were the over-riding constraints on local planning. And of course there was no longer an obligation on the Minister to put these matters of significance for State or regional environmental planning in SEPPs, REPs or s 117 directions. However, the Minister’s power to alter a draft LEP was constrained by the requirement that such alterations related to a matter which, in the opinion of the Minister, was of significance for State or regional environmental planning. The question of the meaning of “significance for State or regional environmental planning” will be considered later in Chapters ¶26–¶28. The 1985 Amendments commenced the breakdown of a clear legislative division of responsibility and authority for local planning matters between councils and the Minister. Albeit, the step was small, with the imposition of a distinction between matters of significance for State and regional environmental planning being the province of the Minister and his Department, while matters of significance for local environmental planning were the responsibility of local councils. Footnotes 1

NSW Parliament, 26 November 1985, Legislative Assembly Hansard, p 10638.

¶15-040 Leichhardt Council v Minister for Planning [No 2] — consideration of extent of changes The broader question of the extent of changes which could be made by the Minister and a council to a draft EPI, outside of the specific context of s 70 of the EPA Act, was considered by the NSW Court of Appeal in Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 (Leichhardt [No 2]) (see also Chapter ¶12). The facts in this case were outlined in the previous discussion on consultation in the preparation of an EPI. In Leichhardt [No 2], the Minister had placed on public display a draft REP which included detailed height controls for the former industrial sites mostly in Balmain proposed for multi-unit housing. However, in the REP finally made by the Minister, there were no building height restrictions. The Council contended that the Minister’s power to alter a draft REP after exhibition must be confined to an outcome of the public exhibition process. The Minister contended the power of alteration was much wider, so long as the changes were not such as to constitute an entirely fresh plan, rather than an altered plan. The majority of the NSW Court of Appeal (Priestley JA and Sheller JA, with Cole JA in dissent) held the differences between the draft REP as exhibited and the REP as made were so great that the plan was not in all important respects the product of the process under Pt 3 of the EPA Act and hence it was invalidly made. Priestly JA (with whom Sheller JA agreed) said at p 86 and 88 as follows: “The differences, so far as building heights are concerned, are stark. In the Minister’s Greater Metropolitan Regional Environmental Plan No. 1 there are no building height restrictions. The references to development control plans by which building heights would be controlled have vanished. Further, no relevant development control plans were brought into effect when the Minister made the plan on 21 December 1993. … [p 88]

… I must return to the tests submitted by the parties for deciding what alterations to a draft regional environmental plan, whether made by the Director or by the Minister, take it outside the Minister’s power to make under s. 51. Application of the test contended for by the Minister would, to my mind, lead to the result that the making of the plan was within power; the Council’s test would lead to the opposite result. It seems to me that the kind of test contended for by the Council (at 83–84 above) is much more in line with the evident purpose of Pt 3 div 3 than the test proposed by the Minister (at 84 above). The Minister’s test would make the usefulness of the Pt 3 div 3 process dependent on how much notice the Minister was prepared to take of it. I think the process was designed to have more input into the eventual plan than that. My conclusion therefore is that the Minister did not have power to make the plan which he made on 21 December 1993. It was not a plan which in all important respects was the product of a Pt 3 div 3 process. It was a plan which in all respects but one, in my opinion, was a proper conduct of a Pt 3 div 3 process but in one important respect, that of height controls was not. That is a matter of such potential importance to the future development of the land to which the Greater Metropolitan Regional Environmental Plan No. 1 applied that the Greater Metropolitan Regional Environmental Plan No. 1 cannot, in my opinion, be said to be a plan which the Minister had power to make under s. 51(1).” Cole JA in dissent agreed with the test proposed on behalf of the Minister, namely that the Minister had wide powers of alteration, provided that what was ultimately made was in fact an altered plan, not a fresh plan (see p 101 in the case), although Cole JA held that it was the Director who altered the draft REP and not the Minister and even so the changes were insubstantial (see p 104 in the case). Thus, in Leichhardt [No 2] the NSW Court of Appeal held that the power to alter must be the product of the process of its preparation. Presumably by this, the majority meant that any alterations must be properly referable to the public exhibition and submission process

and/or the consultation process, although Priestley JA is less than specific on this point. Although the decision in Leichhardt [No 2] relates to REPs and not LEPs, the principles are equally applicable to the power to amend a draft LEP both at the council consideration level under s 68 and at the Ministerial level under s 70. Following the decision in Leichhardt [No 2], the NSW Parliament amended the provisions relating to both REPs and LEPs in the Environmental Planning and Assessment Amendment Act 1996 No 44 (NSW) (1996 Amendments) to the EPA Act. The 1996 Amendments further altered the power of the Minister in making an LEP by inserting a new s 70(1A) which provided as follows: “70.(1A) Without limiting subsection (1)(a)(ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister’s consideration of the matters in the draft plan.” In addition it clarified s 70(3) which gave the Minister the discretion to direct a council to publicly re-exhibit whole or part of a draft LEP that had been altered, to make it clear that the Minister need not exercise that power (in the 1996 Amendments, see s 3 and Sch 1[4] and [5]). The effect of the 1996 Amendments was to overturn the decision in Leichhardt [No 2], so far as it confined the power to alter a draft LEP (and to alter a draft REP) to matters responsive to submissions and to explicitly state that the power to alter is not confined to alterations arising out of the preparation process under Pt 3 or the public submission process, but did not change the requirement that alterations cannot be such that what results is a new plan, rather than an altered plan.

¶15-050 Belongil Progress Association Inc v Byron Shire Council — challenge to the validity of an amendment to

a Local Environmental Plan In Belongil Progress Association Inc v Byron Shire Council [1999] NSWLEC 271, Cowdroy J in the NSWLEC heard a challenge to the validity of an amendment to the Byron LEP. One of the grounds of the challenge related to a breach of a direction from the Minister under s 117 of the EPA Act requiring an environmental study for a draft LEP altering existing zonings on the coast. The Director-General, in granting a s 65 certificate, explicitly agreed that no environmental study was required. Cowdroy J noted that a departure from a s 117 direction may be made if it is explained under s 68(4). However, Cowdroy J noted that s 69 imposed an obligation on the DirectorGeneral in his report to the Minister to include a statement identifying any inconsistencies with any s 117 direction and whether it is justifiable. Cowdroy J held at paragraphs [22], [24]–[26] and [42]–[43] as follows: “22. The report pursuant to s 69 of the Act made in respect of Amendment no 66 states that an environmental study ‘was not required’. Whilst the report contains a reference to s 117 of the Act, there is no reference whatsoever to the direction nor to the fact that such direction required an environmental study. The report merely stated that ‘the proposal is consistent with the Coastal management provisions of the North Coast Regional Plan (REP Clause 32) and the Coastal Policy 1997’. … 24. No reference to such inconsistency was disclosed to the Minister as required by s 69. Had the Minister’s attention been directed specifically to the existence of the direction and of its requirements concerning an environmental study it might have been inferred that the Minister was prepared to ignore the direction. In the absence of such detail no such inference can be drawn. 25. The Minister, by s 70(1) may ‘after considering the Director’s report made under s 69’ make a plan or decline to do so. The Minister’s discretion is thus predicated upon compliance with the

requirements of s 69. Upon the evidence the Minister did not have before him the important information necessary for him to exercise his discretion properly. 26. Applying the test of statutory interpretation established in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841, it can be readily inferred that a failure to abide by a direction made pursuant to s 117 may not lead to invalidity if the Minister is informed of such details by the statement required by s 69. The obligation imposed upon the Director by s 69 is expressed in mandatory terms. If the Minister is not informed of the matters referred to in s 69, the factual basis for the exercise of the Minister’s discretion to make the LEP pursuant to s 70 is misleading. … 42. The Court has found that there have been breaches of the Act in the preparation of Amendment no 66. In summary, they constitute the failure to bring to the Minister’s attention council’s non compliance with the direction. … However injunctive relief is warranted in consequence of DUAP’s failure to inform the Minister of the non compliance with the direction. 43. The Act provides that the Minister may appoint an administrator to a council in circumstances where the provisions of a direction under s 117 is not fulfilled (see s 118). Such provision demonstrates the obvious significance of a Minister’s direction. To ignore both the direction and the fact that the Minister was never made aware of the failure to comply therewith when exercising power under s 70, would be to overlook fundamental requirements for the making of an LEP. These reasons justify the Court declaring Amendment no 66 to be invalid.”

¶15-060 Richmond v Minister for Urban Affairs and Planning — proceedings relating to a draft amendment to a Local Environmental Plan

In Richmond v Minister for Urban Affairs and Planning [2000] NSWLEC 23 (Richmond v Minister), Sheahan J in the NSWLEC heard proceedings in relation to Draft Amendment No 61 to the Byron LEP 1988 relating to a cluster-style rural residential development at Bangalow on the far northern New South Wales coast. A draft LEP was prepared by the Council, received a s 65 certificate and was publicly exhibited. Thereafter, the draft LEP was submitted by the Council to the Director. There was an issue regarding the draft LEP’s compliance with the North Coast REP 1988. The Director reported to the Minister under s 69 recommending that the Minister not make the LEP, and the Minister decided not to make the LEP. The issues in the case related to the adequacy of the Director’s report under s 69 and whether, having decided not to make the LEP, the Minister has the power to change his mind. In relation to the Director’s report under s 69, the applicant contended it was factually in error as to whether the Council had abandoned its rural residential strategy, and the error of fact infected the exercise of discretion by the Minister under s 70. It was further contended that the Minister should have made further inquiries in relation to facts which were readily available to him. The basis for the applicant’s contention was explained by Sheahan J at paragraphs [86]–[88]: “86. The Minister should have required proof of a Council resolution, and not relied simply on assertions of what occurred. To not inquire further was manifestly unreasonable (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors 162 CLR 24 at 41, Chan v Minister for Immigration & Ethnic Affairs 169 CLR 379 at 433), and was ‘unreasonable — and, therefore, an improper exercise of the power — because it lacked a legally defensible foundation in the factual material or in logic’. (Luu v Renevier (1989) 91 ALR 39 at 50). An opinion formed must not only be justifiable, it must be sound. Parramatta City Council v Pestell 128 CLR 305 at 323. 87. Mr Hale also relied on the doctrine expounded by Wilcox J in the Federal Court in Prasad v Minister for Immigration and Ethnic

Affairs (1985) 6 FCR 155, 65 ALR 549 and endorsed and applied by Toohey J in Videto & Anor v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167. In Prasad (at 168–70 and 562–3) Wilcox J said: ‘An intermediate position is that the court is entitled to consider those facts which were known to the decisionmaker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him.’ I have been unable to find any discussion in the authorities of this question, possibly because the facts will often be clear. Consequently, I express no more than a tentative view. But in principle, as it seems to me, the intermediate position is correct … A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision — which perhaps in itself, reasonably reflects the material before him — in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. 88. Mr Hale relied also on this comment made by the Full Federal Court in Luu (at 50):

‘But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision maker, there is readily available … other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.’” In response to this contention, the Minister’s submissions were outlined by Sheahan J at paragraphs [101], [122] and [125]: “101. In respect of the applicants’ Peko point, the Minister’s written submissions make the following points: ‘18. Even if references in the Report were erroneous (which is rejected): a. having identified relevant matters for the determination of the making of the LEP, the question of the weight to be given to those matters (as is the real approach adopted by the s.69 report) is a matter for the draftsman of the Report, and furthermore is not a matter properly the subject of a judicial review: see Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 41 per Mason J. … c. the scope of the Courts on judicial review does not include curing administrative errors. The Court’s role is limited to determining the scope of the exercise of the relevant power; i.e. to ensure that jurisdiction is not exceeded. But that role does not extend to revisiting the merits of the decision: see Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35–36. In this way it can be seen that provided the matters referred in the Report fall within jurisdiction, the applicant truly seeks that the Court substitute or revisit views referred to in the Report. Such is not the role of the Courts in judicial review. Errors contained within a proper exercise of the power are not and cannot be the subject of review: Minister for Aboriginal Affairs v Peko Wallsend, Ibid, Rosemount

Estates v Cleland (1995) 86 LGERA 1 at 17 & 19, and Anisminic v Foreign Compensation Commission [1969] 2 AC 147. 19. The applicant claims that references to the Guidelines and the REP were not reasonably open to the author of the Report. On no judicial formulation of what has become known as the test of Wednesbury reasonableness can it be said that such references were not open to the author of the Report: see for example the formulation of the Wednesbury test set out in Minister for Aboriginal Affair v Peko Wallsend, Ibid.’ … 122. Mr McClellan does not concede that any references in the report are erroneous but even if there were erroneous references in the report: (a) the question of weight given to identified relevant matters is a matter for the author and not properly the subject of judicial review. (Peko Wallsend at 41). (b) the Minister has an independent discretion to make or reject the LEP ie to accept or reject the recommendations. Acceptance of the recommendation does not taint the decision with any error in that report. (c) the court cannot revisit the merits of the Minister’s decision (Attorney General (NSW) v Quin (1990) 170 CLR 1). … 125. Mr McClellan goes further and says that even if there were such a factual error in the report, it would be an ‘error within jurisdiction’. In coming to a decision, a decision-maker is entitled to make a mistake, provided the decision does not become manifestly unreasonable. The court will only intervene if the decision is shown to be manifestly unreasonable. Mr McClellan’s submission is that any error found in the work of the tribunal

below must be so gross that its basis does not exist in law. In this case no inaccuracy in the Director’s report could be raised to that level.” In relation to these issues, Sheahan J held at paragraphs [105]–[108], [130] and [136]–[137] as follows: “Does the Prasad Doctrine apply? 105. There is no established obligation on the Department or the Minister to make further enquiries, given particularly the contents of the s 68 letter in this case. However, the Minister’s officer in fact made further enquiries and established the necessary inconsistency before the Minister made his decision. 106. In respect of the question of abandonment of the Strategy, the following comments of the Chief Judge in the context of a Prasad point taken in Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [1999] LEC 251 are apposite to this case, and I respectfully adopt them: ‘78. The present case is not such a case. There is no obvious material which, had the council made an inquiry, would have provided additional facts to it. The gathering of factual information of the social and economic effect of the proposed development had finished, and there were no additional facts ‘readily available’ or ‘centrally relevant’ on that issue. Rather, the position had been reached where the council, in the conventional manner, was required to assess the responses to its concerns provided by Fabcot, and to determine whether the risk of unacceptable social and economic impact had been mitigated. It was entitled to seek planning advice on that issue, and it was not unreasonable for the council to seek that advice from its own officer rather than from its consultants. 79. Nor was a revision of the Nowra CBD Strategy ‘readily available’ or ‘centrally relevant’. No evidence was adduced to show that a revision of the Nowra CBD Strategy would have provided the council with additional material. This was not a

case where it was obvious that additional facts would have become available to the council if it had awaited revision of the Nowra CBD Strategy — the council already had before it four reports on the social and economic effect as well as other material which I have outlined.’ 107. Like Pearlman J, I conclude in this case, therefore, that the principle set out in Prasad has no application. The challenge to the s 69 report 108. In Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319, Street CJ said (at 335): ‘The law is clear that a provision such as s.90(1) necessitates, as a precondition to the validity of a council’s decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision. All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court; it need not be shown to be of critical or decisive significance in the council’s decision; on the other hand de minimus non curat lex. In the third place the reference in each to ‘the council’ is to the council as a group; it is the council’s collective state of mind, as found by the court, which will be of critical significance.’ … 130. The court is satisfied that Mr McClellan’s submissions, in their various alternative formulations, correctly state the law and correctly apply it to the factual complexities of this case. …

136. I can find no error of law in the pursuit of the Part 3 processes in this case, nor in the failure of the Minister and his department to pursue any other enquiries before the Department made the relevant recommendations, and the Minister made his decision (Prasad, Schroders). 137. In so far as there may have been some error of a factual nature, in respect of the continued applicability or otherwise of the strategy, any such factual error cannot infect the legality of the Director’s s 69 report, nor that of the Minister’s independent decision based thereon. (Rosemount).” Additionally, the applicant contended that, despite the Minister having decided not to make the LEP under s 70, and having advised the Council of that decision, it was open to the Minister to revisit the decision. The applicant contended that s 48(1) of the Interpretation Act 1987 (NSW) applied, namely: “48. Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.” Sheahan J said at paragraphs [94]–[97]: “94. On the Interpretation Act point, Mr McClellan submits that Parkes must be looked at in its peculiar statutory context. Section 5 of the Interpretation Act means that a function may be exercised from time to time except to the extent that the contrary intention appears from the relevant Act. 95. Mr McClellan contends that strong policy considerations dictate that such a contrary intention is revealed in the EP & A Act. The objectives of the EP & A Act require orderliness in decision making and plan making. The Minister’s power to make an LEP is quite specific and is not given at large. An LEP cannot be made until the processes contemplated by the EP & A Act are satisfied. The legislature has specified a process which contemplates a decision made upon consideration of the s 69

report and not otherwise. The Minister has a duty to notify his decision and give reasons under s 70, so it is clear on the face of the statute that his decision must be final. The Departmental confirmation of the Minister’s decision must close the matter, and the DLEP document as it then stood cannot have a life beyond such a decision not to make it as a plan. 96. The Minister’s decision comes at the end of a protracted statutory process, involving the public, and the Minister can make his ‘final’ determination only after that process is exhausted. It is the only process by which an LEP can be made even though the Minister may have other powers of intervention elsewhere. Once the statutory power has been exercised the purpose for its creation has been fulfilled and the power is exhausted. See Leung v Minister (1997) 79 FCR 399 or 150 ALR 76 per Finkelstein J at FCR 410. If made, the LEP may not be amended or revoked otherwise than by the procedures under Div 4 of Pt 3, and any decision to amend or revoke can only be initiated under s 54 or s 55. (Mr Hale sought, in response, to limit any contrary intention apparent in the EP & A Act to the circumstances where the LEP has been gazetted and thereby takes effect (s 34(5)). He denied that any contrary intention appears, and therefore, s 48 of the Interpretation Act enables the Minister to re-exercise his discretion). 97. In this particular case the Minister actually made one of the decisions the statute allowed and required of him, and it was then communicated. Mr McClellan submits that any such decision taken by the Minister has far reaching consequences for people having some interest in the subject matter, and the Minister must be regarded as functus officio until something new is put up to him/her, fully in accordance with the statutory procedures described above. It would be against the public interest for the court to imply a power in the Minister to revisit a decision without that process being pursued again. When the decision is publicly made well known, as it was in this case, and people act to their cost in reliance upon it, the argument must be even stronger against its being capable of revisitation.”

In relation to this issue, Sheahan J held at paragraph [139] as follows: “139. The Part 3 process having been pursued to the point of a firm decision by the Minister not to make the plan, his role as the final stage decision maker in any Part 3 process is concluded. He exercised his statutory power in one of the four ways available to him, but not in that one of the four (s 70(3)) which keeps the plan making process ‘alive’. He chose to act in one of the three ways which clearly, on the plain wording of s 70(1) and s 74, conclude the process, and he must, therefore, be regarded as functus officio. (Leung).” Arising from the decision in Richmond v Minister are the following propositions: • The scope for challenging the making of an LEP (and by implication, other planning decisions) on the basis that the decision-maker failed to make further inquiries in accordance with Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 65 ALR 549 is very limited. • If a report of the Director under s 69 (and by implication, other planning reports required as a precondition to a decision or as an assessment of relevant considerations) contains a factual error, provided that factual error is within jurisdiction, it is not subject to judicial review unless the resulting decision is manifestly unreasonable in the Wednesbury sense (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 and Rosemount Estates v Cleland (1995) 86 LGERA 1). • A decision by the Minister under s 70 in relation to the making of an LEP (and by implication, other planning decisions such as the grant of a development consent) is a final decision and cannot be revisited. In these circumstances, the statutory power has been exercised, the purpose for its creation has been fulfilled and the power is exhausted, and hence the Minister must be regarded as functus officio (Leung v Minister (1997) 79 FCR 399; 150 ALR 76).

However, if the Minister’s decision under s 70 has not been communicated to the council, the Minister is not precluded from revisiting his decision under s 70 (Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638). The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments) inserted a new provision in s 69 in relation to the Report of the Director-General on a draft LEP. The new s 69(2) provided as follows: “69.(2) The Director-General is not to furnish a report to the Minister under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the matters that the Director-General is required to consider for the purposes of a report.” (In the 2005 Amendments, see s 3 and Sch 2[12].)

PART D MODEL PROVISIONS, STANDARD INSTRUMENT, LOCAL ENVIRONMENTAL PLAN FORMAT AND MINISTERIAL DIRECTIONS ¶16-010 Model provisions As originally enacted, the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provided in s 33 for an Environmental Planning Instrument (EPI) to adopt in whole or part Model Provisions, and where adopted, any change to those Model Provisions automatically applied to the Local Environmental Plan (LEP). Under s 71, the Minister was empowered to determine the format, structure and subject matter of an LEP. On 26 September 1980, the Environmental Planning and Assessment Model Provisions 1980 (1980 Model Provisions) were made by the Minister under s 33 of the EPA Act.1 These Model Provisions have been amended on a number of occasions since their original making. The 1980 Model Provisions contained standard provisions relating to: • standard definitions for most development purposes and key terms for development standards (Pt II, cl 4) • heads of consideration for applications for development of high public visibility, traffic generating developments, extractive industries and mineral sands mines (Pt III, cl 5) • provisions relating to general amenity and convenience, including foreshore building lines (cl 7), and tree preservation orders (cl 8) • special provisions relating to roads (cl 9–12), off-street loading

facilities (cl 13), residential development conversions (cl 15), parking for residential flats (cl 16), setbacks for residential flats (cl 17), winning of extractive material in residential zones (cl 18), service stations and car repair stations (cl 19), drive-in theatres (cl 20), drive-in take-away food shops (cl 21), motor showrooms (cl 22), industrial uses in a business zone (cl 23), railway sidings (cl 24), liquid fuel depots (cl 25), junkyards and offensive and hazardous industries (cl 26), sawdust and sawmill waste (cl 27), general stores (cl 28), construction of dams (cl 29), provision of services (cl 30), development below high water mark (cl 31), extractive industries and transport terminals in rural zones (cl 32), advertising structures (cl 33) and development on flood-prone land (cl 34), and • savings and exemptions in relation to uses by the Crown of existing Crown buildings, home occupation in a dwelling house, plus a series of exemptions for public utility undertakings and other developments in Sch 1 (cl 35). Footnotes 1

NSW Government, 26 September 1980, NSW Government Gazette, No 139.

¶16-020 Advantages and disadvantages of utilising the Model Provisions The advantages of utilising the Model Provisions were that they: • applied generally standard definitions and provisions and so lessened the uncertainty of interpreting provisions, and • could be updated and, when updated, their provisions would flow through automatically to all LEPs that adopted them. The disadvantages of utilising the Model Provisions were that:

• they could be adopted in whole or in part, and when adopted in part — added to the complexity of interpreting an EPI • as they were a separate instrument incorporated by reference in an EPI, they required examination of more than one document to properly interpret an EPI, and • there was no requirement to use the Model Provisions, and hence, some LEPs would contain their own specific equivalents often with minor or indeed major variations. Section 71 of the EPA Act, as originally enacted, empowered the Minister to make determinations on the “format, structure and subjectmatter” of an LEP to provide a template for LEPs. The Minister issued a determination under s 71 in January 1983.2 Footnotes 2

See Department of Planning, Circular No C4, Section 71 of the EPA Act 1979 — Local Environmental Plans, issued 17 March 1989, Reference 82/10231.

¶16-030 Shellharbour Municipal Council v Minister for Planning — Local Environmental Plans should not refer to Development Control Plans Bignold J in Shellharbour Municipal Council v Minister for Planning (1985) 58 LGRA 186 (Shellharbour) made some obiter dicta remarks about the scope of directions under s 71 of the EPA Act. The Minister had issued a determination under s 71 of the EPA Act in January 1983 advising councils “that local environmental plans shall not, inter alia, include references to development control plans (e.g. a provision which prevents development taking place until a development control plan is prepared)” (p 193).

Bignold J said at p 198–199: “The applicant challenges this interpretation of s.71 contending that it deals with matters of form and structure rather than content. … If it were necessary to decide the question I would be of the opinion that s.71 does not authorise the type of direction here in issue which purports to control the content of local plans. In my opinion the absence from s.71 of the [p 199] word ‘content’ is significant. The content of environmental planning instruments (including local plans) is widely stated (see ss.24 and 26). The Minister is given specific (but limited) power to regulate content of local plans by s.117. Seen within the overall legislative context I think it is clear that s.71 which is expressed to apply ‘subject to this Act’ does not operate to control the content (in the sense of substance) of local plans.”

¶16-040 The 2005 and 2008 Amendments The introduction of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments) repealed both s 33 and s 71 and inserted a new s 33A and 33B. In addition, s 33A(8A) was inserted by the introduction of the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) (2008 Amendments). Section 33A provides that the Governor may prescribe a Standard Instrument for LEPs and other EPIs. The Standard Instrument may contain mandatory and non-mandatory or additional provisions. Where the Standard Instrument is amended, those amended provisions apply to EPIs which use it. The 2005 Amendments replaced the system of Model Provisions with a Standard Instrument which was not incorporated within an EPI and hence did not form part of an EPI. Rather, it provided a template or guide to be used in the preparation of an EPI to which matters could

be added, or varied in the resulting EPI. Hence, the Standard Instrument only required reference to it by a council in the preparation of an EPI and not for interpretation of an EPI after it was made. Further, by declaring the adoption of the Standard Instrument in an EPI as a matter of State environmental planning significance, it enabled the Minister and the Department of Planning to require its use as a template for EPI preparation. Where part of a Standard Instrument is declared a mandatory provision, amendments to the Standard Instrument mandatory provisions automatically amend an EPI which adopts those mandatory provisions without the need for specifically amending that EPI.

¶16-050 The Standard Instrument In accordance with s 33A of the EPA Act, the Standard Instrument (Local Environmental Plans) Order No 155 of 2006 (NSW) (Standard Instrument) was gazetted and commenced on 31 March 2006. The Standard Instrument has been amended on multiple occasions since its original enactment and consists of two parts: (1) the Order itself, and (2) a Standard Instrument for principal LEPs as an Appendix to the Order. The Order provides that the Standard Instrument is for LEPs. It identifies mandatory provisions (which are described as compulsory provisions) and optional provisions (cl 4), specifies that the form and content of an LEP is set out in the Standard Instrument (cl 6) and provides that an LEP adopting the Standard Instrument should apply to an entire Local Government Area (LGA) with a capacity for the Minister to approve exceptions (cl 6). In terms of its content, the Standard Instrument for LEPs is broader than the former Model Provisions, as it now includes the matters previously covered by s 71 of the EPA Act. It includes essentially a template draft LEP for councils’ use in the preparation of a draft LEP. The following are the key mandatory (compulsory) provisions:

• Zone categories and names (cl 2.1) • Zone objectives and a Land Use Table for each zone (cl 2.3) • Requirement for consent for subdivision (cl 2.6) and demolition (cl 2.7) • Exempt and compulsory development (Pt 3.1) • Exceptions to development standards (cl 4.6) • Development standards for rural subdivision (cl 4.2) • Acquisition authorities (cl 5.1) • Classification and reclassification of public land (cl 5.2) • Controls on miscellaneous permissible uses (cl 5.4) • Development in the Coastal Zone (cl 5.5) • Heritage conservation (cl 5.10) • Dictionary of definitions (cl 1.4 and Dictionary) • Development below mean high water mark for tidal waters (cl 5.7), and • Infrastructure development and use of existing buildings by the Crown (cl 5.12). The principal optional provisions relate to: • Development standards for minimum subdivision lot size (cl 4.1), height of buildings (cl 4.3), floor space ratio (cl 4.4–4.5) • Development near zone boundaries (cl 5.3), and • Tree preservation (cl 5.9).

In its LEP Practice Note,3 the Department of Planning indicated that, ordinarily, councils will not be able to alter the standard definitions or add their own definitions to the Dictionary. While the Land Use Table in the Standard Instrument is mandatory, the Department of Planning indicated additional zone objectives and specific uses may be added, but not removed from those in the Standard Instrument. The LEP Practice Note stated:4 “Additional objectives may be included in a zone at the end of the listed objectives to reflect particular local objectives of development, but only if they are consistent with the core objectives for development in that zone as set out in the Table. Specified uses may be added (but not removed from) the list of development that is permitted or prohibited in a zone. Additional uses may be added to an item of a zone even if some uses are already specified in that item. Additional permitted uses for particular land (but not all land in a particular zone) may be set out in Schedule 1.” Further, in relation to development standards, the LEP Practice Note stated:5 “The standard instrument includes development standards for minimum subdivision lot sizes, height of buildings, and floor space ratio as optional clauses. If a council wishes to have such development standards in its LGA, then they must be included in the principal LEP and not through some other mechanism, such as a development control plan.” Footnotes 3

Department of Planning, 12 April 2006, LEP Practice Note PN 06-003 Standard Instrument for LEPs, p 1.

4

ibid, p 5.

5

ibid, p 2.

¶16-060 Benefits and disadvantages of the Standard Instrument and its use The benefits of the Standard Instrument and its use are as follows: • it removes the need to consider more than one document in interpreting an LEP, such as the former Model Provisions • it removes the limitation in the former s 71 of the EPA Act in relation to what constitutes “format, structure and subject matter” of an LEP, as noted by Bignold J in Shellharbour • it requires compulsory inclusion of the mandatory provisions, removing the optional nature of the former Model Provisions • by including the definitions contained in the Dictionary of the Standard Instrument as a mandatory provision, the Standard Instrument avoids the difficulties created by the use of nonstandardised definitions previously, and • the standardised zones assist in limiting the number of zones and in establishing a standard minimum scope of each zone. The disadvantages of the Standard Instrument and its use are as follows: • It requires the Department of Planning to be heavily involved in the details of the content of all LEPs, in adding additional land uses to particular zones and in checking draft LEPs for compliance with the mandatory provisions. • It provides a “one size fits all” zoning scheme which may not be appropriate in all local circumstances. • The automatic updating of LEPs provided in s 33A(4) when the Minister amends the Standard Instrument does not provide for a

system of alerting or involving the public.

¶16-070 Staged repeal order Section 33B enabled the Minister to make an order to establish a staged repeal program for existing EPIs. Despite the statement by Minister Knowles in his Second Reading Speech in 2005 that: “The staged repeal program is essential to achieve the modernisation of LEPs within a reasonable time frame”, and the provisions of s 33B enabling the Minister to make an order be published on the NSW legislation website to establish a staged repeal program, in the subsequent five years, no such order has ever been made. This suggests that — what was once essential — no longer is. Following the commencement of the 2005 Amendments, savings and transitional provisions were made to give ongoing force to the 1980 Model Provisions that were adopted in LEPs (Sch 6, cl 93 of the EPA Act).

¶16-080 Section 117 Ministerial directions As originally enacted, the EPA Act provided a power for the Minister to issue directions under s 117. Section 117 provided that the Minister could direct a public authority or any person with a function under the EPA Act or an EPI to exercise those functions in accordance with times specified and to direct a council to exercise its functions in preparing a draft LEP in accordance with matters of State or regional planning significance. Directions under s 117(2) were made by the Minister to provide guidance on key State and regional planning principles in the preparation of LEPs. These directions formed an important requirement for councils in the: • preparation of a draft LEP • granting of a s 65 certificate for a draft LEP (particularly prior to the Environmental Planning and Assessment (Amendment) Act 1985

No 228 (NSW) (1985 Amendments)) • public exhibition of a draft LEP under s 66 • submission by the council to the Director-General of the Department of Planning under s 68 • report of the Director-General to the Minister under s 69, and • decision of the Minister whether to make the draft LEP under s 70 (particularly prior to the 1985 Amendments). With the expansion of the power of the Minister in relation to the making of an LEP, the importance of s 117(2) directions subsided.

¶16-090 The 2006 Amendments With the introduction of the Environmental Planning and Assessment Amendment Act 2006 No 8 (NSW) (2006 Amendments), s 117 was amended to add a new s 117(2)(c) and (4A) to enable the Minister to direct a council to provide reporting on the council’s performance in relation to planning and development matters, and to require consultation by the Minister with the Local Government and Shires Association of NSW and other industry bodies in relation to draft directions on performance reporting by councils. With the changes to the LEP preparation and making effected by the 2008 Amendments, minor changes were made to s 117 to harmonise it with the new Pt 3 dealing with LEPs. A fully revised set of s 117 directions was issued by the Minister for Planning, the Hon Frank Sartor MP, on 30 September 2005, and these were revised following the 2008 Amendments to the EPA Act by the Minister for Planning, the Hon Kristina Keneally, on 1 July 2009.

PLAN FIRST AND THE PLANNING REFORM AGENDA OF 2003–2005

¶17-010 Plan making in New South Wales — discussion paper released In February 1999, the Minister for Urban Affairs and Planning, the Hon Craig Knowles MP, released a discussion paper on a review of plan making in New South Wales entitled “Plan Making in NSW. Opportunities for the Future. Discussion Paper” (Discussion Paper).1 The Discussion Paper identified the rationale for a review as follows: “In NSW there is increasing awareness by governments, industry and the community of the need to achieve ecologically sustainable development, structural economic reform, and to have accountability and transparency in decision making. The NSW planning system needs to be re-positioned so that it is relevant and meets the needs of all stakeholders. There are opportunities created by the recent development assessment reforms to create a new and more strategic approach to plan making, both at the local and State/regional level. Additionally, there have been some significant shortcomings identified in the current plan making system. These include: • the sheer complexity of the system. There are, for example, almost 300 principal local planning instruments in the State and over 5300 amendments • the resulting difficulties in determining what planning provisions apply to a parcel of land • the age and highly prescriptive nature of many plans • the inefficiencies in the current planning system, including the long lead times needed for plans to be made • the lack of strategic planning • the lack of integration with plans prepared under other legislation or systems (especially natural resource management plans)

• the lack of effective community participation in plan making • the lack of monitoring and review of plans • the inaccessibility of plans for users. The scope of the review is broad. It is not limited to fine tuning the plan making provisions of the EPA Act nor to considering the Act in isolation.”2 Footnotes 1

NSW Government, Department of Urban Affairs and Planning, February 1999, Plan Making in NSW. Opportunities for the Future. Discussion Paper, ISBN 0 7347 06253.

2

ibid, p ix.

¶17-020 Strengths and weaknesses of the existing system The Discussion Paper identified what it considered were the strengths and weaknesses of the existing plan making system as follows: “The existing system has a number of strengths and weaknesses. The strengths include: • the broad objects of the Act and the potential for plans to address a similarly broad range of issues • the potential for the Act to be used as a ‘spine’ for integrating environmental management and other issues with land use planning • the formal opportunities for public participation in the making

of plans • the formal recognition of State, regional and local interests. The weaknesses and limitations include: • the complexity of the system • a perceived weakness in the setting of State direction and strategic regional planning • the static, inflexible nature of plans and their limited guidance on how to manage change or better manage existing uses • the generally low level of public input in the early stages of developing a plan.”3 Footnotes 3

ibid, p x.

¶17-030 Objectives for a review The Discussion Paper proceeded to identify objectives for a review as follows: “• promotes accountability and is transparent to users • is outcome-orientated and starts with a strategic approach • actively involves the community • encourages certainty and consistency in the content and format of plans • manages change more flexibly • involves simple procedures and clearly defined responsibilities • ensures plans are regularly reviewed

• is accessible and user friendly.”4 It highlighted the vast array of policy and planning initiatives occurring outside the EPA Act primarily by agencies other than the Department of Urban Affairs and Planning.5 The Discussion Paper noted: “• environmental planning in NSW has diverse origins — plans, policies and strategies are prepared by a broad range of agencies, councils and action groups • there is potential for overlap and contradictory direction in the management of our environment and resources • only a very small proportion of the plans are made under, or link directly to, the EP&A Act • many plans, policies and strategies are not recognised in legislation.”6 Footnotes 4

ibid.

5

ibid, p 8–15.

6

ibid, p 9.

¶17-040 Issues and weaknesses in coordination and strategic planning The issue of coordination between government agencies in their planning and policy making activities had grown considerably. Agencies outside the planning agency sought to stake claims in the field of environmental policy. A major driver in the divergence of planning and environmental policies stemmed from the splitting of the environment and planning

ministerial portfolios in New South Wales after 1988 and the coalescence of agencies into separate planning and environment departments. Hence, the Discussion Paper largely highlighted a deficiency created and perpetuated by the State government. The Discussion Paper also noted a weakness in the area of strategic regional planning, noting that: “In the past we have not systematically prepared State directions or undertaken integrated regional planning under the EP&A Act, in order to set the scene for development and land management decisions at the local level.”7 Footnotes 7

ibid, p 17.

¶17-050 Guiding principles and key outcomes The Discussion Paper outlined “guiding principles” for the plan making system as follows: “We should strive for a plan making system that: • promotes accountability and is transparent to users • is strategic, integrated and outcome oriented • involves proactive community involvement • encourages certainty and consistency in the content and format of plans • provides flexibility to manage change • involves simple procedures and clearly defined responsibilities • requires plans to be kept under regular review

• is accessible and user friendly.”8 Further, it proposed five key outcomes to improve the plan making system as follows: “When considering these guiding principles, five key outcomes emerge as targets for reform. By focusing on these, avenues for improvement to the plan making system can be explored. The key outcomes are: 1. Improved coordination and integration There needs to be more coordination between the different levels and agencies of government, to achieve better integration of plans. A way to comprehensively link the planning system with natural resource management, economic, transport, urban design and social issues is required. Our aim is to have plans that better address these issues through a strategic approach rather than trying to respond to them when assessing particular development proposals. 2. Reduced complexity With more than 5700 principal and amending environmental planning instruments throughout the State, not to mention the many other sorts of plans, the complexity of the system cannot be doubted. There is an urgent need to reduce this complexity and create a system of better organised plans, where there is a clear statement about the intention for an area, and where there is certainty about what provisions apply to a parcel of land and how various plans relate to one another. 3. Better communication and participation People in the community, including individuals and special interest groups are demanding to be more effectively involved in the plan making process. We need to examine ways to improve the opportunities for public participation and

explore the possibilities for using more innovative methods of involving communities at the strategic planning stage. 4. Effective land use controls Zoning remains the basic tools of the current land use control system in NSW. Other systems are more flexible relying less on zoning — and some, as in the United Kingdom, allow all proposals to be tested against the objectives of the relevant plan and assessed accordingly. The number of different zones in NSW probably exceeds 2500, and although the variations between them may be only minor, it makes for a complicated system both to access and administer. In some circumstances, alternatives to strict zoning may be a good way of achieving acceptable environmental outcomes. 5. Efficient processes for plan making and review The process of making plans is prescriptive, bureaucratic and drawn out. There is also no specific timeframe to review plans or requirement to monitor whether they actually achieve their objectives. Improvements which simplify and streamline procedures while maintaining an appropriate level of checks and balances are required.”9 The Hon Craig Knowles MP ceased to be Minister for Urban Affairs and Planning on 8 April 1999 and was succeeded by Dr Andrew Refshauge MP. Footnotes 8

ibid, p 27.

9

ibid, p 27–28.

¶17-060 Plan First — White Paper released

Following a process of public consultation and submission on the Discussion Paper, a White Paper was released in February 2001 by the Minister for Urban Affairs and Planning, Dr Andrew Refshauge MP. It was entitled “Plan First. Review of Plan Making in NSW. White Paper.”10 (White Paper). At the time of its release, the Department released a report entitled “Ideas for Community Consultation”.11 The White Paper announced a government initiative to “modernise” the plan making system called “Plan First”. The White Paper stated: “Plan First contains four key features to improve plan making in NSW: • a whole-of-government strategic approach to urban, regional and rural planning to help achieve sustainability; • clear rules for businesses and landholders in plans that are user-friendly and easily accessible; • a more versatile planning ‘toolbox’ for implementing plans and delivering results; • greater community involvement in plan making.”12 Essentially, the Plan First initiative sought to provide an integrated and coordinated state planning framework with State planning policies. Footnotes 10

NSW Government, Department of Urban Affairs and Planning, February 2001, Plan First. Review of Plan Making in NSW. White Paper, ISBN 0 7347 0146 2.

11

Department of Urban Affairs and Planning NSW, 2001, Ideas for community consultation: A discussion on principles and procedures for making consultation work, report prepared by Carson, L and Gelber, K, Sydney, ISBN 0 7347 0146 2.

12

ibid, p 9.

¶17-070 Plan First proposed legislative change The White Paper proposed a series of likely legislative changes. It stated that: “It is anticipated that these changes will be contained in a draft Bill that will be introduced to Parliament later this year. In outline, these changes will: • provide for the preparation of state planning policies, regional strategies and local plans, and how and when they can be made; • set up the steps for amending those policies, strategies and plans; • set out how state planning policies will inform and guide the preparation of regional strategies, and how changes to those policies will change those strategies; • set out how changes to development controls arising out of changes to state planning policies are to be incorporated directly in local plans; • establish Regional Forums, set[ting] out their role and membership; • establish links between the regional strategies and issues based management plans, and how issues based management plans will inform regional strategies; • set out how regional strategies will inform and guide local planning; • set out how local plans will inform and guide management

plans under the Local Government Act 1993, local council works programs and other local planning exercises; • provide for compulsory monitoring and review of policies, strategies and plans; • empower local councils to make local plans with the Minister’s concurrence.”13 A draft Bill was prepared to implement the Plan First proposals, but the NSW Government decided not to proceed with the amending legislation. The principal factors for this approach appear to have been: • significant opposition by other environmental and resource management agencies at ceding their policy making function to the planning agency, and • related to the majority of the Plan First proposals being able to be achieved within the existing EPA Act without the necessity for legislative change. Footnotes 13

ibid, p 45.

¶17-080 Planning review taskforces established Following the government’s decision in relation to Plan First and a Ministerial change in the planning portfolio (the Hon Craig Knowles MP returned to an enlarged portfolio of Minister for Infrastructure and Planning and Minister for Natural Resources on 2 April 2003), the Minister established a series of taskforces to consider planning reforms in June 2003. These taskforces were as follows: • Plan Making Taskforce Review

• Local Development Assessment Taskforce Review • Section 94 Taskforce Review • Ministerial Consent Role Taskforce Review • Masterplan Taskforce Review • State Environmental Planning Policies (SEPP) Taskforce Review • SEPP 5 Taskforce Review, and • Major Development and Infrastructure Taskforce Review. The terms of reference for the Plan Making Taskforce were to report on which aspects of Plan First should be pursued, given the significant organisational changes resulting from the establishment of the Department of Infrastructure, Planning and Natural Resources (DIPNR) with the amalgamation of the former Department of Urban Affairs and Planning and the former Department of Land and Water Conservation. The Plan Making Taskforce under the chairmanship of Ms Gabrielle Kibble reported on 1 September 2003.14 In relation to legislative changes, the Plan Making Taskforce recommended: “The Taskforce considers that the EP&A Act in its existing form provides a suitable base for the introduction of planning system reforms. There is an inherent flexibility in the Act that provides for a variety of planning tools to be implemented. It is the manner in which DIPNR and local government uses these tools in the future that will influence the succeed and impact of any reform. On this basis, the Taskforce approached the terms of reference from the viewpoint that minor amendments (if any) to the EP&A Act would be necessary to implement recommended reforms. Essentially, very few of the recommendations require immediate or substantial legislative change.”15

In September 2004, the government released its response to these planning review taskforces, with the exception of the review relating to Major Development and Infrastructure.16 The philosophy behind the planning reform agenda announced by Minister Knowles in September 2004 was expressed as follows: “Reforms to the planning system build on the NSW Government’s natural resources reforms. These include the ongoing reforms to ensure the sustainable use of water and new legislation to manage vegetation. New independent authorities have been created to increase expert and community involvement in natural resources management — the Natural Resource Commission and 13 catchment management authorities. The Government’s policy objectives are to better link decisionmaking about land use, infrastructure planning and natural resources management. These new policies are also designed to reduce the State Government’s involvement in day-to-day issues. Natural resources management decisions will devolve to catchment management authorities and more land use management and development decisions will devolve to local government. To achieve this, the State will focus on the bigpicture strategic issues. It will set standards and priorities required to guide this new localised decision-making. We see strategic planning as being vital in bringing together natural resources management, and infrastructure and land use planning. … The reform agenda has a key theme: delivering sustainable development outcomes while preserving public consultation. Supporting this theme are four main planks. 1. Strategically assess and plan for priority growth areas. 2. Simplify plan making by reducing the layers of planning instruments and making the local environmental plan the primary instrument.

3. Improve development assessment. 4. More flexible use of developer financial contributions for local facilities and services (under section 94 of the Environmental Planning and Assessment Act 1979).”17 In relation to local planning, the primary initiative related to the development of Standard Provisions for LEPs which eventually resulted in the Environmental and Planning Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) in relation to the Standard Instrument (s 33A and s 33B) and the Standard LEP instrument itself. In addition, many initiatives were approved relating to administration and planning practice, as well as amendments to the EPA Act in relation to development contributions. It is noteworthy that the underlying philosophies of the reforms of Minister Knowles were of a decentralised and devolutionary nature, of reducing the State government’s involvement in day-to-day decisions, with more development decisions to be devolved to local government. Footnotes 14

Department of Infrastructure, Planning and Natural Resources, September 2003, Planning System Improvements: Report by the Plan First Review Taskforce to the Minister for Infrastructure and Planning and Minister for Natural Resources, DIPNR.

15

ibid, p 33.

16

Department of Infrastructure, Planning and Natural Resources, September 2004, NSW Government’s Response to the Recommendations from the Planning Reviews, DIPNR.

17

Department of Infrastructure, Planning and Natural Resources, September 2004, NSW Planning Reforms: Improving the NSW Planning System, DIPNR, ISBN 0

7347 55309, p 2 and 4.

LOCAL PLANNING CHANGES 2006–2008 ¶18-010 Change of agenda and 2006 Amendments Following the retirement of the Hon Bob Carr MP as Premier on 3 August 1985 and the appointment of the Hon Morris Iemma MP as Premier, the Hon Craig Knowles retired from Parliament and the Hon Frank Sartor MP was appointed as Minister for Planning. This resulted in a changed agenda for planning, with a different philosophy and direction. The first significant legislative change was the introduction of the Environmental Planning and Assessment Amendment Act 2006 No 8 (NSW) (2006 Amendments). These amendments, which received assent on 3 April 2006, contained amendments relating to development contributions, and in relation to general planning, provided as follows: • The Minister was empowered to direct councils to make, amend or revoke a development control plan. • The Minister was empowered to issue s 117 directions to a council to report on the council’s performance in relation to planning and development matters. • The Minister was empowered to appoint a planning administrator or a panel to exercise the functions of a council. • Provisions relating to the appointment and operations of Planning Assessment Panels. The provisions relating to the appointment of a planning administrator or panel were contained in the new s 118 replacing earlier but less detailed provisions.

The 2006 Amendments enabled the appointment of a planning administrator or panel to exercise a council’s function in relation to plan making. This, however, could have been done under the former s 118 as originally enacted in the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). While the 2006 Amendments included more details relating to such appointments, they did not propose a significantly increased power. Even more interesting is the new tone of government rhetoric, emphasising a less cooperative and more coercive approach regarding council performance in planning.

¶18-020 Department of Planning institutes new process On 22 February 2006, the Department of Planning instituted a new process in relation to draft Local Environmental Plans (LEPs) with the establishment of an LEP Review Panel. The role and rationale for the LEP Review Panel was described as follows: “The objectives of establishing a departmental LEP Review Panel are to: • move to a more thorough upfront assessment of LEP proposals as soon as the Department is notified of a council’s decision to prepare a draft LEP • strengthen the strategic and policy consideration of LEP proposals • provide a consistent framework across councils and the Department to evaluate the context and justification for an LEP and the outcomes it is intended to produce • reduce the number of draft LEPs in the system.” At the same time, the Department of Planning advised that it had revoked its previous delegations of the Director-General’s functions under s 65(1) and s 69 of the EPA Act and replaced these with specific delegations for individual draft LEPs on a case-by-case basis.1

The role of the LEP Review Panel was described as follows: “The role of the panel is to: in respect of all draft LEPs: • provide advice to council about proposed draft LEPs • provide advice to the Director-General and/or Minister for Planning about proposed draft LEPs • review section 54(4) notifications against the relevant set of evaluation criteria and, in respect to certain draft LEPs: • review draft LEPs submitted at the section 64 stage to determine whether a section 65 certificate should be issued (optional) • review draft LEPs when submitted to the Department at section 68(4) stage (optional) • review section 69 reports to the Minister (optional).” The LEP Review Panel was comprised principally of Department of Planning officers. The process was outlined in the following chart issued by the Department of Planning.2 Figure 18.1: Local Environmental Plan Process (following establishment of Local Environmental Plan Review Panel, February 2006)

Footnotes 1

NSW Department of Planning, 16 February 2006, Planning Circular, Local Environmental Plan Review Panel, Circular PS 06–005, p 1.

2

ibid, p 2.

¶18-030 Councils see reduction in autonomy As a result of the introduction of the LEP Review Panel, the Department of Planning, using a combination of the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument), the s 117 directions and the Minister’s powers under s 70 (primarily the power not to make an LEP), assumed a significantly enhanced role in LEP preparation, and as a result, there was a significant reduction in the autonomy of local councils. Effectively, it

transformed LEPs from being largely the product of a council to being largely the product of the Minister and his Department. As the Minister for Planning, the Hon Frank Sartor MP, said in the NSW Legislative Assembly on 24 October 2006: “During the year the Government made significant operational reforms in the planning system which include introducing an expert panel to vet local environmental plans at an early stage to avoid time being wasted on proposals that could not be supported in principle …”3 Of course, this assumed that it was the role of the Minister and the Department to vet in detail each draft LEP prepared by a council. In addition to the increased supervising and controlling role of the Department of Planning, a requirement was issued by the Department in April 2009 requiring mandatory pre-submission meetings between council staff and the Department prior to the formal s 64 submission of all draft LEPs using the Standard Instrument.4 Footnotes 3

NSW Parliament, 24 October 2006, Legislative Assembly Hansard.

4

NSW Department of Planning, 9 April 2009, Planning Circular, Local Planning, Circular PS 09–011.

¶18-040 Improving the NSW Planning System — discussion paper released In November 2007, the NSW Department of Planning released a Discussion Paper entitled “Improving the NSW Planning System”.5 Footnotes

5

NSW Department of Planning, November 2007, Improving the NSW Planning System, Discussion Paper.

¶18-050 Proposed recommendations The proposed recommendations in the Discussion Paper relating to plan making were as follows: “P1. It proposed to introduce a new system of plan-making that is better tailored to the scale, risk, and complexity of land use changes, and allows most LEPs to be finalised more quickly. For smaller LEPs, the system is expected to reduce average time of processing time by at least 50 per cent. P2. A gateway screening system for land use changes would be introduced. This would be carried out prior to any rezoning or LEP being commenced. A rezoning, or LEP, would not proceed if it did not meet certain specified criteria. The criteria would vary according to the risks and scale associated with a rezoning or development proposal, and would apply whether initiated by a council, State agency, or private proponent. Gateway evaluations for large scale proposals would require a whole of government approach, while smaller proposals, or LEP amendments, would be progressively delegated to other authorities. The gateway evaluation could also look at whether a temporary or permanent rezoning was appropriate. P3. When land use changes have been agreed to in principle, the making or amendment of a rezoning or LEP would also be authorised. The LEP (or relevant plan) would then be streamed into different pathways for processing and determination commensurate with risk, scale and sensitivity. For minor land use issues, consideration could be given to expanding those matters that can be dealt with under Section 73A.”6 Footnotes

6

ibid, p 47–48.

¶18-060 The 2008 Amendments Following a consultation process on the Discussion Paper, the NSW Parliament enacted the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) (2008 Amendments). In his Agreement in Principle Speech on 15 May 2008, the Minister for Planning, the Hon Frank Sartor MP, said: “The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal; this stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation. …”7 Footnotes 7

NSW Parliament, 15 May 2008, Legislative Assembly Hansard, p 7695. The Bill passed the Legislative Assembly in the early hours of the morning of Wednesday, 4 June 2008. The previous evening, the then Tourism Minister, the Hon Matt Brown MP, hosted drinks in his Parliament House office. The Daily Telegraph on 12 September 2008 reported what ensued: “As the night wore on and pushed past midnight the group got rowdier and drunker and the music got louder. It is understood the remaining MPs, thought to include Ms Hay, Mr Corrigan and Mr McLeay, started

ribbing Mr Brown, who is known for being a sharp dresser, for being somewhat effete. At about this time, Mr Brown, in an apparent effort to prove his manliness, stripped down to his underpants and began gyrating with Ms Hay — although she denies having witnessed anything untoward — as her daughter watched. … Then at around 2am the division bells rang. Mr Brown hurriedly threw his clothes back on and the group staggered downstairs to the Legislative Assembly and voted through the most radical planning overhaul the state has perhaps ever seen.” Subsequently the Hon Matt Brown MP resigned from the Ministry, although the Bill became law.

¶18-070 Change to process of preparations of Local Environmental Plans The 2008 Amendments provided a radical change in the process of preparation of LEPs. They removed all pre-existing provisions of the EPA Act in Pt 3 Div 4 and 4A relating to LEPs and inserted an entirely new set of provisions in the new s 53 to 60. The most radical elements of the 2008 Amendments were their highly centralised approach, vesting complete authority over LEPs in the Minister, providing a culmination of the small steps towards centralisation since the introduction of the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW). No longer was the preparation of a draft LEP to be solely the responsibility of the council. That responsibility was to be exercised by a Relevant Planning Authority (RPA) which could be the Director-General of the Department of Planning, any other person or body directed by the Minister, or if none of these, the council. The scheme of the 2008 Amendments in relation to LEPs is outlined in Figure 18.2. Figure 18.2: Local Environmental Plans (as provided in the 2008

Amendments)

¶18-080 Responsibility for a Local Environmental Plan Section 53 provides that responsibility for an LEP rests solely with the Minister. It also provides for the areas which may be subject to an LEP. The important aspect of s 53 is that an LEP may be made in relation not only to land within a council’s Local Government Area (LGA), but may apply to land outside an LGA, provided such land is within the constitutional jurisdiction of the State of New South Wales. Hence, the new s 53 overcomes the limitations in the former s 54 (as existing from 1980 until the 2008 Amendments) (see further in Part B (Chapters ¶2–¶9) of this book). Thus, s 53 enables an LEP to be made for areas within New South Wales not included in an LGA including: • the unincorporated area of Western New South Wales, and • the coastal waters of New South Wales out to the three nautical mile limit and submerged lands below low water mark (except if

they are privately owned and have a structure erected thereon) not part of an existing LGA. However, for such areas, unless they are part of its LGA, a council cannot be the RPA to prepare an LEP for such areas, as the council can only be the RPA for lands within its LGA under s 54(1)(a) subject to the later discussion on s 54(6). Section 54 deals with who prepares a proposed LEP and the appointment of an RPA. Section 54 identifies who is the RPA in respect of a proposed LEP. The RPA is the council for the LGA to which the proposed LEP is to apply unless the Minister directs otherwise under s 54(2) (s 54(1)(a)). If the Minister directs otherwise under s 54(2), the RPA is the DirectorGeneral or the person or body who is so directed by the Minister (s 54(1)(b)). The Minister, in making a direction as to who is the RPA, can direct that the RPA is the Director-General of the Department of Planning. Alternatively, it can be “any other person or body prescribed by the regulations”. Thus, for the Minister to direct that the RPA is a person or body other than the Director-General, the Minister must first make a regulation prescribing that person or body for the purposes of s 54(1)(b). Subject to the requirement for prescription by regulation, the Minister is not confined as to the class of persons or body who may be prescribed and hence, be the RPA for a proposed LEP. It is not limited to public officials or public authorities, and extends to private persons, private corporations or other private bodies. The Minister’s power to direct that the Director-General or another person or body is the RPA for a proposed LEP is constrained by s 54(2). The Minister can only exercise the power to appoint someone other than the council as the RPA in the following circumstances: (a) if the proposed LEP relates to a matter that in the opinion of the Minister is of State or regional environmental planning significance (s 54(2)(a)). The question of the meaning of State and regional environmental planning significance is discussed further in Chapter ¶26. However, s 54(2)(a) now enables an LEP

to be made in relation to a matter which in the opinion of the Minister is of State or regional environmental planning significance. Henceforth, matters of State and regional environmental planning significance may be the subject of both State Environmental Planning Policies (SEPPs) and LEPs, and the Minister is empowered to make both to the exclusion of the local council. (b) if the proposed LEP is in the opinion of the Minister, “consequential” on: • the approval of a concept plan under the former Pt 3A • the making of another EPI or “other instrument” (although what this “other instrument” is, is left unsaid, and could extend in the ordinary meaning as identified by Palmer J in Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777 at paragraph [45] as “a formal legal document whereby a right is created or confirmed or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form”. It does appear curious that any “instrument”, such as a contract between two private corporations, could provide the source of power for the Minister to direct that a person or body other than the council is to be the RPA for a proposed LEP), and • changes to the standard instrument (s 54(2)(b)). (c) if the proposed LEP is recommended to be made by the Planning Assessment Commission (PAC) or a joint regional planning panel (JRPP) (s 154(2)(c)). For this source of power to be used, there needs to be a recommendation to the Minister by the PAC or JRPP to make such a proposed LEP, and in addition such a recommendation to have been lawfully capable of being made by the PAC or JRPP. (d) if the Minister forms the opinion that the relevant council has either:

• “failed to comply with its obligations with respect to the making of the proposed instrument”, or • “not carried out those obligations in a satisfactory manner” (s 54(2)(d)). For this source of power to be used, it presupposes there is a “proposed instrument”. Given that a foundation for this source of power is the formation by the Minister of an adverse view of the conduct of the council in relation to the proposed instrument, it follows that this proposed instrument is one where the council is the RPA. Thus, the process for preparing a proposed instrument must have been commenced by the council. The question arises as to whether this power is available where there is no proposed instrument because the council will not prepare one, even though requested to do so by an outside person. Given there is no specific statutory provision for the initiation of a proposed LEP by an outside person such as the proponent of a development, this appears to be unlikely. What are the “obligations” of a council in relation to a proposed LEP? Presumably an “obligation” of the council can only refer to a requirement of the EPA Act and Regulation. To have failed to comply with an obligation means to have not done something that is required. Presumably one must then import a concept of “reasonableness” into the time period after which a failure is considered to have occurred. To have not carried out an obligation in a satisfactory manner, likewise presumably imports a concept of “reasonableness” and also requires the Minister to have formed a lack of satisfaction in relation to the performance of an obligation required to be performed by the statute. The question arises as to whether the Minister, in forming an adverse opinion in relation to a council’s performance of its obligations in relation to a proposed LEP, owes an obligation for procedural fairness to the council. Balmain Association Inc v Planning Administrator for the

Leichhardt Council In the case of Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 (Balmain Association), the NSW Court of Appeal considered a somewhat analogous but different provision in s 118 of the EPA Act enabling the Minister to appoint a planning administrator in relation to some or all of a council’s functions under the EPA Act. At the time of these proceedings, s 118(1) provided as follows: “118(1) Where, as a consequence of a failure, in the opinion of the Minister, of a council to comply with, carry into effect or enforce the provisions of this Act, an environmental planning instrument, a direction under section 94A or a direction under section 117, the Minister considers it proper to do so, the Minister may, with the concurrence of the Minister for Local Government, by order published in the Gazette, appoint a person to administer all, or such part as is specified in the order, of the functions conferred or imposed on the council by or under this Act.” This is similar to the formulation in s 54(2)(d) in that both provisions enable functions otherwise in the province of the council’s responsibilities to be removed by the Minister where the Minister forms an opinion that the council has failed to comply with an obligation under the EPA Act. One of the issues raised in the Balmain Association case was whether the Minister owed the council a right to procedural fairness before exercising such a power. The decision of the Court (comprising Kirby P, Priestley JA and Handley JA) held in relation to this as follows at p 636–639: “The Association based its argument on the Minister’s failure to afford the Council an opportunity to be heard prior to making his decision to appoint the planning administrator. Since the procedural fairness ground was fully argued and since we think that the Minister’s decision was invalid on that ground also we think we should say why we have reached that conclusion.

The Minister asserted, by his notice of contention, that, for two reasons the arguments of the Association in this regard could not succeed. The first was that s.118 had been amended to indicate with sufficient clarity an intention to remove any obligation on the Minister to provide the Council with an opportunity to be heard before the power was exercised. … The High Court has said repeatedly that a statutory power to affect rights, privileges and legitimate expectations must be exercised in accordance with the common law requirements of natural justice and procedural fairness unless Parliament has clearly indicated to the contrary: see, eg, Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651–652, 678–679 and compare Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635–636. … In the present case express words of plain intendment are not to be found in s.118 as now in force. … Disciplinary action against an elected local council which deprives it of its planning authority over a substantial area of its municipality is a step which certainly attracts the duty of procedural fairness and a right in the Council to be heard before such disciplinary action is taken: see Durayappah v Fernando. The provision of an opportunity to be heard will usually result in an exercise of statutory powers which is better informed. There would be no need for the Minister, unless he saw fit, to give a formal notice, or to conduct or arrange a formal hearing of the kind envisaged by the provisions of the repealed s.118(3). However, there was an obligation in the circumstances to afford the Council an opportunity to be

heard on all the matters which concerned the Minister before he exercised this power. Had the Council been given such an opportunity the Minister’s attention might have been directed to some of the matters which have been agitated in this Court. … However, the Council was denied procedural fairness, the Minister’s decision was therefore invalid, and the appeal must be allowed on this ground as well.” Based on the principles in the Balmain Association case, it appears likely that the Minister owes a duty to accord procedural fairness to a council before exercising his power under s 54(2)(c) to direct that the Director-General or another person is the RPA for a proposed instrument. (e) if the proposed LEP is to apply to an area that is not within an LGA, subject to s 54(b). Given that s 4(1) of the EPA Act defines “area” as having the same meaning as in the Local Government Act 1993 (NSW) (LG Act 1993) (which is an LGA) “except as far as the context or subject matter otherwise indicates or requires”, it appears that the meaning of “area” in s 54 activates the prefatory exception to the definitions in s 4(1). Hence, “area” must have its ordinary meaning of an area of land, rather than an LGA. For this source of power to be used, the land to be subject to the proposed LEP must be outside an existing LGA. Where the owner of any land requests an RPA to exercise its functions under Div 4 of Pt 3 in relation to its land, s 54(3) provides that the RPA may “require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations”. This provision only applies to the “owner” of land. “Owner” is defined in s 4(1) as having the same meaning as in the LG Act 1993. For this power to be enlivened, there must be a request by an owner to an RPA to exercise its functions under Div 4 of Pt 3. Where the power is enlivened, the RPA has the option to require the owner to:

• carry out studies or provide other information concerning the proposal, or • pay the costs of the RPA as provided by the regulations. Section 54(4), in enabling the owner to provide the RPA with studies, or alternatively pay the RPA for the costs of the RPA doing or commissioning the studies, is a legislative reversal of the decision of McClelland CJ in Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGERA 420 (Burns Philp) in relation to such studies. The principles in Burns Philp of prohibiting studies prepared at the behest of a developer were established to meet the previous legislative requirement that studies must be “disinterested” and not “an advocate’s document which presupposes the desirability of the contemplated development”, to use McClelland CJ’s words. Henceforth, under s 54(4) these constraints are no longer applicable. However, s 55(1) requires that the planning proposal is to be prepared by the RPA. The relationship between these two provisions is discussed later. Section 54(5) permits two or more “relevant local authorities” (a term not defined in s 4(1), even though the term “council” is) to join together to make either a single principal or an amending LEP in relation to the whole of their combined areas (presumably in the context of a reference to their combined LGAs). Section 54(6) enables the Minister to publish an Order in the Government Gazette that designates land not part of an LGA to be part of a council’s LGA for the purposes of Div 4 of Pt 3 of the EPA Act. The Minister may only make such an order if: • the land in question is currently not part of an LGA, and • the land in question adjoins the LGA of the council concerned. Thus, it enables a council (subject to a Ministerial Order so permitting) to prepare a proposed LEP in relation to lands adjoining its LGA which are not part of any LGA. Hence, a council, subject to the making of a Ministerial Order, is empowered to prepare a proposed LEP in relation

to coastal waters, the intertidal zone, the bed of enclosed bays, estuaries or rivers, or the unincorporated Western Division, provided such lands adjoin its LGA.

¶18-090 Initiation of a proposed Local Environmental Plan It is noted that s 56 provides for no formal process for initiating a proposed LEP. Clearly, the initiation must be by the RPA, but there is no requirement for a formal decision, although it would be necessary for the RPA to make a decision in accordance with its own statutory requirements. The previous requirement under the former s 56 that the preparation of a draft LEP required the appointment of a person with prescribed environmental planning qualifications to assist the council has been removed. Henceforth, there is no statutory requirement for the RPA to be assisted by a person with relevant qualifications.

¶18-100 Relevant Planning Authority to prepare planning proposal Section 55 requires the RPA to prepare a planning proposal. It should be noted that the planning proposal is to be prepared by the RPA and not another party. The question arises as to the relationship between the obligation of the RPA to prepare the planning proposal and s 54(3) that permits the RPA to require the owner of land who is requesting a rezoning to carry out studies. It appears that s 55(1) and s 54(3) can operate together. Section 55(1) requires the RPA to prepare the planning proposal and if the proposal relates to a rezoning at the request of the landowner, that the RPA can require the landowner to prepare other studies in providing details relating to the proposal, but not the planning proposal itself. Hence in relation to the planning proposal, it appears that the decision of McClelland CJ in Burns Philp remains applicable. This requires a planning proposal to be “disinterested” and not an “advocate’s document which presupposes the desirability of the contemplated

development”. However, studies other than the planning proposal itself may be prepared by a landowner, provided such studies are required by the RPA.

¶18-110 Contents of a planning proposal A planning proposal is required to contain the following: (1) a statement of objectives or intended outcomes of the proposed instrument. These are expressed in the alternative, but are essentially the same, with the difference being a statement of objectives is a broader statement of the aims of the proposed instrument, while the intended outcome is a narrower statement of what the proposed instrument seeks to achieve. It is noted that what is required is not the intended outcomes contained in the proposed instrument (that is, what the proposed instrument says or provides) but the intended planning outcomes which will result from the making of the proposed instrument (that is, what can or will occur as a result of the proposed instrument). Thus, a statement of objectives could be to rezone land to make development for the purpose of retail premises permissible with consent, while the intended outcome of the proposed instrument could be to permit the construction of a shopping centre on land. Of interest is whether both of these elements are required, rather than only one. While they are expressed in the alternative in s 55(2)(a), s 55(2)(c) suggests a legislative intention that both elements are in fact required. (2) an explanation of the provisions that are to be included in the proposed instrument. It is noted that the planning proposal is not required to include a draft of the proposed instrument. All that is required is an explanation of the proposed instrument. This raises the issue considered by the NSW Court of Appeal in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 (Litevale) where the explanation of the provisions differs from the terms of the proposed instrument, such that the explanation is misleading. However, while in Litevale the provision of an explanation was not required, now s 55 requires an explanation. It is likely that the

principles in Litevale remain applicable as a basis for challenge of the validity of an LEP on the grounds that the explanation is misleading. Further, it is noted that the inclusion of the draft LEP instrument itself in the planning proposal without an explanation does not comply with s 55(2)(b). An explanation is defined as a statement that makes something clear as a reason or justification for an action according to the Oxford Dictionary. In practice, most planning proposals include a draft of the actual proposed LEP itself. (3) a justification of those objectives, outcomes and provisions, and the process for their implementation, including whether the proposed instrument will comply with relevant directions under s 117. This requires the planning proposal to include the following elements: • a justification of the three matters required under s 55(2)(a) and (b), namely: (i) the objectives of the proposed instrument (ii) the intended outcomes of the proposed instrument, and (iii) the provisions that are to be included in the proposed instrument. A justification is the action of showing something is right or reasonable or good reason for something that exists or has been done, according to the Oxford Dictionary. The structure of s 55(1)(c) suggests that the proper construction of s 55(2)(a) requires the planning proposal to include both a statement of the objectives of the proposed instrument and a statement of the intended outcomes of the proposed instrument, rather than just one of these. The requirement for a justification of the “provisions” of the proposed instrument presumes that the actual terms of the draft instrument must exist, rather than some inchoate idea as yet unformulated. Similarly, to comply with s 55(2)(b) it is

rather difficult to give an explanation of something which does not actually exist. • a justification of the process for “their implementation”, with reference to “their” being a reference to the objectives, the outcomes and the provisions of the proposed instrument. Thus, the planning proposal needs to outline by what method or process it is proposed to implement or bring to fruition the objectives, the outcomes and the provisions, and a justification of that method or process. • whether the proposed instrument will comply with the relevant directions under s 117. Again this presupposes that the proposed instrument exists. This requirement suggests this is a subset of the process of implementation, but the issue of compliance with s 117 directions is unrelated to the process of implementation of a proposed LEP. Additionally, it does not address the issue raised in Smith v Wyong [2003] NSWCA 322 (Smith v Wyong) that it is a breach of the EPA Act for an RPA to prepare a planning proposal for a draft LEP contrary to a s 117 direction. This provision raises the issue of whether what is required by s 55(2)(c) is a statement of whether the proposed instrument will comply with s 117 directions or whether it requires a justification of the compliance or non-compliance. On its proper construction, it appears that s 55(2)(c) requires a justification of the process of implementation of the objectives, outcomes and provisions, within which must be included a statement of whether the proposed instrument complies with s 117 directions, rather than any justification of this. (4) if the proposed instrument is to include maps, such maps must be included in the planning proposal and those maps are required to contain sufficient details to indicate the substantive effect of the proposed instrument. (5) the details of the community consultation that is to be undertaken before consideration is given to the making of the

proposed instrument. This raises two issues: (i) when is the community consultation to be undertaken? The requirement is for the community consultation to be undertaken “before consideration is given to the making of the proposed instrument”. Given that the power to make the instrument is vested in the Minister under s 53(1), the community consultation must occur at any time prior to the Minister considering whether to make the proposed instrument. This is further reinforced by s 59(2). If the Minister considers the question of whether he should make the proposed instrument at any stage prior to the public consultation, then a breach will result. However s 56(2) provides that the Minister at the gateway determination makes a determination of the community consultation requirements and at the same time determines whether the matter should proceed. Hence, the Minister’s consideration at the gateway determination is limited to whether a proposal should proceed to community consultation and not whether it should be made, but the Minister is permitted to consider and decide that it should not be made. (ii) can a planning proposal propose that there should be no community consultation? The provisions of s 55(2)(e) require the planning proposal to include the “details” of the community consultation that is to be undertaken. It is thus limited to the details of how community consultation should be undertaken and does not extend to proposing no community consultation, which would be in conflict with the objectives of the EPA Act in s 5(c). Section 55(3) gives the Director-General power to issue “requirements” relating to the preparation of a planning proposal. These requirements may be either general or specific. However, given there is no requirement for an RPA to notify the Director-General of a decision to prepare a planning proposal, there is no mechanism for the Director-General to be advised of specific proposals to enable the issuing of specific requirements for such a planning proposal.

¶18-120 Gateway process and community consultation The Department of Planning has issued two guides regarding the gateway process: (1) A Guide to Preparing Local Environmental Plans,8 and (2) A Guide to Preparing Planning Proposals.9 The first of these guides constitutes the requirements of the DirectorGeneral under s 55(3), although not the second. The Guidelines as they relate to s 55(2)(c) do not appear to be legislative requirements, but appear to be directed only towards a justification of the provisions, and not the objectives, outcomes or process of their implementation. In relation to community consultation, the following information is provided in the Guidelines: “4.4 Director-General’s approval before community consultation The Director-General of Planning (or delegate) must approve the form of planning proposals, as revised to comply with the gateway determination, before community consultation is undertaken. [EP&A Act s. 57(2)] ... 4.5 Community consultation The gateway determination will specify the community consultation that must be undertaken on the planning proposal. The consultation will be tailored to specific proposals generally as follows: planning proposal type

exhibition period

Low impact planning proposals*

14 days

All other planning proposals

28 days

*‘Low impact planning proposal’ means a planning proposal that, in the opinion of the person making the gateway determination: is consistent with the pattern of surrounding land use zones and/or land uses; is consistent with the strategic planning framework; presents no issues with regard to infrastructure servicing; is not a principal LEP; and does not reclassify public land.

Community consultation is commenced by giving notice of the public exhibition of the planning proposal: • in a newspaper that circulates in the area affected by the planning proposal; • on the web-site of the RPA; and • in writing to adjoining landowners, unless the planning authority is of the opinion that the number of landowners makes it impractical to notify them. The written notice must: • Give a brief description of the objectives or intended outcomes of the planning proposal; • Indicate the land affected by the planning proposal; • State where and when the planning proposal can be inspected; • Give the name and address of the RPA for the receipt of submissions; and • Indicate the last date for submissions. During the exhibition period, the following material must be made available for inspection: • The planning proposal, in the form approved for community consultation by the Director General of Planning;

• The gateway determination; and • Any studies relied upon by the planning proposal. The community consultation is complete only when the RPA has considered any submissions made concerning the proposed LEP and the report of any public hearing into the proposed LEP. [EP&A Act s. 57(8)]. 4.6 Public hearings The RPA can decide to conduct a public hearing into any issue associated with a planning proposal. [EPA Act s. 57(6)] …” The above section of the Guidelines does not form part of the Director-General’s requirements under s 55(3) and hence, is guidance only with no formal status. Hence, the community consultation requirements can only be formally ascertained by examination of the gateway determination under s 56. Section 56(1) provides that after preparing a planning proposal, the RPA “may forward it to the Minister”. By using the words “may forward it to the Minister”, s 56(1) recognises that an RPA has an option under the Act not to forward a planning proposal to the Minister for a gateway determination. Hence, an RPA can, in effect, decide not to proceed with a planning proposal by not forwarding it to the Minister for a gateway determination. The question arises as to whether a decision by a council as RPA not to forward a planning proposal to the Minister for a gateway determination under s 56(1) could form the basis of the Minister appointing another RPA under s 54(2)(c). Such action would not constitute a failure to comply with its obligations with respect to the making of the proposed instrument, but it could constitute a failure to carry out those obligations in a “satisfactory manner” in the opinion of the Minister. This would be subject to the earlier discussion regarding whether a council should be afforded procedural fairness prior to the exercise of such a power. Under s 56(2), as part of a gateway determination, the Minister is required to make a decision regarding six matters as follows: (1) Whether the matter should proceed, with or without variation.

This enables the Minister to decide not to proceed. This also enables the Minister to decide to proceed with a variation. The Minister’s power to vary is constrained presumably by the requirement that any variation proposed by him cannot be such that the proposed instrument is in fact a different or new instrument, in accordance with Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 (Leichhardt [No 2]), John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213 (John Brown Lenton) and Bryan v Lane Cove Council [2007] NSWLEC 586 (Bryan). Subject to that qualification, this power is not subject to a requirement that a variation relate to a matter of State or regional environmental planning significance. (2) Whether the matter should be resubmitted for any reason, including for further studies or other information or for the reason of the planning proposal. This power is expressed broadly and is not confined to matters of State or regional environmental planning significance. (3) The community consultation requirements, before consideration, are given to the making of the proposed instrument. An interesting aspect of the 2008 Amendments is the circumlocution regarding community consultation. Minister Sartor in his Agreement in Principle Speech was emphatic in saying: “These provisions provide … a strong emphasis on effective community consultation. In response to community submissions on the exposure bill, the consultation provisions have been amended to clarify that a local environmental plan cannot be made unless the applicable community consultation requirements agreed at Gateway have been complied with and submissions have been considered. Consultation will be tailored to the specific proposal, meaning that proposals with potentially significant environmental policy or neighbourhood implications will have more extensive consultation requirements than a simpler, smallscale proposal. Under the current system there is a one-size-

fits-all approach, irrespective of the significance of the proposal.”10 This certainly suggests that what the 2008 Amendments proposed was more and better community consultation and not less. The formulation of s 56(2)(c) is not whether there should be community consultation as in s 56(2)(e) and hence on its terms, it does not appear open to the Minister under s 56(2)(c) to determine no community consultation is required. Section 56(3) provides a gloss on this by providing that a determination of the community consultation requirements includes a determination under s 73A or other provision of the Act that the matter does not require community consultation. Section 73A relates to expedited amendments of EPIs in the limited circumstances provided in s 73A(1)(a)–(c). This only relates to amending EPIs. It appears that s 56(3) only permits a determination that a matter does not require community consultation where there is a determination under s 73A in relation to a expedited amendment or under another provision of the Act explicitly authorising a dispensation from the need for community consultation on a draft LEP, of which there is none at present. Section 56(4) enables regulations to be made providing for categories of planning proposals and prescribing the community consultation requirements for each category. To date no such regulations have been made. However, the previous provision in cl 13 of the Environment Planning and Assessment Regulation 2000 (NSW) of a minimum 28-day exhibition period for a draft LEP was deleted by the Environment Planning and Assessment Amendment (Plan Making) Regulation 2009 No 268 (NSW) (EPA Amendment Regulation 2009) commencing on 1 July 2009. This removes any base minimum standard for community consultation, rather casting doubt on the claims for more and better community consultation expressed in the Minister’s Agreement in Principle Speech. (4) Any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed

instrument. Hence, the Minister determines whether or not such consultation with affected State and Commonwealth agencies will occur. The previous requirement for consultation with councils when a draft instrument relates to land bordering another council has been removed. (5) Whether a public hearing should be held into the matter by the PAC or other specified person or body. Thus, a public hearing may be called at the discretion of the Minister and the Minister may utilise the PAC or any other person or body for such public hearing. (6) The times within which various stages of the procedure for the making of a proposed instrument are to be completed. The setting of any such time limits must be reasonable having regard to the NSW Court of Appeal decision in Balmain Association (see ¶18080). As the Court held there in the context of different provisions in s 118 of the EPA Act at p 630: “The power, by direction under the section, to fix the time for performance by the Council of its functions under s.68 has to be exercised according to law and hence consistently with the Act and the regulation. In the light of past delays the Minister, acting reasonably, would have been entitled to require the Council to perform these functions in a timely way and even expeditiously. However he could not by direction require performance in a time shorter than the minimum reasonably required by s.68 itself. Since a submission requesting a public hearing had been received by the Council, it was bound to consider whether it would arrange a public hearing in relation to the issues raised by that submission. In that regard it was fully entitled to receive expert advice from its permanent staff. If the Council decided to arrange a public hearing it would then be necessary to decide when, where and how the hearing should be conducted (s.68(1)).” Section 56(5) empowers the Minister to require a review of a

planning proposal, or part thereof, by or with the assistance of either the PAC or a JRPP if there has been any delay in the matter being finalised or for any other reason the Minister considers appropriate. This power is very broad. It is in all likelihood a power which can be exercised without any requirement to afford procedural fairness. Further, it can be invoked at any time in the process in relation to the planning proposal. Section 56(7) enables the Minister, having made a gateway determination, to alter it at any time. The effect appears to overturn any concept of “functus officio” in relation to a gateway determination at any stage in the process presumably up until an LEP is actually made. Section 56(8) seeks to deal with the consequences of a failure to comply with the requirements of the Minister’s gateway determination under s 56. It provides that a failure to comply with a requirement of the gateway determination does not prevent the making of a proposed instrument and once made does not invalidate any instrument. But if the failure to comply relates to the community consultation requirements, the proposed instrument cannot be made unless s 57 has been complied with. This appears to be an expression of legislative intention as to consequences of a failure to comply with a requirement of a gateway determination as provided for in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky). No doubt with the demise of privative clauses following the High Court decision in Kirk v Industrial Relations Commission [2010] HCA 1, such expressions of legislative intention will become more popular as a means to prevent the grant of relief by courts where there is no longer a bar on judicial review. But the scope of such provisions can only relate to a breach of a condition regulating the exercise of a statutory power and not to jurisdictional error. The intention in s 56(8) is that a failure to comply with a requirement of a gateway determination will not lead to either a

power for the courts to injunct and prevent the making of an LEP or to declare an LEP already made to be invalid. However, if the requirement of the gateway determination that has not been complied with is the community consultation requirements, the instrument cannot be made unless there has been an opportunity for the community to make submissions and for those submissions to be considered. This is likely to mean that a noncompliance with the community consultation requirements of a gateway determination will only be fatal to the resulting instrument if there was no community consultation at all, but if there was an opportunity to make submissions and they were considered, this is sufficient, even if that person did not accord with the community consultation requirements of the gateway determination. The interesting corollary of s 56(8) is that the legislature, having provided for the consequences of non-compliance with the requirements of a gateway determination, has impliedly indicated that other breaches of the plan making provisions in the EPA Act should be capable of being injuncted or declared invalid. Section 57 relates to community consultation. The requirement for community consultation on a draft LEP is in accordance with the community consultation requirements as approved by the Minister in the gateway determination under s 56(2) (c). A breach of those requirements has been discussed earlier. Footnotes 8

NSW Department of Planning, July 2009, A Guide to Preparing Local Environmental Plans, Sydney, ISBN 978– 0–7347–0486–0.

9

NSW Department of Planning, July 2009, A Guide to Preparing Planning Proposals, Sydney, ISBN 978–0–7347– 0487–9.

10

NSW Parliament, 15 May 2008, Legislative Assembly Hansard, p 7695.

¶18-130 Consideration after community consultation The document that is required to be made publicly available is the planning proposal, as revised under the gateway determination, although there is a capacity for the Director-General to approve a summary of “detailed provisions” (s 57(2)). Any person may make a written submission to the RPA during the period of community consultation (s 57(3)). The RPA has a discretion to make such submissions publicly available, but is not required to do so (s 57(4)). A person may request a public hearing in a submission on a draft LEP and the RPA has a discretion to arrange a public hearing (s 57(5)). Such a hearing is into “the issues raised in the submission” (s 57(5)). Alternatively, even if there is no request for a public hearing in a submission, the RPA has the discretion to arrange a public hearing on any issue (s 57(6)). The report of any hearing is to be submitted to the RPA who is required to make that report publicly available (s 57(7)). The consultation process is completed when the RPA has considered submissions or the report of any public hearing (s 57(8)). Section 58 deals with the process by the RPA following completion of community consultation. The RPA may vary the planning proposal after the completion of community consultation (s 58(1)). Such variations need not arise from the RPA’s consideration of submissions on the draft or the report of a public hearing. However, the variations made by the RPA after the community consultation process cannot be such that it effectively creates a new planning proposal rather than a varied one. Where the RPA varies a planning proposal, it is not required to undertake further community consultation unless the Minister revises the gateway determination under s 56. Thereafter, the RPA is required to forward a revised planning proposal to the Minister (s 58(2)) and may request the Minister to determine that the matter not proceed (s 58(3)). The

requirement that the RPA may request the Minister to decide that the matter not proceed in s 58(3) suggests that the RPA is required under s 58(2) to forward all planning proposals to the Minister, even if as a result of its consideration after the community consultation process, the RPA itself does not wish to proceed with the proposal. Only the Minister has the power under s 58(4) to decide that the matter should not proceed.

¶18-140 Minister may make a Local Environmental Plan Section 59 deals with the making of an LEP. The responsibility for arranging the drafting of the LEP is given to the Director-General. However, as earlier discussed in relation to s 55, a draft of the LEP is likely to have been required earlier in the process, so that there could be an explanation of its provisions under s 55. The responsibility for making an LEP rests with the Minister under s 59(2). The Minister is empowered to make the LEP “in the terms the Minister considers appropriate”. The Minister may make the LEP with or without variation to the proposals submitted by the RPA. Alternatively, the Minister may decide not to make the LEP (s 59(2)(b)) or the Minister may defer the inclusion of a matter in a proposed LEP (s 59(3)). Where the Minister declines to make an LEP or defers matters in an LEP, the Minister may (but is not required to) specify to the RPA what procedures must be complied with before the matter is reconsidered by the Minister (s 59(4)). A power to make regulation in relation to the making of EPIs is contained in s 60. This regulation-making power has been exercised with the making of the EPA Amendment Regulation 2009, which largely deals with saving and transitional matters. Division 4B (s 72I–72K) of the EPA Act deals with development applications (DAs) which can only be carried out if an EPI is amended. These provisions explicitly permit the lodgment of a DA for prohibited development and its consideration by a consent authority at the same

time as a proposal to make an EPI to permit the development under Div 4B. It permits joint public advertisement in the same notice of both the EPI and the DA. However, Div 4B does not alter the otherwise existing requirement, that a consent authority cannot grant consent to prohibited development. Hence, any change to the relevant EPI must be effected prior to any grant of development consent. Division 4B only enables joint advertising of the EPI and the DA. The key elements regarding the Minister’s power to make an LEP after the 2008 Amendments are as follows: • There is no requirement for the Minister to base a decision to make an LEP on any expert report from the Director-General, as existed in the former s 69. • There is no requirement for the Minister to consider any report from the RPA or indeed any report relating to the community consultation process. • There is no requirement for the preparation of an environmental study as part of the development of a planning proposal, so the separation between constraints and opportunities informing the planning outcome and post hoc justification is blurred. • There is no limit on the range of relevant matters the Minister can consider in making a decision whether or not to make an LEP. Thus, the Minister is not required to consider only matters of State and regional environmental planning significance, but may consider matters of local planning significance. • The Minister may make an LEP as submitted or as varied by the Minister. However, variation may not be such as to make the LEP a new planning proposal rather than a varied one. Alternatively, the Minster may decide not to make the LEP at all or may decide to defer part of the LEP. The 2008 Amendments had three significant underlying features: (1) The 2008 Amendments swept away the last vestiges of shared

responsibility for plan making between the Minister and local government. No longer is the Minister confined to matters of State and regional environmental planning significance. Henceforth, all LEPs are the product of the Minister, who has ultimate authority to determine all matters in an LEP. In effect, the power of the Minister reverted to what it was in relation to Interim Development Orders under Pt 12A of the Local Government Act 1919 (NSW) prior to 1980, killing off the experiment in devolution and shared responsibility between the Minister and local government. (2) The 2008 Amendments swept away the balance of rights of stakeholders in the LEP-making process. The former provisions relating to the making of LEPs sought to provide overall responsibility and carriage of the LEP preparation process for local councils. But equally, the former provisions recognised a need to balance that responsibility with rights for other stakeholders — the public, land owners, affected public authorities, developers, the Department of Planning and the Minister — and for those rights to be potentially enforceable and hence act as a constraint on the exercise of power. The 2008 Amendments removed many rights and converted others from rights to potential gifts at the discretion of the Minister, with more limited opportunities for enforcement to act as a constraint of the abuse of power. (3) The 2008 Amendments removed the requirement for professional assessment of draft LEPs by the Director-General of the Department (under the previous s 65 and s 69) and transferred the new equivalents to the Minister. The result is to de-professionalise the process of plan making. The key driver behind the 2008 Amendments related to the length of time for planning decisions to be made, the complexity of the process, and that the planning process adds to costs and limits affordability. Underlying this, but not articulated, lay concerns regarding the performance of local councils. The solution was to remove powers from local councils and transfer them to the Minister, without directly

addressing the perceived issues regarding the performance of local councils.

¶18-150 Principles regarding the process for making Local Environmental Plans The key principles derived from the discussion on the process for making an LEP are as follows: Principle 1: The power to make LEPs rests solely with the Minister (s 53(1) of the EPA Act). Principle 2: An LEP may be made over any area within the jurisdiction of the State of New South Wales, including areas outside an LGA under the responsibility of a local council formed under the LG Act 1993, such as coastal waters or the unincorporated area of Western New South Wales (s 53(1) of the EPA Act). Principle 3: Where land does not form part of an LGA, the Minister may make an order that designates such land as part of a council’s LGA for the purposes of preparing an LEP, provided the land in question adjoins the LGA of the council concerned (s 54(6) of the EPA Act). Principle 4: A proposed LEP is prepared by the RPA. The RPA is the council for the LGA covering the affected land unless the Minister directs that the Director-General or another person or body (prescribed by regulations) is the RPA (s 54(1) of the EPA Act). Principle 5: The Minister is empowered to direct that the DirectorGeneral or another person or body is the RPA for a proposed LEP (and hence displace the local council as the RPA) in the following circumstances: • if the proposed instrument relates to a matter of State or regional environmental planning significance, in the opinion of the Minister • if the proposed instrument is, in the opinion of the Minister, consequential on approval of a concept plan, another EPI, another instrument or a change to the Standard Instrument

• if the PAC or a JRPP has recommended to the Minister that the proposed instrument should be made • if a local council, in the opinion of the Minister, has failed to comply with its obligations regarding making the proposed instrument or has not carried out those obligations in a satisfactory manner, and • if the proposed instrument is to apply to land not within an LGA (subject to Principle 3 above) (s 54(2) of the EPA Act). Principle 6: If the Minister appoints the Director-General or another person or body as the RPA instead of the local council based on that council’s failure to comply with its obligations or to not carry out those obligations in a satisfactory manner, it is likely that the Minister owes the council a right of procedural fairness before making such a decision, and such a decision would be open to judicial review based upon its reasonableness (Balmain Association). Principle 7: Before an LEP can be made, the RPA is required to prepare a planning proposal which should include the following: • a statement of the objectives or intended outcomes of the proposed instrument • an explanation of the provisions to be included in the proposed instrument • a justification of those objectives, outcomes and provisions, and the process for their implementation, including whether the proposed instrument will comply with relevant s 117 directions • relevant maps to be adopted by the proposed instrument, and • details of the community consultation to be undertaken. In preparing a planning proposal, an RPA needs to comply with the requirements issued by the Director-General in the Department of Planning’s “A Guide to Preparing Local Environmental Plans” (s 55 of the EPA Act).

Principle 8: It is likely that any explanation of a proposed LEP in a planning proposal exhibited under s 57 which is misleading would result in the invalidity of the planning proposal and any LEP subsequently made (Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317, Litevale, Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 and Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65). Principle 9: Where a planning proposal is prepared contrary to a s 117 direction, this would result in a breach of the EPA Act, but no invalidity is likely to arise as a consequence of such breach (Smith v Wyong). Principle 10: A planning proposal is prepared by the RPA and not another person or body, including a developer or owner seeking the proposed LEP. Hence, it is likely that a planning proposal needs to be disinterested and not an advocate’s document which presupposes the desirability of the contemplated development. A planning proposal must not be prepared by or on behalf of another party, such as a developer or owner (Burns Philp and s 55(1)). The planning proposal may focus on a particular use however (Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83). However, where the owner of land requests the RPA to prepare a planning proposal, the RPA can require the owner to carry out studies and provide information, or pay the costs of the RPA (s 54(3) of the EPA Act). This provides a qualification on the suggested general principle outlined above, but it is suggested this only permits owner-prepared studies which are not part of the planning proposal itself, but studies which are supporting or ancillary to the planning proposal. Principle 11: Where an RPA has prepared a planning proposal, the RPA may forward it to the Minister (s 56(1) of the EPA Act). However, the RPA is not required to forward a planning proposal. The RPA has the discretion to abandon the planning proposal and take no further action. Principle 12: Where the RPA forwards a planning proposal to the

Minister, the Minister is required to make a gateway determination of the following: • whether the matter should proceed, with or without variation • whether the matter should be resubmitted, including for further studies or other information, or for the revision of the planning proposal • the community consultation requirements before consideration is given to making the proposed instrument • any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument • whether a public hearing is to be held into the matter by the PAC or another specified person or body, and • the times within which various stages of the procedure for the making of the proposed instrument are to be completed. (s 56 of the EPA Act). Principle 13: As part of the Minister’s gateway determination under s 56, the Minister may decide that the matter should proceed with variations as determined by the Minister (s 56(2)(a) of the EPA Act). Thus, the Minister has a power to vary a planning proposal without limitation or qualification as to the variation. However, this power to vary is likely to be subject to the constraint that the variation cannot be such that in effect a new or different planning proposal has been created, rather than the variation of an existing one in accordance with the principles in Leichhardt [No 2], John Brown Lenton, Bryan and Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128. The Minister also has the power to return a planning proposal to the RPA for the undertaking of further studies or information or revision of the planning proposal and thereafter re-submission to the Minister (s 56(2)(b) of the EPA Act). The resubmitted planning proposal, similarly, is likely to be required to be not a new or different

planning proposal. Principle 14: As part of the Minister’s gateway determination under s 56, the Minister is required to determine the community consultation requirements for the planning proposal and proposed instrument (s 56(2)(c) of the EPA Act). In determining the community consultation requirements, it is likely such a determination does not extend to deciding to have no community consultation, except for the narrow circumstances in s 73A. Regulations may be made to provide for the categorisation of planning proposals for the purposes of this section and to prescribe standard community consultation requirements for each category (s 56(4)), but no regulations have been made. Principle 15: As part of the Minister’s gateway determination under s 56, the Minister may make a determination that the matter does not require community consultation, but he may only do so if authorised by s 73A or another provision of the Act. There are no other provisions to dispense with community consultation other than s 73A. Section 73A permits a dispensation from any community consultation requirements in respect of an amending EPI seeking to correct obvious minor errors, deal with consequential, transitional, machinery or minor matters, or make provisions which the Minister considers will not have any significant adverse impact on the environment or adjoining land (s 73A and s 56(3) of the EPA Act). Principle 16: It is likely that the statutory provisions relating to community consultation in relation to the preparation of an LEP displace the normal common law requirements for procedural fairness. Hence, an RPA is not subject to any duty to afford procedural fairness to any affected person over and above those statutory requirements for community consultation following Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6 (but not the dissent in that case by Spigelman CJ). Principle 17: As part of the Minister’s gateway determination under s 56, the Minister may determine any consultation required with any State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument (s 56(2)(d) of the EPA Act). The Minister has the discretion to determine who will be

consulted and the extent of that consultation. There is a potential that a decision by the Minister not to require consultation with any authority who may be adversely affected is capable of review on the grounds of reasonableness as in Belongil Progress Association Inc v Byron Shire Council [1999] NSWLEC 271. Principle 18: As part of the Minister’s gateway determination under s 56, the Minister has a discretion to determine that a public hearing is to be held into the matter either by the PAC or some other specified person or body but is not required to do so (s 56(2)(e) of the EPA Act). Principle 19: As part of the Minister’s gateway determination under s 56, the Minister may determine the times within which various stages of the procedure for the making of the proposed instrument should be completed (s 56(2)(f) of the EPA Act). Principle 20: The Minister has the power to arrange for the review of a planning proposal or part thereof as part of a gateway determination to be undertaken by or with the assistance of the PAC or a JRPP if there has been any delay in the matter being finalised or if the Minister for any other reason considers it appropriate to do so (s 56(5) of the EPA Act). Principle 21: Neither the RPA in forwarding a planning proposal to the Minister nor the Minister in making a gateway determination are functus officio after they have completed these tasks. Hence, the RPA may at any time forward a revised planning proposal to the Minister (s 56(6) of the EPA Act), while the Minister may at any time alter his gateway determination (s 56(7) of the EPA Act). Principle 22: Once the Minister has made a gateway determination under s 56, any failure to comply with a requirement of that determination does not prevent the proposed instrument from being made nor does it invalidate the instrument once it is made. However, if community consultation is required, the instrument is not to be made unless the community have been given an opportunity to make submissions and these are to be considered under s 57 (s 56(8) of the EPA Act). The provision seeks to express a legislative intention regarding the consequences of a failure to comply with a requirement of the Minister’s gateway determination as provided in Project Blue

Sky. That intention is that a failure to comply with a requirement of a gateway determination will not lead to either a power for the courts to injunct and prevent the making of an LEP or to declare an LEP already made to be invalid. However if the requirement of the gateway determination that has not been complied with is the community consultation requirements, the instrument cannot be made unless there has been an opportunity for the community to make submissions and for those submissions to be considered. This is likely to mean that a non-compliance with the community consultation requirements of a gateway determination will only be fatal to the resulting instrument if there was no community consultation at all, but if there was an opportunity to make submissions and they were considered, this is sufficient, even if that process did not accord with the community consultation requirements of the gateway determination. The interesting corollary of s 56(8) is that the legislature, having provided for the consequences of non-compliance with the requirements of a gateway determination, has impliedly indicated that other breaches of the plan-making provisions in the EPA Act should be capable of being injuncted or declared invalid. Principle 23: Before an LEP is made, the RPA must consult the community in accordance with the community consultation requirement as determined in the gateway determination for the planning proposal (s 57(1)). The document that is required to be made publicly available is the planning proposal as revised under the gateway determination, although there is a capacity for the DirectorGeneral to approve a summary of “detailed provisions” (s 57(2)). Any person may make a written submission to the RPA during the period of a community consultation (s 57(3)). The RPA has a discretion to make such submissions publicly available, but is not required to do so (s 57(4)). A person may request a public hearing in a submission on a draft LEP, and the RPA has a discretion to arrange a public hearing (s 57(5)). Such a hearing is into “the issues raised in the submission” (s 57(5)). Alternatively, even if there is no request for a public hearing in a submission, the RPA has the discretion to arrange a public hearing on any issue (s 57(6)). The report of any hearing is to be submitted to the RPA who is required to make that report publicly available (s 57(7)). The consultation process is completed when the RPA has

considered submissions or the report of any public hearing (s 57(8)). Principle 24: The RPA may vary the planning proposal after the completion of community consultation (s 58(1)). Such variations need not arise from the RPA’s consideration of submission on the draft or the report of a public hearing. However, the variations made by the RPA after the community consultation process cannot be such that it effectively creates a new planning proposal rather than a varied one. Where the RPA varies a planning proposal, it is not required to undertake further community consultation unless the Minister reviews the gateway determination under s 56. Thereafter, the RPA is required to forward a revised planning proposal to the Minister (s 58(2)) and may request the Minister to determine that the matter not proceed (s 58(3)). The requirement that the RPA may request the Minister to decide that the matter not proceed in s 58(3) suggests that the RPA is required under s 58(2) to forward all planning proposals to the Minister, even if, as a result of its consideration after the community consultation process, the RPA itself does not wish to proceed with the proposal. Only the Minister has the power under s 58(3) to decide that the matter should not proceed. Principle 25: The responsibility for arranging the drafting of the LEP is given to the Director-General. However, as earlier discussed in relation to s 55, a draft of the LEP is likely to have been required earlier in the process, so that there would be an explanation of its provisions under s 55. The responsibility for making an LEP rests with the Minister under s 59(2). The Minister is empowered to make the LEP “in the terms the Minister considers appropriate”. The Minister may make the LEP with or without variation to the proposals submitted by the RPA. Alternatively, the Minister may decide not to make the LEP (s 59(2)(b)) or the Minister may defer the inclusion of a matter in a proposed LEP (s 59(3)). Where the Minister declines to make an LEP or defers matters in an LEP, the Minister may (but is not required to) specify to the RPA what procedures must be complied with before the matter is reconsidered by the Minister (s 59(4)). Principle 26: A DA for prohibited development may be lodged with

and considered by a consent authority at the same time as consideration of a proposal to make an EPI to permit the development. Both proposals may be publicly exhibited and advertised together for the greater period for which either are required to be exhibited (s 72I–72K of the EPA Act). But a consent authority is not empowered to grant consent to prohibited development.

AMENDMENTS TO ENVIRONMENTAL PLANNING INSTRUMENTS AND THE MAKING, SCOPE AND POWER OF DEVELOPMENT CONTROL PLANS ¶19-010 Review and amendment of Environmental Planning Instruments An Environmental Planning Instrument (EPI) (see also Chapter ¶6) has legal force as a form of delegated legislation. Sections 73–74A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) deal with amendments to EPIs. Section 73 requires the Director-General (in relation to State Environmental Planning Policies (SEPPs)) and councils (in relation to Local Environmental Plans (LEPs) and Development Control Plans (DCPs)) to keep them under regular and periodic review. Section 74 requires that an EPI may be amended in whole or part by a subsequent EPI of either the same or a different type. Section 73A permits amendments to EPIs without complying with the conditions precedent in Pt 3 for the making of the EPI if it amends or repeals a provision of an EPI, provided it does one of the following: (1) corrects an obvious minor error (2) deals with consequential, transitional, machinery or minor matters, and

(3) makes provisions which the Minister considers do not need to comply with conditions precedent “because they will not have any significant adverse impact on the environment or adjoining land”. The first two circumstances for permitting an amendment without satisfying conditions precedent for the making of an EPI are unexceptional. However, the third is unusual, particularly the conditions precedents which can be disposed with include the preparation of a planning proposal, a gateway determination and community consultation (see Chapter ¶18). These dispensations are at the discretion of the Minister, drawing attention again to the breadth of Ministerial discretion. However, the construction of the third circumstance suggests that the requirement that a matter does not have any significant adverse impact on the environment or adjoining land is a jurisdictional fact, being a factual conclusion expressed in objective rather than subjective terms upon which found the jurisdiction to amend an EPI while dispensing with conditions precedent.

¶19-020 Principles regarding review and amendment of Environmental Planning Instruments The key principles derived from the discussion on the review and amendment of EPIs are as follows: Principle 1: An expedited amending EPI may be made by the Minister without compliance with any of the provisions of Pt 3 which are conditions precedent to the making of an EPI (ie need for a Relevant Planning Authority (RPA), a planning proposal, gateway determination, community consultation) if the proposed instrument is to correct an obvious minor error, deal with consequential, transitional, machinery or other minor matters, or make provisions which the Minister considers will not have any significant adverse impact on the environment or adjoining land. A determination by the Minister that a provision will not have any significant adverse impact on the environment or adjoining land is likely to be a jurisdictional fact and hence subject to judicial review (s 73A of the EPA Act).

Principle 2: An EPI may be amended in whole or part by a subsequent EPI whether of the same or a different type (s 74 of the EPA Act). An amending EPI must comply with the same requirements in Pt 3 as a principal EPI unless s 73A applies.

¶19-030 The making of Development Control Plans The EPA Act provides for the making of a DCP. It is important to note that a DCP is not an EPI and hence, does not have the same force and effect as an EPI. In particular, a DCP does not have the powers that an EPI has to provide that development does not need consent (s 76), to require the obtaining of a development consent (s 76A) or to prohibit development (s 31 and s 76(b)). Hence, it lacks the fundamental character of an EPI, which (as stated earlier) has legal force as a form of delegated legislation. A head of consideration Rather, the sole role of a DCP is an advisory one, as a head of consideration or evaluation criteria for a consent authority in determining a development application (DA) under s 79C. The precise meaning of this role as a head of consideration in the determination of a DA is considered further in Chapters ¶23 and ¶24. When originally enacted, the EPA Act authorised the preparation by a council of a DCP to expand the provisions of an LEP.

¶19-040 The 1985 and 2005 Amendments The provisions of s 72 relating to DCP were amended in the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments), and also minor changes thereafter, and were later repealed by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments). The 1985 Amendments enabled a DCP to be prepared providing for detailed provisions than are contained in a draft LEP, as well as an LEP formally made.

The 2005 Amendments inserted completely new provisions relating to DCPs with s 74B–74F replacing the former s 72. In his Second Reading Speech on the 2005 Amendments, the Minister for Infrastructure and Planning, the Hon Craig Knowles MP, said: “The bill contains amendments to provisions regarding development control plans (DCPs). These changes are aimed at rationalising the number of DCPs, clarifying their relationship to environmental planning instruments and enabling an owner of land to prepare a DCP instead of a master plan. The bill aims to achieve a reduction in the number of DCPs by generally allowing one only to apply to a site. This means that in future a DCP may cover the whole local government area, a precinct or a site. The bill also clarifies that a development control plan may not duplicate the provisions of an environmental planning instrument, be inconsistent with an instrument or contain provisions that prevent compliance with an instrument. The bill provides for development control plans to replace master plans. Master plans have become another layer in the planning system. To simplify the system, in the future master planning will be implemented through development control plans and staged development approvals. The bill delivers this by allowing an environmental planning instrument to require that a development control plan should be prepared by, or on behalf of, an owner of land before development may occur. … Local councils will not be required to remake all DCPs within a set time, although it is expected that many councils will, in practice, review their DCPs at the same time as preparing their new local environmental plan. A transitional provision also deems all existing master plans to be DCPs, and deems all existing provisions that require a matter plan to require a DCP.”1 These were subject to a minor amendment in the 2008 Amendments. Footnotes

1

NSW Parliament, 27 May 2005, Legislative Assembly Hansard, p 16332 JJ.

¶19-050 Statutory provisions, scope and power of Development Control Plans The current provisions in the EPA Act relating to DCPs are contained in s 74B–74F. The key features of the current statutory provisions are as follows: (1) A DCP is prepared by the RPA, a term which is defined differently for its use in relation to DCPs in s 74B than for its use in relation to LEPs in s 54. The Director-General is the RPA for a SEPP and the local council is the RPA for an LEP. (2) There is no capacity for the Minister to change the RPA for a DCP as there exists in relation to LEPs, but the Minister has sweeping powers to direct a council in relation to DCPs and to step in and override a council under s 74F discussed below. (3) A DCP may be prepared by the RPA “to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned” (s 74C(1)(a) of the EPA Act). As a reference to an EPI includes a proposed EPI (s 74B(2)), a DCP may be prepared to also achieve the purpose of a proposed EPI. (4) A DCP is prepared by or on behalf of the RPA and hence it is not the product or creation of a third party or developer, and hence the decision in Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGERA 420 (Burns Philp) is likely to be also applicable to DCPs subject to the exception in s 74D(5) discussed below. (5) There are three elements of a DCP:

(i) it is to make more detailed provision than an EPI (ii) it relates to development, and (iii) it is designed to achieve the purposes of an EPI. (6) A DCP also has the following potential functions: • to identify development as advertised development, and • to provide for, or exclude public or particular advertising or notification of other development, reviews of determinations and applications for (s 94C(1)(b) and (c)) modification under s 96. (7) Only one DCP can apply to the same land (s 94C(2)). (8) A provision of a DCP has no effect if it is the same as a provision in an applicable EPI or inconsistent with an applicable EPI (s 74C(5)). (9) An EPI may require a DCP before development may be carried out. However, in these circumstances, a DCP may be prepared and submitted to the RPA by the owners of the land. If the RPA refuses to make a DCP so submitted to it (or delays making a decision for more than 60 days), the owners may lodge a DA despite the requirement in the EPI relating to the preparation of a DCP. The Minister may step into the shoes of the RPA and make the DCP in these circumstances, but only if the EPI authorises the Minister to so do (s 74D(5)). This is a somewhat clumsy method of addressing the circumstances where an EPI requires a DCP as a pre-condition to development proceeding, but the consent authority then blockades the making of a DCP, effectively depriving an owner of any recourse to appeal. Perhaps it would be simpler to prohibit an EPI from containing a requirement for the making of a DCP as a pre-condition to the lodgment and determination of a DA. (10) The Minister is empowered, subject to the regulations, to direct

a council to make, amend or revoke a DCP in the time and manner specified, and a council must comply with any such direction. If the council fails to comply, the Minister may step in or make the DCP (s 74F). This power enables the Minister to override a council in relation to DCPs without reference to any circumstance or in relation to any matter. It again points to the sweeping powers of the Minister to intervene in matters of local detail, such as a council’s DCP and to take such action untrammelled by constraints such as defining the circumstances which would trigger such intervention, the scope of the Minister’s power, or the requirement for any professional report from the Director-General or any inquiry.

¶19-060 Guideline Drafting and Design v Marrickville Municipal Council — effect and validity of a Development Control Plan In Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 (Guideline Drafting), Bignold J in the Land and Environment Court of NSW (NSWLEC) heard an appeal on a question of law in relation to the continued use of the first floor level of a threestorey commercial building at Marrickville as a refreshment room and milk bar. The Council had made a DCP which restricts the location of refreshment rooms to the ground floor of buildings, although the deemed EPI made such a development permissible. The issue before Bignold J was the effect and validity of the DCP. The applicant submitted the DCP was invalid to the extent that it absolutely prohibited the establishment of refreshment rooms on other than the ground floors of buildings and was therefore inconsistent with the provisions of the applicable deemed EPI. At the time of the appeal, the original terms of s 72 applied which required that a DCP “generally conform” to the provisions of the LEP than are contained in the LEP. The current terms of the EPA Act remove entirely the need for the DCP to generally conform with the LEP, while the test in relation to more detailed provisions now relates to the purposes of the LEP and not the LEP itself. Bignold J held at p

278–279: “In my opinion cl 6.1 of the Development Control Plan is ultra vires s 72 in as much as it does not ‘generally conform’ to the provisions of the relevant local environmental plan (which the parties have assumed the Marrickville Planning Scheme Ordinance to be), which in the general business 3(a) zone provides for (see cll 23 and 24) the erection and use of buildings for the purposes of ‘refreshment rooms’ (defined by cl 4(1) to mean ‘restaurant, café, tea room, eating-house or the like’) with the consent of the council. Where the provisions of the local environmental plan allow, with development consent, refreshment rooms to be developed in buildings without spatial or location limitation (as in the present case) a development control plan that absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as ‘generally conforming’ to the provisions of that local plan. The requirement to ‘generally conform’ confers a deliberate degree of latitude from absolute conformity. I take the meaning of ‘generally’ to be ‘for the most part, extensively’ or ‘in a general sense or way opposed to specially’: the Shorter Oxford English Dictionary. The concept of ‘general conformity’ is not foreign to the town planning context (eg, s 11(9) of the English Town and Country Planning Act 1971 (UK) requires a local plan to ‘conform generally to the structure plan’). In the present context the nature of the content of the development control plan designed to ‘provide more details than are contained in a local environmental plan’ (s 72(1)) suggests that the deliberate degree of latitude conferred is intended to accommodate the phenomenon of ‘detailed or particular planning’ as opposed to ‘general planning’. So understood I do not think it can be said of cl 6.1 of the Development Control Plan that by absolutely forbidding the establishment of refreshment rooms other than on the ground floors of buildings that it generally conforms to the local plan that imposes no spatial or locational restrictions on the establishment of refreshment rooms in buildings situate in business zones which

generally contain more than one floor. The prohibition contained in the Development Control Plan exceeds the limits of providing details for refreshment room development generally permissible in the business zones under the local environmental plan. A similar question arose in Willoughby Municipal Council v Local Government Appeals Tribunal (1974) 2 NSWLR 415; sub nom Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 where Samuels J had to consider whether the Chatswood Centre Study was ‘a detailed plan or design’ within cl 32(e) of the Willoughby Planning Scheme Ordinance. His Honour (at 421:309) stated: ‘It seems to me that the detailed plan or design contemplated by cl 32(e) is intended to be one which is controlled by and illustrates the existing planning scheme. A plan which illustrated graphically a development which was contrary to the provisions of the scheme would not in my opinion fall within the terms of cl 32(e). The observations of the Judicial Committee in Boland v Canadian National Railway Co [1927] AC 198 at 210 are here in point.’ In this case there was no definition of a ‘detailed plan or design’ and there was no statutory limitation on the content of such a plan or design. His Honour’s qualification or limitation (which I have underlined in the passage cited) concerning the relationship between the detailed plan or design on the one hand and the planning scheme on the other hand, is in my respectful opinion apposite to the interpretation of the statutory limitation on the content of a development control plan imposed by the words ‘generally conform’ in s 72(3) of the Environmental Planning and Assessment Act 1979. In the present case the provisions of cl 6.1 of the Development Control Plan are neither controlled by nor illustrative of the relevant provisions of the Marrickville Planning Scheme Ordinance concerning the establishment of refreshment rooms in the general business zone. Accordingly the assessor erred in upholding the validity of cl 6.1

of the Development Control Plan.” Thus, Bignold J held that, where an LEP permitted development, a DCP which seeks to absolutely prohibit that development does not generally conform with the LEP and is, as a result, invalid.

¶19-070 North Sydney Council v Ligon 302 Pty Ltd [No 2] — validity of a Development Control Plan This issue was revisited by the NSW Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 (Ligon No 2). This appeal related to proceedings regarding a development consent granted by Bannon J in the NSWLEC to a 14-storey residential flat building and an expanded North Sydney Businessman’s Club at Berry Street, North Sydney. The land was subject to a DCP which provided a maximum height for a residential flat building of three storeys, although the LEP contains no height restriction on the subject land. Bannon J originally granted consent; the Council appealed to the NSW Court of Appeal which upheld the appeal on the basis that Bannon J had failed to consider the DCP and remitted the matter to Bannon J. Bannon J reheard the matter and granted consent, holding that the court was not bound by the DCP. The Council appealed again to the NSW Court of Appeal claiming that Bannon J in effect found that the DCP was invalid. Cole JA (with whom Abadee AJA and Meagher JA agreed) held at p 30–31: “The consent of development control plans is addressed by s.72. It is to contain ‘the more detailed provisions’ than are contained in the North Sydney Local Environmental Plan, which council regards as necessary or desirable (s.72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (s.72(3)). However that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan, ‘more detailed provisions’ regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in

which a use is permissible with consent. There is no reason in principle why those ‘provisions’ would not have the character either of a ‘prohibition’ unless certain criteria are satisfied, or of a ‘development standard’, which permits a development only on satisfaction of certain criteria. The manner in which the requirement regarded as necessary or desirable by the council is expressed in a Development Control Plan does not determine the validity or invalidity as being within or without power. Content, not form, is to be looked at. To say that a particular use, here residential flat development in a special uses zone, is permissible only if it meets a certain development standard, or is prohibited if it does not is, in substance, the same. A particular provision, such as cl.14A North Sydney Local Environmental Plan, may not be a development standard within the meaning of that expression in the State Environmental Planning Policy No. 1, as Mayoh held, but it does not follow that such a height restriction may not be a ‘detailed provision’ within the meaning of that expression in s. 72 of the Environmental Planning and Assessment Act and thus may be contained in a development control plan. Nor is there any disconformity within the meaning of s. 72(3) of the Environmental Planning and Assessment Act between a provision permitting a use with consent in a zone specified in a North Sydney Local Environmental Plan and a provision in a Development Control Plan imposing criteria which must be met before the postulated consent may be granted. A provision in a Development Control Plan which says that a consent may be granted only if certain conditions are satisfied, or a consent may not be granted if certain conditions are not satisfied, simply specifies more detailed criteria or provisions which must be met before the development which may be permitted with consent under the North Sydney Local Environmental Plan can be granted. It follows that there is no reason in principle why a Development Control Plan may not, in specifying detailed provisions, incorporated by reference provisions found in the appropriate North Sydney Local Environmental Plan but

applicable to a different zone, as being necessary requirements before the permitted consent under the North Sydney Local Environmental Plan will be granted. The respondent has relied upon the decision of Bignold J in Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 at 278–279. It was there held that a development control plan which ‘absolutely prohibits the establishment or use of a refreshment room other than on the ground floor of a building cannot be reasonably regarded as ‘generally conforming’ to the provisions of (the) local plan’ where the local plan permitted such establishment generally in buildings in that zone. His Honour said: ‘I do not think that it can be said of cl. 6.1 of the development control plan that by absolutely forbidding the establishment of refreshment rooms other than on the ground floor of buildings that it generally conforms to the local plan that imposes no special or location restrictions on the establishment of refreshment rooms in buildings situated in business zones which generally contain more than one floor.’ I respectfully disagree. I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan. In my opinion that aspect of the decision in Guideline Drafting should be regarded as wrongly decided. Bignold J referred to the decision of Samuels J in Willoughby Municipal Council v Manchil Pty Ltd (1974) 29 LGRA 303 at 309 where Samuels J said: ‘It seems to me that the detailed plan or design contemplated by cl. 32(e) is intended to be one which is controlled by and illustrates the existing planning scheme. A plan which illustrated graphically a development which was contrary to the provisions of the scheme would not in my opinion fall

within the terms of cl.32(e).’ [Emphasis added] That passage does not support the decision reached by Bignold J. A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision.” Thus, in relation to the issue of the scope and power of a DCP, the NSW Court of Appeal in Ligon No 2 held that Guideline Drafting was wrongly decided. In relation to the meaning of providing “more detailed provisions”, the NSW Court of Appeal in Ligon No 2 found: • more detailed provisions may regulate the circumstances in which a development is permissible with consent • more detailed provisions may include a prohibition unless certain criteria are satisfied or a development standard which permits development only if certain criteria are satisfied, and • it may be more restrictive or prohibitive, but it cannot be wider. The NSW Court of Appeal also disagreed with Bignold J in relation to the issue of whether the DCP generally conformed with the LEP, but with the 2005 Amendments this element of the requirement for a valid DCP no longer exists.

¶19-080 Castle Constructions Pty Ltd v North Sydney Council — validity of a Development Control Plan The issue of the validity of a DCP was further considered by Biscoe J in the NSWLEC in Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 (Castle Constructions). These proceedings arose out of a DA for a 31-storey commercial/residential building at Walker Street in North Sydney. The DA was the subject of a merit appeal to the NSWLEC and subsequently a decision of the NSW Court of Appeal on the

interrelationship of various provisions in the North Sydney LEP 2001. The NSW Court of Appeal held that cl 28D of the LEP prevailed over inconsistent provisions in cl 30 as it provided an exhaustive statement on height and massing in the North Sydney Centre. This case was considered earlier in Chapter ¶8 in relation to the issue of inconsistency between EPIs. Meanwhile, the Council, in September 2006, amended the North Sydney DCP 2002 to provide new maximum building heights and setbacks. The developer then challenged the validity of the amended DCP. The Council’s power to make the amended DCP was challenged. Section 74C(1)(a) of the EPA Act provides as follows: “(1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable: (a) to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned.” Two of the grounds for the challenge to the validity of the DCP were that: (1) the building height, massing and amalgamation controls in the amended DCP do not achieve the purpose of the LEP, and (2) the height controls in the amended DCP do not achieve the purpose of the LEP if they are based in part on the operation of cl 30 which the NSW Court of Appeal held is inapplicable in the North Sydney Centre. On the broader challenge based on failure to achieve the purpose of the LEP, Biscoe J identified the construction of s 74C(1)(a) in paragraphs [48]–[50] as follows: “48 Questions of construction arise in relation to whether the test posited by s 74C(1)(a) is objective or subjective and the meaning of the words ‘purpose’ and ‘to achieve’.

49 The applicant submitted, first, that under s 74C(1)(a), the 2006 Amending DCP must be construed objectively, in the sense that it must achieve the purpose of the LEP to be valid; and, secondly, that the 2006 Amending DCP did not achieve the purpose of the LEP because a number of its provisions are contrary to, and defeat the purposes of, the LEP as stated in cll 28B and 28D. 50 Section 74C(1)(a) contains two chained limbs, both anchored to the chapeau. The first limb is ‘to make more detailed provision with respect to development’ (the details limb). The second limb is to ‘to achieve the purpose of an environmental planning instrument applying to the land concerned’ (the purpose limb). Both limbs are anchored to whether council ‘considers it necessary or desirable’ to do that which they specify. The legislature has given to the relevant planning authority, not the Court, the task of forming a view as to whether it is necessary or desirable to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument. That is a subjective question. The existence of that mental state is an essential condition to the exercise of power to make a development control plan: Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134 at [28]; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 at [124]. The power is also limited by the two limbs.” In relation to the “details limb” of s 74C(1)(a), Biscoe J referred to the test in Ligon No 2 in the NSW Court of Appeal (discussed previously) where it was held that a DCP in providing more detailed planning considerations may lawfully include provisions which are restrictive or prohibitive unless certain conditions are met. Biscoe J held at paragraphs [52]–[53] as follows: “52 The Ligon test has been approved and applied as the appropriate test: 7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125 at [25] and the cases there cited. The 7-Eleven case was concerned with a challenge to a provision of a development control plan under the former s 72 of the EPA Act. Convenience stores were a permissible use in the relevant area

under the Central Sydney Local Environmental Plan 1996. The council adopted a development control plan, cl 4.2 of which restricted permissibility by prohibiting the location of a convenience store within 75 metres of another convenience store. Applying Ligon, Lloyd J held that cl 4.2 was valid. 53 The applicant does not suggest that the details limb of s 74C(1)(a) is not satisfied in the case of the 2006 Amending DCP. That limb, in my view, is satisfied, on the authority of Ligon and 7Eleven.” Biscoe J then turned to the second limb of s 74C(1)(a) involving purpose. The applicant submitted that the objective of a particular division or clause of the LEP or a control in an LEP is to be equated with the purpose of the LEP. Biscoe J took a broader view of purpose in paragraph [58] as follows: “58 In approaching the interpretation of s 74C(1)(a), there should be taken into account that it is couched in terms of some generality. It is concerned with a precondition to the power of a planning authority to prepare a development control plan. It directs attention to the purpose of an applicable environmental planning instrument, not to the purpose of a particular provision or provisions of an applicable environmental planning instrument. It stands in contrast to s 74C(1)(a) which is concerned with inconsistency between particular provisions.” He then held at paragraphs [70]–[71] as follows: “70 In my opinion, the purposes of the LEP are to be found in its general and specific aims stated in cll 2 and 3 of the LEP. They are the only clauses of the LEP that identify the aims, objects or purposes of the LEP per se. Section 74C(1)(a) of the EPA Act is expressly concerned with the purpose of an applicable ‘environmental planning instrument’, not with a more limited purpose or object of a particular provision or division of an environmental planning instrument, such as those in cll 28B or 28D(1) of the LEP. Nor is it expressed to be concerned with specific controls such as those in cl 28D(2) of the LEP. Such matters fall to be considered under s 74C(5)(b), if there is

inconsistency. 71 This conclusion is fatal to the applicant’s invalidity case based on absence of power under s 74C(1)(a), except for the cl 30 or irrelevant consideration point. …” However, Biscoe J considered that the strongest of the applicant’s rejected submissions related to the objective of the entire Division of the LEP dealing with the North Sydney Centre. He then considered this on the basis that his conclusion in relation to purpose was wrong. Clause 28B(J) of the LEP provided: “28B The specific objectives of this Division are as follows: … (f) to allow for 250,000 square metres (maximum) nonresidential gross floor area in addition to the estimated existing (as at the commencement of this Division) 700,000 square metres non-residential gross floor area.” In relation to this submission, Biscoe J held at paragraphs [75]–[80] as follows: “75 …The applicant submitted that the controls in the 2006 Amending DCP, primarily the height controls, will prevent achievement of the additional 250,000 square metres maximum non-residential gross floor space objective in cl 28B(f) of the LEP, and that s 74C(1)(a) of the EPA Act was therefore breached because a purpose of the LEP was not achieved. 76 The applicant sought to demonstrate that it will not achieve that target by propounding in a lengthy, detailed and technical critique that there were errors in a study in a report before council by SJB Architects. … 77 …By this process, the applicant arrived at the conclusion that the grand total which may be achieved is 150,102 square metres. Consequently, the applicant submitted, the controls in the 2006 Amending DCP do not achieve the object in cl 28B(f) of 250,000 square metres maximum of additional non-residential floor space.

78 I do not accept the applicant’s underlying submission for the following reasons. First, I do not accept the premise that cl 28B(f) mandates that the 2006 Amending DCP must provide for 250,000 square metres of such additional floorspace. That figure is expressed in cl 28B(f) as a maximum. It is not expressed as a mandatory outcome. The provision may be contrasted, for example, with cl 28B(c) which states that an objective is ‘to ensure’ that railway infrastructure will encourage and enable specified outcomes. In my opinion, if the 2006 Amending DCP will achieve less than the prescribed maximum, it does not fail to achieve the objective in cl 28B(f). 79 Second and alternatively, the applicant’s lengthy critique goes to the merits of the SJB study and is highly argumentative. If relevant to these proceedings, which are not merits review proceedings, it is of a nature where it would ordinarily be expected that expert evidence, including from the proponent of the study, would be necessary in order for a court to reach a safe conclusion as to its reliability. Assuming that it is relevant to these proceedings, I am not satisfied that it represents more than a difference of opinion. 80 Third, on the alternative assumption that the applicant’s corrections are relevant and should be accepted, I am not satisfied that they factually establish that the additional 250,000 square metres is not achievable. The study stated that the ‘12 sites used for such analysis do not represent all the potential available under in the Centre the controls [sic. Should be “available in the Centre under the controls”], but illustrate the primary area of benefit under the planning review’. Neither the study nor the applicant’s analysis touched upon the remaining potential. Consequently, in my view, it has not been proved that the maximum 250,000 square metres of additional non-residential floor area is not achievable when all available potential is taken into consideration.” On the narrower challenge, the applicant submitted that the height controls in the amended DCP cannot achieve the purpose of the LEP if they are based in part of the operation of cl 30 of the LEP which the

NSW Court of Appeal held is inapplicable in the North Sydney Centre. Biscoe J held at paragraphs [82]–[84] and [86]: “82 The platform for these three submissions is the decision of the Court of Appeal in the related merits appeal proceedings that cl 30, the building height plane provision, of the LEP does not apply in the North Sydney Centre: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164. The height limits in part of the mixed use zone in the 2006 Amending DCP were purportedly determined by applying the existing LEP controls, including the building height plane in cl 30. This is clear from the reports and recommendation to council in the planning review leading to the 2006 Amending DCP. … 83 Council fixed the building heights in part of the mixed use zone by applying, inter alia, cl 30 of the LEP. That was a mistake because, as the Court of Appeal has held, cl 30 is inapplicable in the North Sydney Centre. In my opinion the mistake meant that council, to that extent, did not pursue the purpose of the LEP when making the DCP. In Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 at 263–264 Isaacs J (Knox CJ and Rich J agreeing) distinguished absence of good faith from the mistaken pursuit of a wrong purpose in the context of making delegated legislation: ‘It is wholly distinct from the notion of mistakenly pursuing a by-purpose. Such a pursuit may in this connection be honest or dishonest. The body pursuing it may genuinely avow it, thinking it permissible. There the action adopted may be ultra vires, but not mala fide.’ 84 Another way of looking at it is that the operation of the height controls in the 2006 Amending DCP do not respond to the purpose prescribed by s 74C(1)(a) and therefore are not sustained by the power in that provision: cf Williams v Melbourne Corporation (1933) 49 CLR 142 at 156 per Dixon J. … 86 Accordingly, in my opinion, the first of the applicant’s

submissions should be accepted in relation to building heights; that is, the height controls in section 1.1.fa and the Building Height Map in the 2006 Amending DCP are invalid, subject to one further consideration. Clause 30 of the LEP only applies to part of the mixed use zone. Council presumably did not base building height controls outside that part of the mixed use zone on, inter alia, cl 30. Therefore, should the height controls applicable to buildings outside that part of the mixed use zone survive this attack? In my opinion, no because the Building Height Plan is not severable. It is, as its name suggests, one plan for the entire North Sydney Centre and I do not consider that a large part of it can be invalidated without invalidating all of it.” Conclusions The following conclusions may be derived from the Castle Constructions case: • Where s 74C(1)(a) of the EPA Act provides that a DCP is to make more detailed provisions to achieve the purpose of an LEP, the reference to “purpose of an EPI” is: – a subjective test for the Council, not an objective test, and – a reference to the purposes of the LEP refers to its wider purposes as contained in the general objectives and the zone objectives, not to the purpose of a particular provision or provisions. • Where an LEP expresses an objective in terms of a quantitative outcome (eg an additional amount of floor space), the fact that the application of the controls in a DCP will prevent the attainment of that outcome does not mean that the DCP does not achieve the purposes of the LEP. This is because the outcome is usually expressed as a maximum, not a mandatory outcome. • Where a DCP is based upon the operation of a provision in an LEP which is not applicable, such a mistake means that the Council did not pursue a purpose of the LEP when making the DCP. As a consequence, those provisions of the DCP are invalid,

and if incapable of being severed from the remainder of the DCP, they render the entire DCP invalid.

¶19-090 Principles regarding the making, scope and power of a Development Control Plan The key principles derived from the discussion on the making, scope and power of a DCP are as follows: Principle 1: A DCP is not a form of delegated legislation and does not have the legal power to permit development with or without consent nor prohibit development. It lacks the statutory force of an EPI. Rather, it is a head of consideration or evaluation criteria required to be considered by a consent authority under s 79C in making a decision whether or not to grant a development consent. Principle 2: A DCP is prepared by the RPA, a term which is defined differently for its use in relation to DCPs in s 74B than for its use in relation to LEPs in s 54. The Director-General is the RPA for a SEPP and the local council is the RPA for an LEP. There is no capacity for the Minister to change the RPA for a DCP as there exists in relation to LEPs, but the Minister has sweeping powers to direct a council in relation to DCPs and to step in and override a council under s 74F discussed below. Principle 3: A DCP may be prepared by the RPA “to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned” (s 74C(1)(a) of the EPA Act). As a reference to an EPI includes a proposed EPI (s 74B(c)), a DCP may be prepared to also achieve the purpose of a proposed EPI. A DCP is prepared by or on behalf of the RPA and hence it is not the product or creation of a third party or developer, and hence the decision in Burns Philp is likely to be also applicable to DCPs, subject to the exception in s 74D(5). There are three elements of a DCP: (1) it is to make more detailed provision than an EPI

(2) it relates to development, and (3) it is designed to achieve the purposes of an EPI. Principle 4: In making more detailed provisions, a DCP may regulate the circumstances when a development is permissible with consent or it may include a prohibition for a development unless certain criteria are satisfied or it may include a development standard which permits development only if certain criteria are satisfied. While a DCP may contain provisions more restrictive or prohibitive than an EPI, it cannot contain provisions which are wider than an EPI (Ligon No 2). Principle 5: In making provisions to achieve the purpose of an LEP, the reference to “purpose of an EPI” is: • a subjective test for the council, not an objective test, and • a reference to the wider purposes of the LEP is contained in the general objectives and the zone objectives, not to the purpose of a particular provision or provisions. Where an LEP expresses an objective in terms of quantitative outcome (eg an additional amount of floor space), the fact that the application of the controls in a DCP will prevent the attainment of that outcome does not mean that the DCP does not achieve the purposes of the LEP. This is because the outcome is usually expressed as a maximum, not a mandatory outcome. Where a DCP is based upon the operation of a provision in an LEP which is not applicable, such a mistake, it means that the council did not pursue a purpose of the LEP when making the DCP. As a consequence, those provisions of the DCP are invalid, and if incapable of being severed from the remainder of the DCP, they render the entire DCP invalid (Castle Constructions). Principle 6: A DCP also has the following potential functions: • to identify development as advertised development, and • to provide for, or exclude public or particular advertising or notification of other development, reviews of determinations and

applications for modification under s 96 (s 96C(1)(b) and (c) of the EPA Act). Principle 7: Only one DCP can apply to the same land (s 74C(2) of the EPA Act) subject to savings and transitional provisions allowing multiple DCPs existing before the 2005 Amendments to continue (cl 94 of Sch 6 of the EPA Act). Principle 8: A provision of a DCP has no effect if it is the same as a provision in an applicable EPI or inconsistent with an applicable EPI (s 74C(5) of the EPA Act). Principle 9: An EPI may require a DCP before development may be carried out. However, in these circumstances, a DCP may be prepared and submitted to the RPA by the owners of the land. If the RPA refuses to make a DCP so submitted to it (or delays making a decision for more than 60 days), the owners may lodge a DA despite the requirement in the EPI relating to the preparation of a DCP. The Minister may step into the shoes of the RPA and make the DCP in those circumstances, but only if the EPI authorises the Minister to so do (s 74D(5) of the EPA Act). Principle 10: The Minister is empowered, subject to the regulations, to direct a council to make, amend or revoke a DCP in the time and manner specified, and a council must comply with any such direction (s 74F). If the council fails to comply, the Minister may step in and make the DCP (s 74F). This power enables the Minister to override a council in relation to DCPs, without reference to any circumstance, or in relation to any matter.

PART E INTERPRETING A LOCAL ENVIRONMENTAL PLAN — FORMAT AND ZONING ¶20-010 Identifying applicable Environmental Planning Instruments Scope of power of an Environmental Planning Instrument (EPI) and the process of making a Local Environmental Plan (LEP) and Development Control Plan (DCP) have been examined in Parts B and C of this book. State Environmental Planning Policies (SEPPs) and the former Regional Environmental Plans (REPs) (abolished by amendments under the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) but with savings and transitional provisions giving ongoing life to some pre-existing REPs) are covered in Parts D and E of this book. Before considering how an LEP should be interpreted, there is a threshold question of ascertaining precisely what are the applicable EPIs and DCPs for a particular site or property. There may be, and indeed usually are, multiple EPIs applying to a particular site or property. The Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW), in introducing the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument) for LEPs, required a single DCP only to apply to a particular site or property. This has assisted in reducing the number of planning control documents applying to a site. Perhaps of even greater assistance has been the process of publication of EPIs on the NSW Legislation website and the tasking of the Parliamentary Council to certify up-to-date consolidated versions of EPIs as correct under s 45C of the Interpretation Act 1987 (NSW). The result of this is an authoritative up-to-date consolidated version of an EPI being available, rather than the prior practice of multiple

amendments appearing in the NSW Government Gazette, and many local councils (but not all) producing unofficial consolidated copies of their LEPs. Even with these improvements, there remain multiple EPIs applying to a particular site or property. To properly understand the planning controls for any site or property requires an examination and construction of all the applicable EPIs for that site or property. Before such a task can be commenced, all applicable EPIs need to be identified with precision and certainty. The task of identifying the applicable EPIs for a site or property is a foundational step in interpreting the relevant planning controls for a site or property. Given its foundational importance, the task of identification needs to be authoritative and certain, rather than reliant upon the skills and knowledge of any person.

¶20-020 Section 149 certificates The Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides a mechanism to authoritatively identify the EPIs which apply to a particular site or property by a person obtaining a certificate under s 149 of the EPA Act from the local council. It is noted that the only exemption from liability to a council for information contained in a s 149 certificate relates to the optional information provided under s 149(5) but does not apply to the compulsory information under s 149(4) nor does it apply to advice on contamination (s 149(6)). The prescribed matters to be contained within a s 149(2) certificate are outlined in cl 279 and Sch 4 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). It is noted that the s 149 certificate is required to identify and name all EPIs, DCPs, draft EPIs and draft DCPs applying to the land in question. In addition, the s 149 certificate is required to identify the zoning of the land, types of development which are permissible (without and with consent) and types of development which are prohibited, any development standard for the erection of a dwelling,

whether the land comprises critical habitat and whether that land is within a conservation area or contains an item of environmental heritage. It should also be noted that a s 149 certificate is not a substitute for examining the relevant EPIs applying to the land. Rather, it is a key to understanding which EPIs apply to particular land. Hence, an appreciation of the effect of planning controls on a particular site or property requires both a s 149 certificate and all of the applicable EPIs. Further, an understanding of all of the applicable EPIs requires a consideration of the totality of all the provisions in all applicable EPIs, and in particular, a consideration of their cumulative effects and inter-relationships. Often the preliminary conclusion drawn from a s 149 certificate alone may give an incorrect or misleading view of the relevant planning controls. This is because the s 149 certifications do not encompass the contents and effects of special provisions in an LEP, nor the provisions of a SEPP, or details of crucial development standards, as the only development standard required by cl 2 of Sch 4 of the EPA Regulation is the minimum lot size for the erection of a dwelling, not other important development standards, such as height, floor space ratio (FSR), site coverage, minimal landscaping areas, building envelopes and building set backs. Further, the special provisions of an LEP or a SEPP may further restrict or prohibit development otherwise permissible under the development control table in an LEP, usually reproduced in a s 149 certificate in satisfaction of the provisions of cl 2(b)–(d) of Sch 4 of the EPA Regulation, or indeed that special provision may make permissible development otherwise prohibited under the development control table in an LEP. The identification of the applicable EPI and the particular effects of those EPIs on a specific site or property as depicted on any maps, being information identified in a s 149 certificate, is the starting point in interpreting the planning controls affecting that site or property. As it is a foundational step, any error made at this stage infects all which follows in interpreting the applicable planning controls.

¶20-030 Format of a Local Environmental Plan

After the introduction of the Standard Instrument for LEPs, the structure and format of an LEP has been standardised. However, the standard structure and format is largely an incremental and evolutionary development of the structure and format of the County of Cumberland Planning Scheme Ordinance 1951 (NSW) (County Scheme), prescribed planning schemes and interim development orders under Pt 12A of the Local Government Act 1919 (LG Act 1919), and LEPs made under the EPA Act prior to the making of the Standard Instrument, which commenced on 31 March 20061 and was subject to major amendments in 20072 and 2011.3 An LEP consists of two components: (1) an LEP instrument being the written statutory provisions published on the NSW Legislation website, and (2) a set of maps, the originals of which are held by the NSW Department of Planning for the Minister. For new LEPs prepared using the Standard Instrument, maps are available on the NSW Legislation website. For other LEPs, access to the original maps is through the Department of Planning. Versions of these maps may be made available by local councils either in paper form or electrically. Usually, the effects of any of the maps (eg zoning of land or applicable height controls, FSR or heritage listings, etc) are described on a s 149 certificate for a particular site or property. Hence, the s 149 certificate is not only of importance in identifying the EPIs which are applicable to a particular site or property, but it indicates the effects of LEP maps on that property, information which is generally not readily accessible. Without knowing the effect of maps on a site or property, it is usually impossible to interpret the relevant planning controls for that site or property. Using the format template provided in the Standard Instrument, an LEP instrument has the following principal components: (1) Preliminary — the preliminary parts of an LEP instrument contain:

• its commencement date • the aims of the plan • the land to which the plan applies • definitions • the identity of the consent authority • details of maps • repeals of other LEPs, and • application of SEPPs. (2) Permitting or Prohibited Development — this part of an LEP provides for: • establishment of a system of zoning or segregation of particular land uses • identification of the objectives of each zone • a Land Use Table (In earlier LEPs, this is often titled the development control table. Its description as the Land Use Table in the Standard Instrument is a misnomer as the zoning system relates to categories of development as defined in s 4 of the EPA Act and not just uses of land which are but one of the components of the definition of development in s 4(1) of the EPA Act (see earlier discussion in Part B of this book).) • requirements for consent for subdivision, demolition and development on unzoned lands, and • additional permitting uses which refers to Sch 1 in which additional uses for specific land may be permitted over and above what is otherwise permissible under the zoning of that

land. These additional permitted uses are known as “Spot rezonings”. While the zoning nomenclature of lands included in Sch 1 is unchanged, the effect of the schedule is to expand the range of permissible uses for a specific property beyond those otherwise permissible on that property by virtue of the property’s zoning. (3) Exempt and Complying Development — This part identifies development which is exempt from the need for development consent, development which may be carried out with a Complying Development Certificate and environmentally sensitive land where exempt and complying development does not apply. (4) Principal Development Standards — This part contains the main development standards which control how development is undertaken and includes: • minimum subdivision lot sizes • rural subdivision • heights of buildings • FSR, and • exceptions to development standards. (5) Miscellaneous Provisions — This part contains a range of miscellaneous additional controls including: • tree and vegetation protection requirements • heritage conservation • infrastructure development and use of existing Crown buildings, and • relevant acquisition authorities for land zoned for a public purpose.

Part 4 (Principal Development Standards) and Part 5 (Miscellaneous Provisions) were included in a general Special Provisions section of earlier EPIs. Footnotes 1

NSW Government, 31 March 2006, NSW Government Gazette, No 42, p 1879.

2

NSW Government, 14 December 2007, Standard Instrument (Local Environmental Plans) Amendment Order 2007, NSW Government Gazette, No 182, p 9557.

3

NSW Government, 25 February 2011, Standard Instrument (Local Environmental Plans) Amendment Order 2011.

¶20-040 The zoning system The Standard Instrument provides for a standardised system of zoning and zoning nomenclature in cl 2.1 which provides for the following 35 zones (one of which is of limited application): • Zone RU1 Primary Production • Zone RU2 Rural Landscape • Zone RU3 Forestry • Zone RU4 Rural Small Holdings • Zone RU5 Village • Zone RU6 Transition • Zone R1 General Residential

• Zone R2 Low Density Residential • Zone R3 Medium Density Residential • Zone R4 High Density Residential • Zone R5 Large Lot Residential • Zone B1 Neighbourhood Centre • Zone B2 Local Centre • Zone B3 Commercial Core • Zone B4 Mixed Use • Zone B5 Business Development • Zone B6 Enterprise Corridor • Zone B7 Business Park • Zone B8 Metropolitan Corridor (available only in the Local Government Areas of the City of Sydney and North Sydney) • Zone IN1 General Industrial • Zone IN2 Light Industrial • Zone IN3 Heavy Industrial • Zone IN4 Working Waterfront • Zone SP1 Special Activities • Zone SP2 Infrastructure • Zone SP3 Tourist • Zone RE1 Public Recreation

• Zone RE2 Private Recreation • Zone E1 National Parks and Nature Reserves • Zone E2 Environmental Conservation • Zone E3 Environment Management • Zone E4 Environmental Living • Zone W1 Natural Waterways • Zone W2 Recreational Waterways, and • Zone W3 Working Waterways. In the Standard Instrument, the zoning system is given operational effect by cl 2.3 which provides as follows: “2.3 Zone objectives and Land Use Table [compulsory] (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a

reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan.” Under cl 2.3(1) of the Standard Instrument, the Land Use Table specifies for each zone development that may be carried out without consent, development that may be carried out only with consent and development which is prohibited. Clause 2.3(3)(a) of the Standard Instrument specifies that a reference to a type of building or other thing in the Land Use Table is a reference to the development for the purposes of that type of building or other thing. Hence, cl 2.3(3)(a) of the Standard Instrument means that, where the Land Use Table includes a type of a building or other thing, that reference actually means development for the purposes of that type of building or other thing. Hence, where the Land Use Table refers to a type, description or category of a building or other thing, it means development for the purposes of that type of building or other thing. In effect, the Land Use Table is identifying purposes of development. In the Standard Instrument for each zone there is a list of developments under three headings: • Permitted without consent • Permitted with consent, and • Prohibited. Following is an example of the provisions for Zone R1 General Residential in the Standard Instrument: “Zone R1 General Residential Direction

The following must be included as either ‘Permitted without consent’ for this zone: Roads 1. Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2. Permitted without consent Home occupations 3. Permitted with consent Attached dwellings; Boarding houses; Child care centres; Community facilities; Dwelling houses; Group homes; Hostels; Multi dwelling housing; Neighbourhood shops; Places of public worship; Residential flat buildings; Semidetached dwellings; Seniors housing; Shop top housing. 4. Prohibited” When the Standard Instrument is applied in an actual LEP, an example of provisions for the R1 General Residential in the Canada Bay LEP 2008 is as follows: “Zone R1 General Residential 1. Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. Permitted without consent Home-based child care; Home occupations. 3. Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Boat repair facilities; Boat sheds; Building identification signs; Business identification signs; Business premises (other than restricted premises and timber and building supplies); Car parks; Child care centres; Community facilities; Demolition; Drainage; Dual occupancies; Dwelling houses; Earthworks; Educational establishments; Entertainment facilities; Exhibition homes; Exhibition villages; Group homes; Home businesses; Home industries; Hospitals; Hostels; Hotel or motel accommodation; Information and education facilities; Jetties; Light industries; Marinas; Multi dwelling housing; Neighbourhood shops; Office premises; Places of public worship; Public administration buildings; Public utility undertakings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Residential care facilities; Residential flat buildings; Retain premises; Roads; Schools; Semi-detached dwellings; Seniors housing; Service stations; Serviced apartments; shop top housing; Swimming pools; Telecommunications facilities; Vehicle repair stations; Water recycling facilities. 4. Prohibited Any development not specified in item 2 or 3.” As can be seen from the example in the Canada Bay LEP, the Land Use Table operates on the basis that two of the three headings of Permitted Without Consent, Permitted with Consent and Prohibited will contain nominated development types (read “purposes”) while the third contains a residual class of any development not specified in the other two. Where development is specified or nominated it is often referred to as

a “nominate” purpose of development. Where development is included in the residual class, it is often referred to as an “innominate” purpose of development. There is no general rule that the residual class is prohibited development, as in the example of the Zone R1 General Residential in the Canada Bay LEP 2008. The residual class may be in any of the three headings, although usually never under the Permitted Without Consent heading and by virtue of the structure of the Standard Instrument unlikely in the future under the heading of Permitted with Consent, although prior to the Standard Instrument this was quite common. It is noted that, prior to the Standard Instrument, the Land Use Tables prefaced the list of development types under headings “Without Consent”, “Only with Consent” and “Prohibited” with prefatory words “Development for the purpose of” and then listed the development types.4 Such prefatory words avoided the need for the tortuous and inelegantly drafted cl 2.3(3) in the Standard Instrument. Clause 2.3(3)(b) of the Standard Instrument provides that: “a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.” The implications of this provision will be considered later. The Standard Instrument approach to zoning and the Land Use Table is derived from historical experience going back to the County Scheme. The Table in the County Scheme was based on five columns. Clause 26 and a sample of the Table relating to the Living Area zone (the precursor of Residential zones) provided as follows: “Erection or use of buildings 26. The purposes — (1) for which buildings may be erected or used without the consent of the responsible authority;

(2) for which buildings may be erected or used only with the consent of the responsible authority; and (3) for which buildings may not be erected or used; in each of the zones specified in Part I or Part II of the Table to this clause are respectively shown in the third, fourth and fifth columns of the Table set out opposite thereto, but no building operations shall be undertaken on land within the zone specified in Part II of the Table unless a notice applying to the land has been given under paragraph (a) of section 342R of the Act and such notice is still operative or permission to erect a building has been granted under paragraph (e) of the said section. TABLE Part I

” The format of the control of development and the Table with five columns were applied in most prescribed planning scheme ordinances made under Pt 12A of the LG Act 1919. Footnotes 4

See for example, the Nundle LEP 2000.

¶20-050 Variability in the Land Use Tables Within LEPs made under the EPA Act, the formula for the

establishment of the zoning system and the development control table (or Land Use Table) demonstrated some variability. An example of the commonly-used formula is in cl 9 of the Blacktown Local Environmental Plan 1988 with the Table extract for Zone 1(a) (General Rural Zone) as follows: “9. Zone objectives and development control table (1) The objectives of a zone are set out in the Table to this clause under the heading ‘Objectives of zone’ appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which: (a) development may be carried out without development consent, (b) development may be carried out only with development consent, and (c) development is prohibited, are specified under the headings ‘Development that does not require consent’, ‘Development which requires consent’ and ‘Prohibited’, respectively, appearing in the matter relating to the zone. (2A) Exempt development may be carried out without development consent in any zone. (3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

Table Zone No 1 (a) (General Rural Zone) 1 Objectives of zone The objectives are: (a) to ensure that actual or potential agriculturally productive land is not withdrawn unnecessarily from production, (b) to ensure that development in rural areas is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services, (c) to provide for urban support functions, and (d) to ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands. 2 Development that does not require consent Nil. 3 Development which requires consent Any purpose other than a purpose included in Item 2 or 4 of the matter relating to this zone. 4 Prohibited Amusement centres; animal boarding establishments where dogs are kept; auction rooms; brothels; boarding houses; bulk stores; bulky goods retail establishments; caravan parks; child care centres; commercial premises; detached dual occupancies; exhibition homes; exhibition villages; hardware stores; hazardous industries; hazardous storage establishments; highway service centres; industries (other

than rural industries or extractive industries); integrated housing; junk yards; manufactured home estates; medium density housing; methadone dispensaries; mineral sand mines; mines; mixed businesses; mortuaries; motels; motor showrooms; offensive industries; offensive storage establishments; plant and equipment hire establishments; professional offices; refreshment rooms; residential flat buildings; service centres; service stations; shops; storage yards; transport terminals; warehouses.” This formulation was the most widely used and has the advantage of greater clarity and simplicity of expression than the equivalent provisions in the Standard Instrument. Another variant was to use a chart with ticks for development permissible, similar to the following example in cl 11 of the Bankstown LEP 2001 (with the Table shortened to only include developments up to the letter B): “11 Development which is allowed or prohibited within a zone (1) Unless otherwise provided by this plan (such as by the exempt development provisions in clause 9), the Table to this clause specifies for each zone the development that may be carried out only with consent, where ‘✓’ is shown corresponding to that development. (2) Subject to other provisions of this plan (and clause 12 in particular), development referred to in the Table to this clause is prohibited in a zone if ‘✓’ is not shown corresponding to that development. (3) The consent authority may grant consent to development only if it has had regard to: (a) the general objectives of this plan, and (b) the objectives of the zone in which it is proposed to be carried out, and

(c) the other provisions of this plan. (4) Development may be carried out on land within Zone 7 only with development consent and only if the development is in accordance with a plan of management for the land adopted by the Council. (5) Any development authorised by or under the National Parks and Wildlife Act 1974 may be carried out on land within Zone 8 without development consent. Table

” Most LEPs provided for a development control table containing

absolute prohibitions. Some LEPs contained zones with few prohibitions, such as the City Centre and City Edge Zones in the Sydney LEP 2005 but these are rare. The Bankstown LEP 2001, excerpted above, contains prohibitions in the Table, but provides a discretion to grant consent to otherwise prohibited development in cl 12 as follows: “12 Additional discretion to grant consent (1) Despite clause 11, but otherwise subject to this plan, the consent authority may grant consent to development that: (a) is not included in the Table to clause 11, or (b) would be prohibited by the Table to clause 11 in the absence of this clause. (2) The consent authority may grant consent pursuant to this clause only where it is satisfied that the proposed development: (a) is of a nature (whether by reason of its design, scale, manner of operation or otherwise) that would, in the absence of this clause, justify an amendment to this plan in order to permit the particular development, and (b) is not inconsistent with the objectives of the zone in which the development site is situated, and (c) is not inconsistent with the provisions of any other environmental planning instrument, and (d) will not have an adverse effect on other land in the vicinity. (3) Development under this clause is advertised development within the meaning of the Act.” This provides an avenue for flexibility in relation to prohibitions and hence, a means to avoid spot rezonings (and provides a recourse to

merit appeal by a dissatisfied applicant) without significantly diminishing the certainty of a zoning scheme which enables prohibitions. This variant has been utilised in a limited number of other LEPs. Another variant which addresses the inflexibility of zonings and prohibitions is that contained in the Warringah LEP 2000. This LEP identifies not zones but localities, each of which has a Locality Statement. Development within each locality is divided into three categories plus an additional category of prohibited development. Category One developments require the consent authority to consider the desired future character described in the Locality Statement. Category Two and Category Three developments require that the consent authority is satisfied that the development is consistent with the desired future character described in the Locality Statement, while Category Three developments also require an independent public hearing and assessment by a panel. Each Locality Statement also contains prohibitions on development. The Warringah LEP model has not been adopted elsewhere and appears complex and cumbersome without providing any flexibility in relation to prohibitions. Each of these variations in relation to the zoning system and the Land Use Table has been superseded by the compulsory format in the Standard Instrument. In Chapter ¶3 which discussed the scope and power of an EPI, it was noted that, while the combination of s 24 and s 26 of the EPA Act provided the maximum potential scope and power of an EPI, the extent to which that maximum scope and power is actually utilised is a matter of discretion (within those outer boundaries) for the authors of individual EPIs. Hence, a fundamental question in examining an individual EPI is the extent to which it has actually utilised the maximum scope and power of control that is potentially available under s 24 and s 26. Providing the answer to that question requires a two-stage approach: (1) The first stage is to consider the provisions of the LEP which establishes the zoning system and the Land Use Table. In the Standard Instrument this is found in cl 2.3. This clause and the

Land Use Table only control “development” as defined in s 4(1) of the EPA Act. Thus, the initial conclusion is that an LEP based on the Standard Instrument only controls development and not the extended range of matters authorised by s 26. In addition, cl 2.6 controls subdivision and cl 2.6AA controls demolition, both elements of the definition of development. (2) The second stage is to consider to what extent the scope and power of an LEP, as set out in the clause establishing the Land Use Table, is altered and extended by the remaining provisions of the LEP. In the case of an LEP based on the Standard Instrument, extensions to the scope and power of the LEP beyond development are found in cl 5.9 extending the control to trees and other vegetation; in cl 5.10 in relation to heritage conservation; and in the definition of “advertisement” in the Dictionary authorised by cl 1.4, but no specific controls are included relating to advertising in the Standard Instrument. Each LEP requires an examination similar to that outlined above to identify the extent to which the particular LEP has sought to avail itself of the potential available scope and power of an EPI under s 24 and s 26 of the EPA Act.

CHARACTERISATION OF DEVELOPMENT ¶21-010 Forrester v Marrickville Municipal Council — the meaning of “purpose” of development Recognising that the Land Use Table in a Local Environmental Plan (LEP) is based upon purposes of development, it is necessary to understand the meaning of a “purpose” of development. In Forrester v Marrickville Municipal Council (1954) 19 LGR 232 (Forrester v Marrickville), Sugerman J in the Land and Valuation Court of NSW considered an appeal in relation to the Council’s refusal of a development application (DA) under the County of Cumberland Planning Scheme (County Scheme) for alterations and additions to a

building at Tempe used for the wrecking of motor vehicles and the salvage of parts therefrom. Sir Bernard Sugerman discussed the meaning of “purpose” in the then s 309(2) of the Local Government Act 1919 (NSW) (LG Act 1919), a provision protecting existing uses. Sir Bernard said at p 236 (footnotes excluded): “Mr Every-Burns has also submitted that the word ‘purpose’ in sub-s. (2) is used in a generic sense. There are, undoubtedly, difficulties in the definition of classes of building by reference to purposes, difficulties which were pointed out, as Mr Every-Burns has reminded me, in the case of S. Wallace Pty Ltd v Sydney C.C.. And, no doubt, the matter is to be viewed as one of substance and Mr Every-Burns may be right when he pointed out that such fluctuations in the method of use as result from differences in the way in which some particular trade or industry is from time to time carried on, or as result from new improvements, do not effect a change of purpose and, indeed, the matter may go somewhat beyond that while still retaining substantially what is the same purpose of use.” Conclusion The following conclusion can be derived from the decision in Forrester v Marrickville: • Fluctuations in working methods, changes in the way a business is carried out, and the application of new improvements in a business probably do not change a purpose of use.

¶21-020 Baker v Cumberland County Council The issue was further considered in Baker v Cumberland County Council (1956) LGR 321 (Baker) by Sugerman J in the Land and Valuation Court of NSW. The case was a claim for compensation for injurious affection under Pt 12A of the LG Act 1919 for land zoned as Green Belt under the County Scheme. In discussing the operation of the zoning provisions in the County Scheme applying to land zoned Green Belt, Sir Bernard Sugerman said at p 333–334: “The relevant provision, or fascisculus of provisions, also makes

provision by way of regulating the purposes for which buildings may be erected in [p 334] ‘Green Belt Area’ Zones. Buildings may be erected for specified purposes with the consent of the responsible authority and shall be erected for no other purpose. The enumeration of ‘purposes’, which is common to both the erection of buildings and the use of buildings, has certain peculiarities. The statement of a purpose is sometimes a statement of a kind of building and sometimes a statement of a kind of activity. Reading the enumeration of ‘purposes’ in conjunction with the relevant definitions in cll. 3 and 24, the kind of building may be found to be described by reference to the uses for which it is required, or designed, or in fact used, and the statements both of kinds of buildings and of kinds of activities may be found to be accompanied by what are in substance, if not in form, conditions.” Conclusion Sir Bernard Sugerman considered “purpose” to refer to two elements: (1) a kind of building, which can be discerned from the uses for which the building is required, designed or in fact used, and (2) a kind of activity, which is a use which occurs within a building.

¶21-030 Shire of Perth v O’Keefe In Shire of Perth v O‘Keefe [1964] HCA 37 at paragraph [7]; (1964) 110 CLR 529 at p 534; (1964) 10 LGRA 147 at p 150 (Shire of Perth v O’Keefe), Kitto J in the High Court (with whom Owen J and Menzies J agreed) said: “Each purpose in the prohibitory by-laws is indicated by means of a description of a character which a purpose imparts to premises in which it is pursued; and while for the most part the purposes that are thus pointed to are such that they may be pursued in a wide variety of ways (in the case of a church, for example), in

some instances they connote a narrow range of choice (for example, in the case of a blacksmith’s shop or a woodyard). All that may usefully be noted is that in each case the description employed, be it of wide of [sic. Should read “or”] narrow connotation, has an evident relevance to town-planning considerations.” Kitto J pointed out that the use of a building imparts a character to that building; and it is the character of a building which is relevant to planning considerations. By utilising the words “development for the purposes of …” an LEP is highlighting that what is of planning relevance is: • the building or work (or other element of the definition of development) itself • the use or kind of activities which are to occur within the building or work and which impart a character to that building or work which would be different if the same building or work were to be used for a different activity, and • a use or activity itself, whether occurring within a building or work or not. The policy rationale for planning to focus on development for a particular purpose is based on the fact that a major concern of planning is the impacts (both beneficial and negative) of development including buildings. A building itself produces certain impacts in terms of height, bulk, scale, shadow, etc, separate and independent of how it is used. Likewise a use or activity produces certain impacts in terms of noise, traffic, hours of operation, etc, separate and independent of any building. Similarly a use or activity imparts a character to a building within which it occurs by requiring certain features confined to such a use (such as an exhaust chimney for a factory emitting smoke) or producing certain impacts which occur or are more pronounced (such as the use of a first floor balcony as an adjunct to a private bedroom or a public restaurant in terms of noise or privacy). To enable a comprehensive assessment of the impacts of development, it is

necessary to consider the development itself, the activities proposed to be conducted thereon, and any uses or activities which are proposed independent of a building or work. Thus, purpose encompasses the physical attributes of the development plus the end or object the development is to serve. However, not all elements of the definition of development are for a purpose. This is the case for demolition and subdivision when not accompanied by some other element of the definition. Preston CJ held in Wehbe v Pittwater Council [2007] NSWLEC 827 at paragraphs [26]–[28] as follows: “26 … Neither demolition of buildings or works nor subdivison of land involves the use of land. 27 As to the former, demolition may be preparatory to some other type of development, such as the erection of a building or the use of land, but it is not part of that other development: see Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 360; Auburn Municipal Council v F N Eckold Pty Ltd [1974] 2 NSWLR 148 at 153–154 affirmed (1975) 34 LGERA 114 and Customs and Excise Commissioner v Viva Gas Appliances Ltd [1983] 1 WLR 1445 at 1451; [1984] 1 All ER 112 at 116. 28 As to the latter, subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250, Sugerman J noted: ‘Approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular

sort of building being erected upon or some particular use being made of, the land.’” The decision is also referred to in ¶21-100 in the context of characterisation.

¶21-040 Rationale for characterisation The Land Use Table in an LEP classifies development in specific zones for identified purposes as either permissible without consent, permissible with consent or prohibited. In considering how an LEP affects a particular development, a fundamental step is to assign the particular proposed development in a zone to one of the purposes of development referred to in the Land Use Table to that zone to ascertain whether it is permissible without consent, permissible with consent or prohibited. The process of assigning a particular development proposal to one of the purposes of development referred to in a particular Environmental Planning Instrument (EPI) is referred to as characterisation. It is a fundamental and crucial step in the process of applying an EPI to a particular development proposal. It is fundamental and crucial because the result of the characterisation of a particular development proposal determines whether the proposal does not need consent at all under the EPI, whether it needs consent under the EPI or is prohibited under the EPI. An applicant would seek to ensure its proposal is permissible and not prohibited, while an objector would often seek to ensure a proposal to which they object is prohibited and hence, cannot proceed at all, rather than being permissible and capable of being granted consent. Thus, the characterisation process is of utmost importance. The importance of characterisation is a product of a zoning system which can absolutely prohibit development because such a zoning system with some developments being permissible and others being prohibited is a frequent source of dispute as to which side of the boundary between permissible and prohibited a particular proposal falls. In planning systems where there are no prohibitions and any proposal may be subject to a merit assessment, the issue of characterisation of development has little legal significance. In LEPs in New South Wales

where there are few prohibitions, the characterisation of a proposal has likewise little legal significance. For example, the equivalent of the Land Use Table for land in the Central Business District of Sydney zoned City Centre under cl 37 of the Sydney LEP 2005 provides that all development (subject to minor exceptions) is permissible with consent and no development is prohibited. Hence, there are no boundaries between permissible and prohibited. In these circumstances it does not matter for the purposes of permissibility under the Land Use Table how development is characterised, as nothing depends upon such characterisation in terms of permissibility. While ever the planning system creates boundaries between permissible and prohibited development, characterisation of development will be a fundamental and crucial element. As would be expected with such a fundamental and crucial element, a significant body of law has developed on the process of characterisation of development. This is due to applicants seeking to ensure their applications are within the boundaries of what is permissible, while objectors seek to ensure applications are outside the boundaries of what is permissible, and hence prohibited.

¶21-050 Bonus Pty Ltd v Leichhardt Municipal Council — consideration of the law on characterisation The starting point for considering the law on characterisation is the decision of Sugerman J in the Land and Valuation Court of NSW in Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGA 375 (Bonus). This case dealt with an appeal against a decision of the Council to impose a condition requiring that no part of a retail butcher’s shop is to be used for the manufacture of small goods not normally made in a retail butcher’s shop. The Council’s approval was sought to permit the continuance of an existing use of premises with the Living Area zone under the County Scheme. The premises had operated as a retail butcher’s shop since 1915 and were subject to a residential district proclamation under the LG Act 1919 in November 1944 prohibiting the use of buildings for any trade, industry, manufacture or shop. Sir Bernard Sugerman noted that the

characteristic feature of a retail butcher’s shop is the sale of raw meat by retail. In addition, there are associated activities carried on by retail butchers, including sausage making, although these associated activities vary from shop to shop. This was caused by customer demand and as a means of disposing of off-cuts, otherwise unsaleable as raw meat. In addition, there had developed a practice of retail butcher’s shops making “cooked” sausages which were pasteurised and dried processed meats to cater for the demands of what Sir Bernard quaintly described as “foreign migrants”. In the subject shop, the making of “cooked” sausages had commenced in the previous year to the appeal, while other activities, such as the making of raw sausages, corning beef and rendering dripping, were carried out. Some of the sausages were sold by wholesale. Sir Bernard noted that some limited selling of sausages by wholesale is part of the business of a retail butcher’s shop. It should be noted that Bonus is an existing uses case, where characterisation has some special features which will be considered later in this book. The Council argued in Bonus that the “purpose” protected by the existing uses provisions in the County Scheme should be limited to the individual activities carried on immediately before the appointed day when the residential district proclamation was made. Sir Bernard considered such an approach was too narrow. He continued at p 378 as follows: “‘Purpose’ is commonly to be inferred from the activities carried on. There is often one dominant activity which characterises the ‘purpose’ (e.g. the sale of raw meat in the case of a retail butcher’s shop) around which cluster incidental and subordinate activities which vary from place to place and from time to time. … All the above discussion is subject to a necessary and important qualification. That qualification is that it is possible that what starts off as a subsidiary and purely incidental activity may develop to such an extent as to give rise to a second ‘purpose’ of use, or even to displace the original ‘purpose’ altogether and put a new one in its stead. Thus a use of premises for the sale of raw meat

by retail and for the making and sale of sausages may be a use for the sole ‘purpose’ of carrying on a retail butcher’s shop to which the making and sale of sausages is subordinate and merely incidental. Or it could, in particular circumstances, be a use for that purpose and also for the further and distinct purpose of a small goods factory. Indeed that might happen even if the only materials employed were the off-cuts of the carcases bought for the sale of the meat therefrom in the shop, the magnitude of the particular use being one relevant consideration in what is essentially a question of fact and degree whose answer must depend upon the facts of the particular case.” Conclusions The following conclusions can be derived from Bonus: • A purpose is to be inferred or derived from the activities proposed to be carried out. • There may be one dominant activity which defines or characterises the purpose around which cluster incidental and subordinate activities which may vary from place to place or time to time. These incidental and subordinate activities are subsumed within the overall dominant purpose. • There may be more than one purpose of development carried out on the same premises or in the same building. • Something which is an incidental and subordinate activity, and hence, subsumed within a principal purpose, may develop into a second purpose of development and may even replace the original purpose entirely. • The task of characterising the purpose of development is essentially a question of fact and degree and its answer depends upon the facts of each particular case.

¶21-060 Scott’s Provisions Stores Pty Ltd v Sydney City Council — purpose was a separate and distinct use of

land In Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 (Scott’s Provisions Stores), Sugerman J in the Land and Valuation Court of NSW considered an appeal against the refusal by the Council of an application to use land zoned Living Area under the County Scheme at Redfern for a car park in connection with a number of adjoining premises forming a bakery complex, including a factory (at which pies were manufactured) and a wholesale and distribution centre. The adjoining pie-making factory was protected as an existing use under the County Scheme. The Council had refused consent on the ground that the use of the land for parking was incidental to the adjoining factory and hence, development for the purposes of an industry, was a prohibited use. The applicant claimed parking was a separate and severable use from the factory, and that parking was permissible with consent in the Living Area zone, as it fell within the category of an innominate permissible development. The Court decided to grant development consent for the use of the land for the parking of motor vehicles on the basis that such a purpose was a separate and distinct use of land, namely the purpose of parking of motor vehicles, and as such, it was an innominate permissible purpose. Sir Bernard Sugerman said at p 195–196: “… I think that the prohibition should not be read as extending to a use of such a character that it is clearly severable from the exercise of the handicraft or the carrying on of the process or operation and that by itself it could lawfully be carried on, with consent, in a living area zone; such a use may conveniently be termed a separate use. … [p 196] … there are classes of activities which may sometimes be found to be associated with an ‘industry’ in the defined sense in the pursuit of some common ultimate object of gain and may

sometimes be found to be carried on without any such association. In my view the prohibition is not directed to such classes of activities merely on account of such association. The proposed use in the present case may be considered as incidental in large measure to the use of the adjoining premises for the ‘business or commercial purpose’ (see definition of ‘commercial premises’) of the sale and delivery of goods by wholesale, and only to a minor, or possibly trifling, extent to their use for ‘industry’, that is, for the handicrafts or processes by which pies are made. However, it is, in my opinion, a separate use of the kind which I have earlier mentioned. It is, that is to say, a severable and separate use, innominate but falling within the residuary description in col. IV, for the purpose of the parking of motor vehicles.” Conclusions The following conclusions can be derived from Scott’s Provisions Stores: • The test of whether a purpose of development is a separate and independent purpose from another is whether the two purposes are severable, namely, whether the operation of one does not inextricably require the other, although sometimes one may be carried out that is associated with the other, but on other occasions may not. • As a corollary, the test of whether a purpose of development is ancillary and incidental to another purpose is whether the two purposes are not severable but are inextricably linked, such that they ordinarily occur together because it is essential they are, rather than are merely sometimes associated with each other as a matter of convenience, but not always so. • Two purposes of development are more likely to constitute separate and independent purposes of development where one (or both) are permissible with consent in their relevant zones.

¶21-070 L.N. Price Pty Ltd v Leichhardt Municipal Council In L.N. Price Pty Ltd v Leichhardt Municipal Council (1959) 4 LGRA 63 (L.N. Price Pty Ltd v Leichhardt Municipal Council) in the Land and Valuation Court of NSW, Sugerman J considered an appeal against the refusal by the Council of an application to extend a furniture factory in Lilyfield. The case involved issues relating to a new DA in the Living Area zone under the County Scheme and the existing use protection under cl 32 of that County Scheme. It is not necessary to recount the detailed facts of this case. Sir Bernard Sugerman considered the meaning of “purpose” used in the existing use rights protection provision in the County Scheme and in the Land Use Table with the zoning scheme in Pt III of the County Scheme. Sir Bernard held at p 67 (footnotes excluded): “In Bonus Pty Ltd v Leichhardt M.C. I concluded that the word ‘purpose’ in cl. 32 was used in what has been termed in argument in the present case a descriptive sense; thus, in the present case, the relevant purpose would be describable as the manufacture of furniture or by some equivalent expression. In that case the question was whether the idea of use for a purpose was employed in that sense rather than as referring to the details of the particular aggregation of activities which had been carried on on the premises immediately before the appointed day. In the present case the precise question is whether there must be imported into cl. 32 the classification of industry under Pt. III into ‘local light industries’ and ‘industries other than local light industries’, so that the manufacture of furniture, for example, carried on in a manner and under conditions which would bring it within the definition of ‘local light industry’ for the purposes of Pt. III is, under cl. 32, a different purpose of use from the manufacture of furniture not carried on in that manner and under those conditions. Still more precisely, the question is whether that importation must be made in the application of cl. 32 to a case in which, in reliance upon the authority conferred by cl. 33, to floor space of a building is extended from less than 5,000 square feet

to more than 5,000 square feet and that is the only ground on which it could be said that the manufacture of furniture carried on in that building is transmogrified from ‘local light industry’ to ‘industry other than local light industry’. The word ‘purpose’ in Pt. III in the relevant aspect of its use there has a special and artificial sense appropriate to that Part which differs from its descriptive or ordinary sense in this context. As applied to the ‘purposes’ denominated ‘local light industries’ and ‘industries other than local light industries’, it embraces as part of the one concept, not merely the particular manufacturing activity which is the purpose in the more usual sense but also the presence or absence of certain specified conditions which determines whether the matter is to be regarded as falling within one category or the other. As between the two senses of the expression which I have referred to, I have come to the conclusion that, in relation to the very precise question which is raised by this case, ‘purpose’ has its more usual or descriptive sense rather than the special sense in which it is, in some of its aspects at least, employed in Pt. III. As in Bonus Pty Ltd v Leichhardt M.C. (above), I think that that is here also the ‘more reasonable and practical and workable view’ which should be adopted in the absence of some plain indication that the word was here intended to be used in, or with something of, the special and artificial meaning which it has in Pt. III.” Conclusions The following conclusions may be derived from L.N. Price Pty Ltd v Leichhardt Municipal Council: • The word “purpose” when used in relation to existing use provisions is used in an overall descriptive sense rather than by referring to the particular aggregation of activities carried out. • The word “purpose” when used in an EPI in the Land Use Table has a special and artificial sense appropriate to those provisions. It refers to not only the particular activity which would be its purpose in a descriptive sense, but whether it fell into one

category or another in the Land Use Table.

¶21-080 Goodwins (Sydney) Pty Ltd v Sydney City Council — severable and separate use In Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346, Hardie J in the Land and Valuation Court of NSW heard an appeal against the refusal of a DA to erect a building for garaging motor vehicles at Darley Street, Newtown. The land was zoned Living Area under the County Scheme. The applicant conducted a business in nearby premises selling, maintaining and servicing television sets. Most of the company’s sales were on hire-purchase agreements with the hirer obliged to enter into a maintenance agreement with the applicant. The applicant had a policy of bringing out television technicians from England. It acquired the subject site for residential accommodation for these migrant technicians. The garage building proposed was to accommodate the mobile vans used by these technicians for the service and maintenance of televisions in the homes of hirers and not on the subject land. In the appeal, the Council submitted that the garaging of the mobile repair vans was an industrial use prohibited under the County Scheme on the subject land. Hardie J held at p 353–354 (footnotes excluded) as follows: “The point at issue between the parties on this branch of the case should, in my view, be determined having regard to the principles set out in the judgment in Scott’s Provision Stores Pty Ltd v Sydney City C. In that case the Court had before it a very similar problem involving the question as to whether incidental or ancillary activities (in that case, also, the parking of motor vehicles) proposed on land other than and separated [p 354] from the applicant’s main industrial site should be classified for the purpose of the Ordinance as industrial rather than of a commercial or other non-industrial character. The test there applied was whether the incidental activities are ‘so commingled in time, place and circumstances with the actual exercise or

carrying out of the handicraft, process or operation itself that in a practical sense one cannot conceive of the one being carried on without the other’. Applying that test, I am of the opinion that the proposed use of the subject area for the garaging of vehicles used by residents of the subject property in the out-door mobile section of the repair and maintenance branch of the appellant’s business is ‘a severable and separate use, innominate but falling within the residuary description in col. IV, for the purpose of the parking of motor vehicles’. I accordingly do not accede to the submission of counsel for the respondent that the appeal should be dismissed on the ground that the use proposed would fall into the category of industry other than local light industry within the meaning of the relevant provision of the Ordinance.” Thus, Hardie J held that the garaging of the vans on premises where the technicians lived was severable and separate from the applicant’s industrial use, rather than being an incidental part of that industrial use.

¶21-090 Gold Star Bakeries Pty Ltd v Waverley Municipal Council — not a severable and separate purpose In Gold Star Bakeries Pty Ltd v Waverley Municipal Council (1964) 10 LGRA 396 (Gold Star Bakeries), Hardie J in the Land and Valuation Court of NSW heard an appeal against the refusal of a DA to use land adjoining an existing bakery at Rose Bay for the parking of vehicles and the loading and unloading of vehicles used in its bakery business. The land was zoned Living Area under the County Scheme. The bakery was an industry which was prohibited in the Living Area, but it enjoyed existing use protection to continue to operate. The applicant argued that the parking and loading area were a separate part of the business, being a vending and distributing business, which was a non-industrial use. Hardie J rejected this submission, holding at p 399 (footnotes excluded): “I am of the opinion that the appellant’s business constitutes one integrated and indivisible business or activity and that it is not

capable of subdivision or sectionalisation in the manner contended for by counsel for the appellant. The subject area has been integrated with the factory premises; it has, as counsel for the respondent has submitted, become part of the curtilage of that factory; the activities proposed to be carried on there, particularly the loading and unloading of delivery trucks, are essentially day to day activities of the bakery business. It is impossible, in my view, to treat them as resembling in any shape or form the activities which were treated as separate or severable in Scott’s Provision Stores Pty. Ltd. v Sydney City Council, and Goodwins (Sydney) Pty. Ltd. v Sydney City Council. The facts of the present case bring it within the principles enunciated and applied in Hazell v Parramatta City Council and in Summons & Graham Ltd. v Parramatta City Council. (See also Snowmaster Pty. Ltd. v Leichhardt M.C.).” In Gold Star Bakeries, the Court noted that the bakery constituted one integrated and indivisible business or activity which was incapable of severance. Hence, the parking and loading area could not be considered as a separate and severable purpose of development.

¶21-100 Shire of Perth v O’Keefe — key decision in relation to characterisation Further to ¶21-030, where this case was referred to in the context of the meaning of a purpose of development, the Shire of Perth v O’Keefe decision of the High Court is also often cited in relation to characterisation. The land in question formed part of a residential zone under Western Australian by-laws. The by-laws also contained provisions protecting existing uses where, at the date of publication of the by-laws, any land, building or structure was lawfully used for a purpose not permitted by the by-laws. Such existing uses were permitted by the by-laws to be able to continue. The land in question was used at the date of publication of the by-laws for the purposes of pottery making. The Supreme Court of Western Australia held the land could be used for light industry as defined under the by-law, and not only for pottery making. Kitto J (with whom Owen J agreed fully and

Menzies J partially) said at paragraphs [6]–[10]: “6. The view of the learned judge of first instance was that the meaning of the word ‘purpose’ in by-law 372 to be ascertained by referring back to the zoning by-laws, such as by-law 337, which set out the ‘purposes’ that are excepted from the generality of the prohibitions against user. Since pottery making is nowhere mentioned in these by-laws as a ‘purpose’, his Honour looked for a ‘purpose’ mentioned therein which comprehended pottery making. The parties were agreed that pottery making as carried on upon the respondents’ land at the relevant time was a ‘light industry’ within the definition in by-law 14. ‘Light industry’ is named as a ‘purpose’ in one of the restrictive by-laws, namely bylaw 354. This seemed to his Honour sufficient warrant for the conclusion that ‘light industry’ was the purpose for which by-law 372 permitted the respondents’ land to continue to be used. (at p 534) 7. It is a legitimate comment that similar reasoning would justify a conclusion that industry generally is the relevant purpose; for pottery making is an industry, and an industry (without qualification) is mentioned as a purpose in another restrictive bylaw, namely 356(1)(a). With respect, I think that the mistake in the reasoning is in supposing that because the exception listed in the prohibitory by-laws are all thereby labelled ‘purposes’ an intention appears to limit the meaning of the word throughout the by-laws so that nothing else may be recognized as a ‘purpose’. … 8. … Once depart [sic.] from the broad categories that are found in the prohibitory by-laws, it is said, and there is no limit to the minuteness of detail that may enter into the description of a purpose so as to form an essential part of it. But at the outset it is necessary to observe that the ‘existing use’ by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally

for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v Nottingham Corporation (1960) 1 WLR 707, at p 717; and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases. If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to be [sic. Should be “by”] a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher’s shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the ‘purpose’ in the relevant sense would be the purpose of a butcher’s shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me to be clear that while changes in methods and designs would be immaterial a use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose. (at p 535).

9. In three cases under comparable legislation Sugerman J has expressed views which correspond with those above expressed. The cases are Forrester v Marrickville Municipal Council (1954) 19 LGR (NSW) 232, at p 236; Bonus Pty. Ltd. v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, at p 378 and Price (L.N.) Pty. Ltd. v Leichhardt Municipal Council (1959) 4 LGRA 63, at p 67. In the argument in the last of these cases a view was submitted to his Honour which was very close to that which Jackson SPJ accepted in the present case. Sugerman J rejected it, attributing to the word ‘purpose’ a different meaning in the provisions as to existing uses from that which it had in the prohibiting provisions. The latter meaning he considered was a special meaning governed by the special descriptions of categories. The former meaning, which he called the descriptive meaning, he regarded as the more usual. The view he took of the provision corresponding with by-law 372 — ‘the more reasonable and practical and workable view’ he had called it in the Bonus Case (1954) 19 LGR (NSW), at p 378 — was that ‘purpose’ is intended to refer to ‘such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, manufactures, shops or places of public amusement’, such as the expression ‘retail butcher’s shop’, rather than ‘to the details of the particular aggregation of activities’. (at p 536). 10. For the reasons stated I am of the opinion that the declaration made in the order now under appeal describes too widely the purpose for which the respondents’ land was being used at the commencement of the by-laws, and it should be replaced by a declaration that the only purpose for which by-law 372 permits the land to continue to be used is the purpose of pottery making. (at p 536).” Conclusions The key conclusions arising from the High Court’s decision in Shire of Perth v O’Keefe are as follows: • The approach to determining the purpose of development for

provisions protecting existing uses where there is no development consent is different to that applicable when characterising for the permissibility or prohibition of development under the Land Use Table in an EPI. • When characterising development for the purposes of existing use protection where there is no development consent, the approach of characterising by reference to the lists of purposes contained in the applicable EPI is incorrect. • The correct approach in characterising development for the purposes of permissibility is by reference to the special descriptions of categories in the relevant EPI. • The correct approach in characterising development for the purposes of existing use protection where there is no development consent is by reference to its descriptive meaning. The descriptive meaning is discerned not by a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods used, but by looking at a description of no greater degree of particularity as appropriate and relevant in the application of planning legislation. A corollary to the conclusions are further conclusions perhaps so obvious that they have not been specifically argued, namely: • in characterising development for the purposes of permissibility/prohibition or other category in an EPI or the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), reference is made to the definitions in the specific clause of the EPA Regulation for which the characterisation is being undertaken and not another EPI or another part of the EPA Regulation. • where a development requires to be characterised for the purposes of permissibility/prohibition or other category in more than one EPI or the EPA Regulation, that development needs to be characterised separately for each applicable EPI or the EPA

Regulation and they may have different purposes for the different EPIs or the EPA Regulation for which it is characterised. As is discussed later in relation to existing use protection, where an existing use has the benefit of a development consent, the use is characterised by what uses are approved by the development consent and not by application of Shire of Perth v O’Keefe or the genus/species tests (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 (Botany Bay v Workmate Abrasives)).

¶21-110 Foodbarn Pty Ltd v Solicitor-General In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (Foodbarn), the NSW Court of Appeal considered an appeal against the grant of an injunction against Foodbarn for the unauthorised use of premises for a shop. These were relator proceedings, from a period when limited rights of standing to sue required otherwise aggrieved parties who lacked the necessary locus standi to apply for the Solicitor-General to commence proceedings on their behalf. Foodbarn and others occupied premises within the Fairfield and Blacktown Local Government Areas zoned Light Industrial and used these premise as shops similar to an ordinary supermarket, although with an emphasis on the wholesale trade and larger bulk purchasers. At first instance, the trial judge found that the sale of goods by retail was a substantial purpose for which the premises were being used. The relevant planning schemes prohibited development for the purposes of a shop in the zoning for the sites. Glass JA delivered the principal judgment with Samuels JA and Hutley JA agreeing with him. Glass JA said at p 160–161: “An ordinance which sets out to provide a catalogue of activities some of which are permitted and others prohibited could hardly intend that the prohibited activity would be acceptable if it were allied to some other permitted activity. A prohibited purpose is equally repugnant to the planning scheme, whether or not it be carried out in isolation from other purposes.

… [p 161] It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of others whether in terms of income generated, space occupied or ratio of staff engaged.” This statement by Glass JA in Foodbarn is the classic and often recited judicial exposition of the principles for characterisation. Conclusions The following conclusions can be derived from Foodbarn: • Where a purpose of development is ancillary and incidental or subordinate to some other purpose, for the purposes of characterisation the ancillary and incidental or subordinate purpose is ignored and treated as part of the dominant purpose and subsumed within it. • The above applies irrespective of whether the dominant and ancillary or incidental (servient) purposes relate to the whole of premises or are found in separate parts of the premises. • Where two purposes of development are separate and independent of each other, it is irrelevant which of the two is

larger and it is irrelevant whether one is overshadowed by the other in terms of income generated, space occupied or ratio of staff engaged.

¶21-120 Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates In Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154 (Twibill), the NSW Court of Appeal considered an appeal relating to a DA for a retirement village at North Turramurra. The site was zoned Residential 2G under the Ku-ring-gai Planning Scheme Ordinance (Ku-ring-gai PSO). In this zone, development for the purposes of a hospital was permissible with consent. The Ku-ringgai PSO defined hospital as including a home for aged persons. The issue in dispute between the developer and the Council was whether the development was for the purposes of a hospital and hence, permissible despite the fact that development for the purposes of a boarding house or residential flat building was prohibited in the zone. The Council refused to grant consent to the DA and, on appeal, the Local Government Appeals Tribunal granted consent on the basis that the proposal constituted development for the purposes of a hospital. The Council sought to challenge the conclusion on the characterisation of the development. The NSW Court of Appeal found that the development was not a home for aged persons on the basis that persons over 55 years of age are not necessarily aged persons and hence was not development for the purposes of a hospital. But on the assumption it did constitute a home for aged persons, Glass JA considered the arguments of the parties relating to the construction of the Ku-ring-gai PSO. If the development was a home for aged persons and hence a hospital it would have been permissible in the zone, even though development for the purposes of a boarding home and a residential flat building were prohibited. However, Samuels JA expressed no view on this question, while Mahoney JA said that this was not a proper case to consider this question. Glass JA said at p 160–161 (footnotes excluded): “The various purposes to be found in cols IV and V in the typical

planning ordinance have not been chosen in a way which establishes a series of purposes segregated into mutually exclusive categories. They do not eliminate the possibility that a development may be proposed for more than one of the denominated purposes. When two or more purposes co-exist one of which is prohibited and one permitted (with or without consent), it is necessary as a matter of construction to determine which of the two shall prevail. It is proper in my view to discern a legislative intention in the ordinance that if one of two conflicting purposes is dominant and the other servient, it is the former which lends its character to the development. On the other hand, if neither subserves the other, the ordinance on its proper construction treats the development as actuated by two independent purposes one of which is allowed and one disallowed: Foodbarn Pty Ltd v Solicitor-General. In my opinion the developer’s purpose of building residential flats and a boardinghouse on the subject premises is ancillary to its purpose of building a home for the aged. In accordance therefore with authority and principle it is legitimate to disregard the prohibited purposes and to treat the dominant purpose as that which the development proposes for the whole site. Mr Gyles accepted that a prohibited servient purpose could be disregarded where the permitted purpose was specifically described. He submitted, however, that where the permitted purpose as here was innominate only, its dominance as a purpose could not overcome any subordinate purpose which was specifically prohibited. The submission was put in the following way. If a purpose is specified in col. IV as a permitted purpose, consent may be granted to ancillary purposes prohibited by col. V. If, however, a purpose appears in col. IV only as a member of the class of purposes not prohibited by col. V, prohibited ancillary purposes may not be the subject of consent. The submitted construction was said to be justified by the difference in the draftsmanship. Mr Gyles firmly disclaimed any suggestion that purposes impliedly prohibited or permitted were to be enforced with greater rigour

than those prohibited or permitted expressly. He also declined to submit that the width or narrowness of a [p 161] purpose in point of construction should differ according to whether it was permitted or prohibited expressly or impliedly. But if the difference in draftsmanship does not entail such distinctions, there is no work which it can do. For example one may compare zone residential E with zone residential G. In the former zone hospitals are specifically permitted under col. IV and refreshment rooms are impliedly prohibited under col. V In the latter hospitals are impliedly permitted under col. IV and refreshment rooms are specifically prohibited under col. V. Accordingly to the submission put, a hospital could be authorized in the first zone although it had a refreshment room. In the second zone it could only be authorized provided it had no refreshment room. In my opinion there is no warrant for adopting such a construction. It would mean that a hospital permitted by implication has a narrower extension than one permitted expressly. I do not believe that such an intention should be imputed to the draftsman as a consequence of the structure of the columns. The pattern adopted of specifying the majority of enumerated purposes in some cases (residential B, C and G) and the minority in others (residential D, E and F) admits of no ready explanation but I am unable to accept that the suggested hypothesis explains anything.” Conclusions Although the above are the views of a single judge and were not agreed to by the other two judges, the following conclusions can be derived from Glass JA’s judgment as are likely to be correct, namely: • The proposition that where a permissible purpose is an innominate purpose, the fact that it was the dominant purpose could not overcome any subordinate purpose which was a nominate prohibited development, is not correct. • The fact that a particular purpose of development is an innominate

purpose as opposed to a nominate purpose does not mean it has a lesser or inferior legal status. Purposes of development in the Land Use Table of a EPI are treated as having the same legal force, irrespective of whether they are nominate or innominate. A nominate purpose does not have priority over an innominate purpose.

¶21-130 C.B. Investments Pty Ltd v Colo Shire Council In C.B. Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 (C.B. Investments Pty Ltd v Colo Shire Council), the NSW Court of Appeal considered an appeal in relation to a declaration sought by the Council that the company’s proposal requires consent from the Council. C.B. Investments Pty Ltd purchased land fronting the Hawkesbury River at Ebenezer to use to breed horses. The land was flood prone and contained a long mound of sand and silt deposited by floods behind the river bank. In December 1973, the company lodged an application to level the mound. The Council treated the application as being for extractive industries and requested further information and an Environmental Impact Statement (EIS). This was provided and it disclosed that soil, amounting to about 29,000 cubic yards, would be removed off site. The soil to be removed was to be sold. However the use of the site was for agriculture and would continue to be for agriculture once the soil was removed. The Council, having formed the view that the proposal was for extractive industries, refused consent. A merit appeal was lodged against the Council’s refusal. This appeal was adjourned pending the outcome of the proceedings for a declaration. The applicable planning controls provided that, on the subject land, development for the purposes of agriculture was permissible with the consent of the Council, while development for the purposes of extractive industry was prohibited. At first instance it was held that the proposal was development for the purposes of extractive industry, and hence prohibited. On appeal, the company argued the extraction was incidental to agricultural activity. Hope JA and Reynolds JA held that the proposal was development for the purposes of extractive industry and hence prohibited. Mahoney JA in dissent held the proposal was development for the purposes of agriculture.

Although in agreement, Hope JA and Reynolds JA provided separate judgments. Hope JA said at p 271–272: “Although, looked at in one way, what the appellant proposes could be regarded as the carrying out of a work, namely, the removal of the mound, the character, extent and other features of the proposed activities lead to the conclusion of fact that they would also constitute a use of the land, namely, the winning of extractive materials. I will assume, without deciding, that the proposed activities could properly be regarded as the carrying out of a work for the purpose of agriculture within the meaning of cl. 47(2). This circumstance would not entitle the Council to give its consent to the activities, if, as well as having that character, they were also a use of the land for a non-agricultural purpose. I [p 272] see no reason why, in a particular case, an activity cannot have such a double character. I do not think that the activities of man upon land are always required to, or always do, fit exclusively into one only of the various categories which planners devise. I do not think that the proposed activities are required so to fit in the present case, and on the assumption I have made that they would constitute a work for the purpose of agriculture, I think that they would fit into more than one category. The other of those categories is the use of the land for the purpose of extractive industry, and hence the Council cannot give its consent to the appellant’s application. An alternative approach to the problem is that the character, extent and other features of an activity may lead to a conclusion of fact that what will be done should not be regarded as the carrying out of a work for some ultimate purpose, but as the use of the land for a purpose the nature of which is to be ascertained by reference to the acts involved in the carrying on of the particular activity. On this view the removal from agricultural land of soil and other material within the definition of ‘extractive material’ may in some cases be regarded as an activity which is

subsumed in the agricultural use of the land. An obvious example is the excavation of soil in order to construct the type of dam which is commonly found on agricultural properties. On the other hand the character, extent and other features of activities which involve the removal of extractive materials from agricultural land may be such that, as a matter of fact, and no matter what is to result or to be done when the activities cease, it is proper to regard them as constituting a use of the land in themselves, not subsumed in any other use of the land, and thus a use for the purposes of extractive industry.” Reynolds JA discussed the relevance of the motives of the applicant at p 276 where he said as follows: “The parties adopt polarised positions, the appellant submitting that the findings as to the motivation and intention of the owner and the relationship between the present and ultimate use compel a conclusion in its favour, whilst the respondent submits that the matters of intention and motive are irrelevant and only the use itself should be looked at in what is called an objective way to determine the purpose for which the land is being used. I do not think that either absolute position is correct. There may be many cases where a proposed activity or erection of a building cannot be characterized without reference to the intention of those concerned and other cases where it is of little or no relevance. I forbear from instancing examples that come to mind for fear of creating embarrassing dicta. The option of silence is to be preferred. In this case it cannot be open to doubt that what is proposed to be done falls within the definition of ‘extractive industry’ in the interim development order. … … I am content to decide this case on the simple basis that a development was involved and that his Honour was correct in holding that the development was not only for the purposes of agriculture and that for this reason it is not a development which can properly be the subject of the consent of the responsible authority or the tribunal.”

Reynolds JA dealt with the matter directly and simply. He found that what was proposed falls within the definition of “extractive industry” as a question of fact. Thus the development was not only for the purposes of agriculture and hence it was not a development for which consent could be granted (at p 276). Mahoney JA dissented finding that the development was for the purpose of agriculture. Conclusions The following concurrences may be drawn from the discussion in C.B. Investments Pty Ltd v Colo Shire Council: • A particular development may have a dual character fitting into more than one of the purposes of development in an EPI. Where an activity has a dual character, one of which is permissible and the other is prohibited, consent cannot be granted if the activity is for a prohibited purpose (Hope JA). • Alternatively, the character, extent and other features of an activity may lead to a conclusion of fact that there are two successive purposes of development, namely a proximate purpose and an ultimate purpose. In these circumstances, an examination of what is involved in the proximate purpose may lead to a conclusion of fact that the proximate purpose may be subsumed within the ultimate purpose, such as the excavation of soil to construct a farm dam. Or, it may lead to a conclusion of fact that the character, extent and other features of the proximate purpose are such that, irrespective of the ultimate purpose, the proximate purpose constitutes a separate and independent purpose of development which is not subsumed within the ultimate purpose (Hope JA). • In characterising the purpose of development, the intentions or motivations of the owner are neither conclusive nor are they irrelevant, and the extent to which they are relevant (if at all) depends upon the particular case (Reynolds JA). However, this view has been rejected in Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710 (Woollahra v Minister); Macquarie International Health Clinic Pty Ltd v University of

Sydney (1998) 98 LGERA 218 (Macquarie International Health); and by Kitto J in Shire of Perth v O’Keefe at 534 [CLR] and 149 [LGRA].

¶21-140 Lizzio v Ryde Municipal Council In Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 (Lizzio v Ryde Municipal Council), the High Court considered an appeal arising from proceedings initiated by Ryde Council seeking an injunction to restrain the Lizzios from using premises at Balaclava Road, North Ryde for the purposes of selling any goods, particularly flowers. Mr and Mrs Lizzio owned the land in question, which was a standard suburban block containing the dwelling in which they lived. Mr Lizzio was a Telecom linesman and for many years he and his wife had supplemented their income by selling flowers from the land. The flowers were grown on the Lizzios’ land together with a neighbouring property. The flowers were placed in buckets and displayed on a stand protected by a beach umbrella inside the boundary of their land, but in a position where they can be seen by passing traffic. The quantity of flowers sold varied with an average of 55 to 60 bunches per week at a price of $1.00 or $1.50 per bunch. The Council commenced proceedings to restrain the selling of flowers. The Council’s proceedings were dismissed in the Land and Environment Court of NSW (NSWLEC), but the Council successfully appealed to the NSW Court of Appeal from whence an appeal was made to the High Court. It is interesting to consider why these proceedings were pursued for what at most was an annual income to the Lizzios of $4,680.00, a sum no doubt miniscule compared with the legal costs of the initial proceedings and two appeals. The Lizzios’ land was zoned Residential 2(a) where development for the purposes of a dwelling house was permissible without consent and development for the purposes of commercial premises, roadside stalls and shops was prohibited. The Lizzios argued that the use of selling flowers was ancillary and incidental to the use of the land for a dwelling house and further, it was protected as an existing use. The High Court allowed the appeal on the grounds that the selling of

flowers constituted an existing use. For current purposes, the aspect of this case of relevance is what the High Court said in relation to the question of characterisation. Gibbs CJ (with whom Murphy J, Wilson J and Brennan J concurred, while Deane J dissented on the existing use conclusion, but not the majority’s conclusion on characterisation) said at paragraph [6]: “6. The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157, at p 161 where Glass JA said: ‘It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.’ Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass JA in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA, at p 161 become apposite:

‘Where the whole of the premises is used for two or more purposes none of which subserved the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others …’ (at p 217)” Lizzio v Ryde Municipal Council provides endorsement by the High Court of the classic statements by Glass JA in Foodbarn. Conclusions The key conclusions which may be derived from this decision are as follows: • The question of whether development is ancillary and incidental to another purpose or whether it is a separate and independent purpose is one of fact and degree. • Factors which may lead to a conclusion that a development is not ancillary and incidental to a dominant or principal purpose of a development include: – the regularity of the activity – the extent of the activity, and – the fact that items for sale were sourced from other premises.

¶21-150 Royal Agricultural Society of New South Wales v Sydney City Council In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (Royal Agricultural Society v Sydney City Council), the NSW Court of Appeal considered an appeal in relation to proceedings brought by the Council against the Society to prevent it from using the Sydney Showground for open air music concerts. The Society had claimed it had existing use protection. That claim was not accepted by the NSWLEC. There, Cripps J

characterised the use of the arena for concerts as “amplified open air concerts”. The Society claimed the use was properly characterised as a place of public entertainment, or alternatively musical entertainments. The appeal by the Society was unsuccessful with the Court holding that the Society had no existing use rights for open air amplified musical concerts. McHugh JA (with whom Hope JA and Samuels JA concurred) held at p 309–310: “The principles applicable: The competing submissions of the parties raise the question as to what is the proper test for characterising the purpose of the ‘existing use’ of land when it has been used for a variety of activities. The object of ‘existing use’ provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because ‘existing use’ provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which [p 310] reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an ‘existing use’ so narrowly that natural changes in the method of using the land or carrying on a businesses or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality

which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc. as a class have made of the land.” McHugh JA then referred to the decisions in Bonus, Shire of Perth v O’Keefe and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; 28 LGRA 410 and he continued at p 311: “The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment.” Conclusions The following conclusions can be derived from the decision in Royal Agricultural Society v Sydney City Council: • The test used by the courts to characterise developments under existing use provisions has been devised in the context of the objectives of existing use provisions in balancing the rights of owners to continue using land despite changes to the planning controls with the rights of the local authority to implement and enforce new planning controls. The aim is not to characterise the purpose of an existing use so widely that the land could be used for a prohibited purpose which was not part of its use at the commencement date of the new planning controls. Similarly, the

aim is not to characterise the purposes of an existing use so narrowly that natural changes in the methods of operation will render an existing use right valueless. • Thus characterising the purpose of an existing use is undertaken at a level of generality which is sufficient to cover the individual activities, processes and transactions occurring, not so narrow as to characterise purposes in terms of detailed activities, processes and transactions which have taken place, but not so broad as to embrace activities, processes and transactions of a kind different from that which occur. • An approach to the level of characterisation is similar to the classification of natural organisms under the Linnean system into a genus, which comprises a number of different species. If what takes place on land is capable of being treated as the majority of species of a genus, then the genus may be used in describing the purpose of the use of that land. If what takes place on land is not capable of being treated as the majority of species of a genus, then the conclusion is that the land is being used for more than one purpose, each of which is equivalent to a species.

¶21-160 Baulkham Hills Shire Council v O’Donnell In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 (Baulkham Hills v O’Donnell), the NSW Court of Appeal dealt with an existing use case relating to an extractive industry. During part of the period, the owner had obtained development consent for the use of the land as a riding school. The Council contended that, following the grant of development consent for the riding school, the existing use of extraction of soil and sand continued not as an independent use, but as a use ancillary to the use of the land as a riding school. Meagher JA (with whom Samuels AP and Clarke JA agreed) rejected this view. He said at p 409–410: “In fact, there are two considerations which invalidate the argument, one factual and one legal. Factually, it does not appear that on a correct analysis the extractions and sales were truly

ancillary. The only evidence that they were in any way ancillary relates to the application for consent made in late 1976, whereas the extractions and sales had been taking place in each of the preceding five years. Moreover, the riding school did not exclusively exhaust the purposes for which the land could be used. Whilst the horses grazed the land adjoining the creek and riding took place during holidays and weekends in these same areas, the extraction took place simultaneously. At no stage in its nine-year existence did the riding school render the land unsuitable for extracting soil and sand, and at no stage during that nine-year period did the extraction render the land unsuitable for grazing or riding. Both uses could and did physically co-exist on the same land at the same time. Neither use can be said to be either dominant or ancillary. If it be true, as it seems to be, that in 1976 some of the extraction was motivated by, and angled towards, the improvement of the riding school, that does not mean that it was not of itself an independent use. The second consideration is legal. Notwithstanding the principles laid down in Foodbarn, it does not follow that such a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is [a] question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that because it is ‘ancillary to’, [p 410] or relates to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although

ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a ‘convenience store’ and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the ‘ancillary’ use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not ‘ancillary’ to any other.” Conclusions The following conclusions can be derived from Baulkham Hills v O’Donnell: • It does not follow from Foodbarn that a use which is ancillary to another use is automatically precluded from being an independent use of land. As a question of fact and degree it may be the case or may not. It is not precluded from being an independent use particularly when the ancillary use pre-dated the use to which it is said to be ancillary, in circumstances where it was not initially ancillary to any other use. Thus, the fact that two uses are related in the sense that they are mutually supportive or beneficial to each other does not deprive them of the capacity to be separate and independent uses. Hence, uses can be ancillary and not result in one being subsumed within the other. When one is subsumed within another it is ancillary and incidental. This again points to the need for care in the use of the word “ancillary” in the discussions on characterisation.

¶21-170 Penrith City Council v Waste Management Authority In Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 (Penrith), the NSW Court of Appeal considered whether a development for a major regional waste disposal depot was designated development under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and thus, required an EIS.

This case did not deal with the characterisation of development for the purposes of establishing whether it was permissible or prohibited. However, the NSW Court of Appeal held that the process of determining whether a particular development was designated development and hence, required an EIS was based on purposes or types of development, and that the principles relating to the characterisation of development to establish its permissibility under an EPI were equally applicable to establishing whether it was designated development. The judgment delivered in this case was a joint judgment (comprising Kirby P, Meagher JA and Handley JA). It provides a useful summary of the law on characterisation, and a summary delivered by the Court, although the references to Sch 3 of the EPA Regulation which provide for the designation of development do not relate to the question of permissibility. The judgment stated at p 383–387 as follows: “The task of characterisation: Stein J acknowledged the questions of fact and degree which are involved in the allocation of any particular activity (as proved in the evidence) to the categories of ‘designated development’ contained in Schedule 3: see Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217; 51 LGRA 114 at 117. The kinds of ‘designated development’ which will be envisaged in particular applications lodged by particular developers for development consent will be multitudinous and of great variety. The catalogue of described developments in Schedule 3 is meant to have general application for an indefinite period and to reflect the purposes for which it is provided. However, the schedule is not open ended. It is necessary in each case to measure the application as lodged with the various classes specified in Schedule 3. Because the task is one of classification the consideration of the development proposed against the various categories specified in the schedule will inescapably result in decisions which are partly impressionistic, upon which different minds may entertain genuine differences. In the nature of the great variety of the classes of development collected in Schedule 3, and the lack of a common genus or

residual clause, it will be easy to dismiss the great majority of the classifications as being wholly irrelevant to the development proposed. Then there may appear one, or possibly more, classifications which the local authority considers to apply but which the developer contests. It is at that stage that the task of characterisation is required. Much has been written about how that task is to be performed. Some of [p 384] the writing provides useful guidance and salutary warnings about the errors which can occur as a result of the pre-supposition that one classification clearly does, or clearly does not, apply. In the nature of the cases which involve a costly contested hearing in the Land and Environment Court — and still more those thought appropriate to appeal to the Court of Appeal — it will not be unusual for a genuine difference to exist as to whether the ‘development’ described in the application fits appropriately into the category described in Schedule 3, or does not. In part, the response to the task of characterisation will involve a judgment not always easily susceptible to full rationalisation. This is because the task involves questions of fact and degree, as the High Court pointed out in analogous circumstances in Lizzio. Because minds may sometimes differ, it will usually be the case that an appellate court will give full weight to the impression reached by the primary judge and the classification which he or she has thought appropriate: see Warren v Coombes (1979) 142 CLR 531 at 547. This will be particularly so in an appeal from a court, such as the Land and Environment Court, which has a specialised jurisdiction and a daily involvement in the controversies of planning and environmental law which are not the constant fare of the Court of Appeal. Nevertheless, at least in an appeal such as the present, this Court is conducting a full appeal on the facts as well as the law: see Rockdale Municipal Council v Clark (1982) 47 LGRA 159 at 160. Whilst we must give respect and weight to the conclusion of the primary judge, having

reached our own different conclusion, we are enjoined not to shrink from giving effect to it: Warren (at 551). This is the approach which has been adopted in a number of cases like the present. It is the correct legal function of his Court. It is also beneficial to the administration of justice. The very fact that questions of degree are inescapably involved in cases such as the present also provides a reason for exercising great care in the use of other cases, said to be analogous, where a task of characterising different facts has fallen for judicial consideration and analysis. In the present appeal, counsel on both sides relied upon earlier decisions of this Court and of judges of the Land and Environment Court (including Stein J himself), hoping to glean from them guidance for the task of classification presently in hand. Great care must be exercised in adopting this course. Otherwise, not only will there be a needless proliferation of embarrassing dicta on the law (to which Stein J referred) but also a time consuming and relatively unproductive analysis of different fact situations measured against different statutory provisions involving different judicial impressions — all solemnly examined in the hope that they will assist the Court in the precise task before it. At least this much emerges from the earlier decisions. Because the words of the statutory definition may relate to parts only of a development as proposed, it is necessary, in performing the task of characterisation to consider the ‘character and extent and other features of the activities’ proposed to decide whether, properly classified for legal purposes, they fit into the definition against which they are being measured. This is what Glass JA suggested in Foodbarn Pty Ltd v SolicitorGeneral (1975) 32 LGRA 157 at 161. It is what Hope JA said explicitly in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270. In Colo (at 272), the court was considering whether a proposal to remove from land belonging to the [p 385] applicant a large mound of ‘extracted materials’ would amount to

a ‘development’ within the meaning of the applicable development order. … There have been two recent decisions in this Court addressed to the task of characterisation to which the competing parties in the appeal respectively referred for support. The first was Bob Blakemore Pty Ltd v Anson Bay Co (Australia) Pty Ltd (Court of Appeal of New South Wales, 23 March 1990, unreported). The question before the Court in that case was whether, as established by the evidence, the removal of gravel constituted an existing use of the land. There was some evidence of the earlier removal of gravel. Hemmings J had expressed himself satisfied that this occurred on ‘rare or infrequent’ occasions and involved only small quantities. In those circumstances, Clarke JA (with whom Priestley and Meagher JJA concurred) was not disposed to disturb his Honour’s conclusions. After referring to Foodbarn and acknowledging that the ‘dominant use’ of the land for coal mining does not mean that gravel extraction could not have been a ‘distinct [p 386] and separate use’, and that nice questions arise ‘where the one use subserves the other’. Clarke JA stated that: ‘The primary consideration will be the relationship between the two uses although in some circumstances the regularity and extent of the activities involved in the minor use may assume significance.’ Upon that basis this Court declined to reach a conclusion different from that reached at first instance that: ‘―the evidence of extraction and use of gravel … did not demonstrate that gravel extraction was a separate and independent use of the land.’ In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, Meagher JA (with whom Samuels AP and Clarke JA concurred) also considered the question of characterisation where the

evidence suggested a number of uses for the determination of whether landowners had the benefit of ‘existing use rights’ under s.109 of the Act to continue using land for a purpose otherwise impermissible. [Case referred to previously.] In their written and oral submissions the parties to this appeal referred the Court to a number of additional cases at first instance. In particular, the appellant was at great pains to suggest an apparent inconsistency between the decision of Stein J in Glenpatrick Pty Ltd v Maclean Shire Council (Land and Environment Court of New South Wales, 18 May 1989, unreported) and the decision now under appeal. Glenpatrick was also a case where par(n) of Schedule 3 was involved. The developer in that case had argued that, since the extractive material was being used on the site solely to fill the land for home sites, it was not development for the purpose of the ‘winning of extractive material’ but merely incidental or ancillary to its main purpose viz, the creation of a caravan and moveable home site together with [p 387] associated recreational facilities. Stein J, applied Colo. He acknowledged that the activities had a ‘dual character’. But he concluded in favour of the Council: ‘I cannot accept that the excavation by dredging and pumping of 800,000 cubic metres of material covering areas of around 20 hectares and the filling of almost equal areas of land for home sites can be viewed as merely incidental or ancillary to the main purpose of the application.’ The appellant urged that, in Glenpatrick, Stein J had applied the correct test which he failed to apply in the present case. The Authority sought to distinguish Glenpatrick having regard to the rather special facts of the case. Alternatively, it submitted that that decision was wrong and that the instant decision was right. It is an unproductive activity for this Court to examine Glenpatrick (which is not under appeal) or other decisions at first instance

where, in their special facts, the use of land having a number of purposes was nonetheless held sufficiently to fall within a prohibited purpose, properly so understood. It is enough to deal with this appeal. We can do so the more readily because of the emphasis which Hope JA in Colo, Clarke JA in Blakemore and Meagher JA in O’Donnell placed upon the need to look at the facts in their detail and to consider, on the way to the characterisation finally assigned, whether, notwithstanding the existence of another ‘primary’ use of development purpose, it may properly be said that an ‘ancillary’ use or development purpose is involved. If it is, it will attract legal consequences.” It is noteworthy that the NSW Court of Appeal endorsed the dicta of Hope JA in C.B. Investments Pty Ltd v Colo Shire Council, even though they were of a single judge and not expressly endorsed by the rest of the majority in that case. Conclusions The following conclusions can be derived from the NSW Court of Appeal’s judgment in Penrith: • In characterising a particular development, it is necessary to measure the particular application against the various classes specified (which in the case of characterising for permissibility are the classes in the Land Use Table and the applicable EPI). This follows the decision in Shire of Perth v O’Keefe, that characterisation for permissibility (and for designated development) is undertaken by reference to the classes or categories of purposes of development in the applicable EPI. • In undertaking the task of characterisation initially one reviews the entire range of purposes in the relevant EPI to dismiss those which are wholly irrelevant and to narrow down those purposes which are potentially relevant for detailed examination. • The task of characterisation involves questions of fact and degree, as noted in Lizzio v Ryde Municipal Council. The process involves judgments not always susceptible to full rationalisation where minds may genuinely differ.

• In appellate proceedings, an appellate court will give full weight to the impression reached by the primary judge, particularly where it is an appeal from a specialised court such as the NSWLEC. But in an appeal, the court is conducting a full appeal on the facts as well as the law, and the appellate court must reach its own conclusion. • Care must be taken in approaching characterisation by using factual conclusions in other cases involving different but analogous factual situations, as such an approach may be unproductive. • In undertaking the task of characterisation it is necessary to consider the character and extent and other features of the activities to decide whether a proposed activity fits with a particular definition of a purpose against which it is being measured. This is particularly the case as the particular definitions of purposes may be related to parts only of a proposed activity. • A use is separate and independent where by reason of its nature and extent it is capable of being an independent use, and it is not prevented from being a separate and independent use because it may be related to or interdependent with another use. An example of this is a book publisher who opens a sales room to sell his products. Here the selling of books is an independent use although it is related to the use of publishing (from Meagher JA in Baulkham Hills v O’Donnell at 409 and cited in Penrith).

¶21-180 Steedman and Another v Baulkham Hills Shire Council [No 2] In Steedman and Another v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 (Steedman [No 2]), the NSW Court of Appeal considered another existing use rights case dealing with another quarry. Two of the issues argued in this case related to the question of characterisation and the distinction between dominant and

incidental/subservient/ancillary uses. Other issues were also in contention in the case, but are not relevant to the present discussion on characterisation. In relation to these two issues, Kirby P held (with Meagher JA and Handley JA concurring on these aspects) at p 573– 576: “(A) Activity required to establish a ‘use’: Stein J was not satisfied that as at July 1946 the appellants’ land was used for the purpose of an extractive industry. He found as follows (in Steedman v Baulkham Hills Shire Council [No 4] (Stein J, 25 July 1991, unreported)): ‘There had been extractive sites in the 1930s and possibly into the 1940s but they had been abandoned. By the mid 1940s it is likely that occasional splitting of flagstone from floaters occurred at various places on the land. This was on a small scale and as the occasional order was placed. It was a meagre supplement to the family income. In my opinion it was of insufficient frequency to constitute a separate and independent use. The dominant use of the land at the time was undoubtedly orcharding or small farming. Incidental to this was the cutting of timber for sale for various purposes — firewood, bakers’ wood and fence posts. As another sideline, and particularly when the farm work was slack, occasional stone was cut from floaters and sold as orders arrived. These activities were small in scale and infrequent during the period 1945–1946. They were, in my opinion, insufficient to constitute a separate and distinct use of the land for the extraction of stone.’ His Honour continued: ‘My assessment of the evidence does not satisfy me that such limited extractive industry as was occurring at or about the relevant date was sufficient to constitute a separate and distinct use of the land. It is more logical to view it as a part of the overall utilisation of the land and, like timber getting, subsumed into the dominant use of orcharding or small farming, and a use which was incidental or ancillary to that

dominant use.’ It is important to note that Stein J based his decision upon the quantitative level of the use. His Honour did not hold that the type of activity undertaken was not able to be characterised as a use for the purpose of an extractive industry. With respect to his Honour, I believe there is force in the appellants’ submission that since he concerned himself with the question of whether the activity was incidental or independent he should be taken to have found there to be a ‘use’. In my opinion, the extracts from his [p 574] Honour’s reasons reveal that such a conclusion is available expressly as well as by inference. The Council concentrated its submissions on issue (B). It suggested that such activity of quarrying as Stein J found did occur could not properly be characterised as ‘use’ for the purpose of an extractive industry. This was particularly so, it was said, having regard to the fact that a use for splitting ‘floaters’ in 1946 was different in kind from the use for the crushing of sandstone to make brickies’ sand found to have been occurring in 1977. In my view this argument is misconceived. It is clear law that in cases such as this the decision-maker looks to the activity said to found the existing use in 1946. He or she then asks whether it can be said to be in the genus of extractive industry. If it can be so characterised, and a later use can also be so characterised, it is no objection that the uses are thought to be different on the basis of a narrow understanding of the type of use established: see North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (at 58–59) and the cases there cited. As I read the judgment of Stein J, his Honour found as a fact that there was sufficient extractive industry to constitute a ‘use’ of the land for the purpose of extractive industry both before 1946 and in 1977. This appeal therefore turns upon whether his Honour erred in holding that what use there was did not amount to a separate and independent use of the land such that it could not create existing use rights for the purposes of s 109 of the Environmental

Planning and Assessment Act 1979. The appellants pursued a line of argument that the evidence justified ‘stronger’ findings of fact than his Honour made. In particular, they argued that Stein J had placed an inappropriately heavy reliance on the evidence based on an aerial photograph taken in 1947. The Court was invited to re-assess the evidence within the parameters of the well-known principles stated in such cases as Abalos v Australian Postal Commission (1990) 171 CLR 167. Whether or not those issues are necessary for decision will depend upon the view which the Court takes of issue (B). (B) Dominant and ancillary uses: Stein J held that the ‘use’ of the land for extractive industry was ‘subsumed’ into and ‘incidental or ancillary’ to the ‘dominant’ use of orcharding or small farming. The appellants certainly accepted that there was a use of the land in 1945–1946 for orcharding. They further accepted that, if small farming included orcharding, a use for small farming was also established. But they insisted that the extractive industry (and also, for that matter, the timber getting) constituted an independent use of the land which had been established by the uncontested evidence which was adduced. Counsel for the Council effectively conceded that the occasional splitting of stone and slicing of floaters for sale to occasional purchasers could not properly be seen as subserving the use of orcharding. The former use could not be said to be subservient or ancillary to the latter, at least in the sense in which that concept has traditionally been understood. In Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd (Court of Appeal, 23 March 1990, unreported), the extraction of gravel from a mining site was held to be ancillary or subservient to the use of a mine. Most of the gravel extracted in that case was used for purposes such as surfacing roads to and from the [p 575] mine, stabilising boggy areas around the mine and erecting stoppings in mine shafts. That is, the use was for purposes which improved the coal mining venture. There was evidence of limited

and intermittent use of gravel for non-coal mine purposes. But that use had the character of a convenient avenue of disposal for unused gravel. Neither the trial judge in that case nor this Court thought that it constituted a separate and independent use of the land. The extraction of rock from floaters in this case had no such connection with orcharding. There was a vague suggestion that it had such a connection with the use of the land for small farming. However, it was not explained satisfactorily to my mind how this extractive activity was incidental to any use for small farming. The two activities are so distinct and separate as to deny connection. A more significant submission by the Council proposed a refinement of the meaning of ‘subservient’, ‘ancillary’ and ‘incidental’ in a context such as this. It was argued that, where an independent use gauged by the traditional or usual approach was of such a very limited nature and extent it could be disregarded. The submission devolves to the proposition that minor ‘uses’ may be ignored for the purposes of the Environmental Planning and Assessment Act 1979. It assumes that some uses are so limited, trivial or insignificant that it would not be promoting the purposes of the Environmental Planning and Assessment Act 1979 for ‘existing use rights’ to attach to them. Support for that position was said to be found in Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd. The Council submitted that that decision turned on the infrequency and limited scale of non-coal mine use of gravel rather than the ancillary nature of gravel extraction. It is enough to say that I do not accept that such an interpretation of Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd is reasonably open. The question is whether there is room for a principle that a minimal or trivial use is to be disregarded, and if so where the line between ‘use’ for the purpose of the Environmental Planning and Assessment Act 1979 and minimal use is to be drawn. It is the clear view of this Court that a minor use is not to be ignored simply because it is minor. In Foodbarn Pty Ltd v Solicitor-

General (1975) 32 LGRA 157, Glass JA said (at 161) that: ‘… it is immaterial that [one use] may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.’ One might add that it is immaterial that other contrasts of a similar nature might be drawn between the various uses of land. Merely because orcharding was carried out every day (assuming it was) and floaters were cut only occasionally, the conclusion cannot be drawn that the extractive use can be ignored: see also Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409; Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216–217. In Norman v Shire Council Gosford (1975) 132 CLR 83, the High Court found that the winning by hand and loading onto trucks of topsoil and filling on a small scale for twenty years, to a value in one particular year of only $46, was sufficient activity to constitute a ‘use’. On that basis, even if the principle of minimal use referred to is an appropriate one, it will not have any application in this case. The use here, although concededly minor, certainly existed, was real and was not merely ancillary to another ‘true’ use [p 576] of orcharding or small farming. In the words of Glass JA in Foodbarn, the fact that it was a use overshadowed by others did not make it less a use. The relativities were ‘immaterial’.” Conclusions The following conclusions can be derived from Steedman [No 2]: • Where a use has no connection at all with another use, that use cannot be incidental to the other use. Where the two activities are so separate and distinct there is unlikely to be any connection. • The fact that a use may be minimal or trivial is no basis for ignoring it as a use. There is no principle that a minimal or trivial use is to be disregarded under the EPA Act, supporting the view in Foodbarn that it is immaterial that one use may be overshadowed by another in terms of income generated, space

occupied or ratio of staff engaged.

¶21-190 University of Sydney v South Sydney City Council In University of Sydney v South Sydney City Council (1998) 97 LGERA 186, Sheahan J in the NSWLEC considered the characterisation of a teaching hospital. The University of Sydney owned land in Camperdown adjoining land owned by the Central Sydney Area Health Service on which Royal Prince Alfred Hospital (RPAH) is situated. The University land was generally zoned 5(a) Special Uses — Education, while the RPAH land was zoned 5(a) Special Uses — Hospital, together with part of the University Land. Macquarie International Health Clinic Incorporated Ltd was a company which owned and operated private hospitals. Macquarie had entered into an arrangement with the health service to lease a surplus carpark on the RPAH land to build a private hospital for which consent had been granted by the Council. The University had sought development consent to construct a private teaching hospital. This proposed development straddled the boundary between the University land and the RPAH land and straddled the zone boundary between Special Uses — Education and Special Uses — Hospital. The University’s hospital would be in competition with Macquarie’s Hospital, but the Macquarie Hospital would not be a teaching hospital. The Council refused the application on the grounds that it was prohibited. The University lodged a merits appeal and also commenced civil enforcement proceedings for a declaration that the development was permissible. In the Special Uses — Education zone, development for the purposes of education and matters ancillary and incidental thereto was permissible with consent, but development for the purposes of a hospital was prohibited. In the Special Uses — Hospital zone, development for the purposes of a hospital and matters ancillary and incidental thereto was permissible with consent, while development for the purposes of education was prohibited. The Council contended the proposal should be characterised as either development for the purposes of a hospital or an educational

establishment, or it has two separate and independent purposes of a hospital and an educational establishment, or finally, development for a hospital and an educational establishment where the two uses are inextricably mixed. Sheahan J held at p 214–215 as follows: “… most of the argument in the key cases, and in the submissions in this case, has revolved around finding a dichotomy between dominant and ancillary purposes, generally of projects existing in, or proposed for, only one zone, and generally in circumstances where uses are severable and quite different. I can find no authority directly ‘on point’ with the factual situation in this case, where a single proposed multipurpose building straddles two zones, in which, at least on a prima facie basis, at least one part of its mixed purposes may infringe the zoning prohibition. In this case as the proposal involves elements of both ‘hospital’ and ‘education’, it is very difficult to come to a decision that either purpose is dominant, even if the Court found that such an analysis were relevant and appropriate in this fact situation. The facts of this case can be distinguished from those of virtually all the cases I have examined, and I will approach the task in the way adopted by the High Court and the Court of Appeal. What is required is not ‘precise cataloguing’ (Kitto J in O’Keefe), but a ‘detailed examination of the facts’ to construe the purpose ‘broadly’ and ‘liberally’ without ‘confining the user to precise activity’ in the town planning context (Kirby P in Boyts Radio). The Court must examine the ‘character, extent and other features’ of the proposal (O’Donnell) and determine its ‘appropriate genus’ (Kirby P in Boyts Radio and Steedman) and whether other aspects of the proposal might best and/or fairly be regarded as species of that genus (Pryor Park). The law does not require me to ‘force fit’ the proposal into any of the models defined in Foodbarn, O’Donnell or Pryor Park. Questions of fact and degree are ‘inescapably involved’ and

characterisations will always be ‘partly impressionistic’ (Penrith). Where more than one use is involved in a proposal the primary consideration is the relationship between/among them, beyond their shared use of the subject site (Blakemore). On the evidence in this matter I characterise the ‘use’ in the University’s proposal as ‘teaching hospital’. In so far as that is a species of the genus ‘hospital’, and/or in so far as the education use may be said to be ‘ancillary’ to the hospital use, the proposal is clearly permissible in that part of the 5(a) zone which is ‘hospital’ (even though par (b) of the definition imported into the LEP does not, in terms, require it to be ‘ancillary’). [p 215] However, this proposal in its entirety cannot simply fit into simplistic definitions of ‘hospital use’ and/or ‘education use’, nor into the genus/species approach most overtly used in Pryor Park. Here the twin/dual functions of delivering clinical education to medical students and delivering health care services to patients, public or private, are not relevantly severable, in the way that extraction works are severable from agriculture, orcharding, riding schools, etc (CB Investments, Steedman, and O’Donnell). Foodbarn and Steedman make it clear that the Court should not characterise the proposal simply on some comparative analysis of income, space or staffing. Also like Bignold J in Pryor Park, I want to resist an absurd result, and to take an overly ‘specific’ approach, along the lines urged upon me by Mr Spigelman (despite authority to the contrary), will bring one. It is certainly possible, and sometimes even desirable, according to the unchallenged evidence in this case, for the proposed teaching hospital to deliver patient services but suspend student services, when either an emergency situation demands it or a patient withholds consent.

However, on Professor Young’s uncontradicted evidence it is neither possible nor desirable to provide adequate training to health professionals without exposing them to ‘real’ patients in a ‘clinical’ setting. The University wants not just a hospital but a ‘state-of-the-art’ teaching hospital. Its use is inextricably part of the education function performed by the University in the relevant medical faculty precinct within the education zone. It cannot be severed, or seen as ‘independent’, so as to become impermissible within that zone under the test laid down by O’Donnell. I, therefore, have come to the conclusion that the University is correct in submitting that its proposal can and does comply simultaneously with all the requirements of the special use zone in LEP 66.” There is no doubt that the factual circumstances examined by Sheahan J in this case were novel. He characterised the use as being for ‘teaching hospital’ where the twin roles of providing clinical education and health care services were inextricably linked and incapable of being severed. As such its purpose was both a hospital and an education establishment. Importantly, Sheahan J did not find there were two purposes being undertaken, but rather he found there was one purpose which met the requirements of two of the categories of purposes in the EPI, both hospital and education. As there was only one purpose, it was not capable of analysis using the genus/species approach in Royal Agricultural Society v Sydney City Council, or the dual purposes approach in C.B. Investments Pty Ltd v Colo Shire Council, or the ancillary and incidental and hence, subsumed approach in Foodbarn.

¶21-200 Macquarie International Health Clinic Pty Ltd v University of Sydney In the appeal from the decision of Sheahan J to the NSW Court of

Appeal in Macquarie International Health, the leading judgment in the NSW Court of Appeal was given by Stein JA with whom Mason P and Meagher JA concurred. Stein JA held at p 221–224: “The judgment of first instance An important starting point for consideration is the proper characterisation of the use. His Honour the trial judge characterised the proposal of the University as ‘a teaching hospital’ (appeal book at 62K). This finding of fact is unchallenged. The use was clearly permissible in the hospital zone. Turning to the education zone, Sheahan J said that the proposal ‘in its entirety cannot simply fit into simplistic definitions of ‘hospital use’ and/or ‘education use’’. He added (appeal book at 62S–V): ‘Here the twin/dual functions of delivering clinical education to medical students and delivering health care services to patients, public or private, are not relevantly severable, in the way that extraction works are severable from agriculture, orcharding, riding schools, etc.’ It is apparent that his Honour meant dual ‘purposes’ rather than ‘function’. Sheahan J found that the hospital use was ‘inextricably part of the education function performed by the University in the relevant medical faculty precinct within the education zone’. The hospital use could not be severed or be seen as an independent use so as to be impermissible in the education zone. The court concluded that the proposed teaching hospital was permissible in the education zone. Accordingly, the trial judge did not proceed to consider the alternative argument that the teaching hospital was ancillary to the education use and permissible on that basis. It is convenient to set to one side a number of submissions made on behalf of the appellant which, I think, ought to be rejected. It was submitted that, to the extent that his Honour applied the University’s subjective motivations for the proposal, he erred since this is irrelevant to the characterisation of the proposal for planning purposes. It is true that the test is an objective one: see

Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; 73 LGRA 379 at 382; per Gleeson CJ at 714, 716; 383–384 and Kirby P (at 728; 395–396). However, a fair reading or Sheahan J’s judgment does not lead to the conclusion that his Honour relied on the subjective motivations of the University. His Honour’s reference to what ‘the University wants’ must be seen in the context of his extensive examination of the evidence. In my opinion, it cannot be said that his Honour’s ultimate conclusion rested upon his acceptance of the subjective motivations of the University. … [p 222] … Mutual exclusivity and dual uses The NSWLEC categorised the University’s development application as one seeking consent to a teaching hospital. Having regard to its character, extent and other features, it was a development for one use only (that of a teaching hospital). This use could not be severed into two independent uses or seen as a dominant and subservient use. The appellant submits that the local environmental plan provides that X is permitted in one zone and Y is prohibited. In the adjacent zone, Y is permitted and X is prohibited. Unless X = Y, a single development cannot straddle both zones, so it is submitted. Accepting his Honour’s unchallenged categorisation of the use as a teaching hospital, it follows that it must be for the purpose of either a ‘hospital’ or ‘education’ but cannot be for both purposes. That is, that the two purposes are mutually exclusive. This submission was rejected by Sheahan J in a finding of fact that the proposed teaching hospital could and would serve both functions, that it could and would be a hospital for an education purpose. His Honour found that a teaching hospital, by its very nature involves the imparting of knowledge and skills by teachers and its acquisition by students through systematic instruction and

training in a clinical setting. I reject the mutual exclusivity submission. It does not follow automatically from the appellant’s argument. The purpose of the use in question is a teaching hospital. That one purpose may be education does not mean that it must be the only purpose. There can be other purposes, such as here. The nature of imparting practical medical education means that real patients are needed in a hospital setting. As Sheahan J found, the use involved two purposes which were inextricably bound up so as to be properly categorised as a teaching hospital, and not as two independent uses — a hospital and education. While one could, and often does, have a hospital without education, one cannot have medical education without the hospital in a teaching setting. A teaching hospital is necessarily a mixed purpose which cannot be severed. The two purposes are inextricably linked and cannot be severed. Although this finding of his Honour is challenged, it was clearly one open on the evidence. In my opinion, there is but one use as a teaching hospital, with two purposes as its end. These, by their very nature, cannot be severed into two independent uses. In Royal Agricultural Society (NSW) v Sydney County Council (1987) 61 LGRA 305 at 310–311 McHugh JA (as he then was) discussed the test of categorisation. After referring to Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, O’Keefe (at 535) per Kitto J and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, his Honour noted that they dealt with activities of a common kind. He considered, however, that the principle was also applicable where land was used for activities of widely differing kinds. McHugh JA said: [p 223] ‘If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for

more than one purpose.’ I accept the submission of Mr Tobias of senior counsel on behalf of the University that cases such as Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409–410 are inapplicable to the present case. These cases involved two distinct uses whereas this appeal involves a development for one use only, that is, a teaching hospital. Since the purposes of the use are inextricably bound up, they cannot be severed. Applying McHugh JA in the Showgrounds case, it is my opinion that the proposal for a teaching hospital contained in the development application is permissible in both zones. It is not made impermissible in the education zone by reason of the fact that a teaching hospital includes another purpose, that of a hospital, in addition to education. The use of a building for the purpose of providing systematic training and instruction for students in the clinical environment of a hospital is, I believe, an educational purpose. It follows that Sheahan J was correct and the appeal should be dismissed. Nonetheless, I turn to the alternative argument of the University that the development of a teaching hospital is also a use for the purpose of a hospital which is ancillary or incidental to the education use within the University and its medical precinct. Ancillary use? The alternative submission arises from the express words in item 3 of the land-use Table in the local environmental plan. Put simply, Mr Larkin submits, on behalf of the appellant, that the hospital use cannot be seen as ancillary to the education use in the education zone. That there are twin or dual purposes of delivering clinical education to students and delivering health care to patients (as his Honour held) runs contrary to the hospital use being ancillary to the education use. An examination of the proposal and the plans is said to make it apparent that the major use of the building is as a hospital. Such a use, when compared to the relatively minor education one, cannot be found to be ancillary or incidental to the latter use. It is submitted that, in the

context of the Table, ‘ancillary’ means ‘subservient’. However, an ancillary use does not necessarily need to be a subordinate or subservient one. It may be more than a minor use. It seems to me that an ancillary or incidental use is not capable of being reduced to a mathematical formula. It may also be noted that among the relevant dictionary meanings of ancillary are ‘auxiliary’ and ‘accessory’. In assessing whether the hospital use is ancillary to the education use, two matters should be noted. First, the education zone extends far beyond the subject land right through the University campus. In particular, the proposed site is part of the medical precinct. Closely connected and integrated into the proposed teaching hospital is the Blackburn Building, which houses the faculty of medicine. The new teaching hospital will become part of the medical precinct of the University and physically joined to the Blackburn Building. It will house the faculty of medicine library. Secondly, the appellant concedes, correctly in my view, that in considering the issue it is permissible to examine the education use in the adjacent medical faculty. If there is a separate hospital use, it appears to be open on the evidence to [p 224] conclude that it is one which is ancillary or auxiliary to the education use, not only in the proposed building, but ancillary to the education functions in the contiguous medical precinct. In particular, it supports the medical education functions being carried on in the adjoining Blackburn Building in the education zone. This conclusion accords with the findings of fact in the court below, findings I should add, which were well open on the evidence. It matters not if the hospital use is an independent use to the education use since the proviso to item 3 of the land-use Table makes clear that an independent use that is ancillary is

permissible. In O’Donnell, Meagher JA observed that a use which is ancillary to another use is not precluded from being an independent use. He gives the example of a book publisher opening a sales room at its publishing house (at 410). The sale of books is an independent use although ancillary to the use of publishing. The distinction in this case is that the independent ancillary use is permissible under the land-use Table where as in O’Donnell, it was prohibited. Although every case of categorisation must be decided on its own facts, a recent decision in the court may provide some illumination. One of the issues in Londish v Knox Grammar School (1997) 97 LGERA 1 was whether a proposed student residence was ancillary to a school, an education establishment. The residence was locationally separate from the main school campus and no formal teaching took place in the residence. On the particular facts before the court, I concluded that the school residential boarding facility was ancillary to the educational establishment.” Conclusions The following conclusions may be derived from the NSW Court of Appeal’s judgment in Macquarie International Health: • The question of an applicant’s intentions or subjective motivations for a proposal are irrelevant to the characterisation of a development. The test is purely objective. In this case, Stein JA followed Woollahra v Minister. This is contrary to the views expressed by Reynolds JA in C.B. Investments Pty Ltd v Colo Shire Council discussed earlier, but consistent with Kitto J’s decision in Shire of Perth v O’Keefe. • A review of previous decisions on characterisation is only relevant to extract the legal principles from them, and is not relevant to compare factual situations. • A proposed development may comprise an inextricable mixture of two of the categories of purposes in an EPI which are incapable of severance and which therefore do not constitute two separate

and independent uses. The categories of purposes in an EPI are not necessarily mutually exclusive.

¶21-210 Confusion over terms “purpose” and “ancillary” Two of the potentially confusing aspects of the discussion on characterisation in Macquarie International Health and some of the other cases cited therein relate to the multiple uses of the terms “purpose” and “ancillary”. “Purpose” is used in the following meanings: • a category of purpose of development in an EPI into which a proposed activity should be placed • a category of purpose into which an activity should be placed to identify the scope of protection afforded by existing use rights provisions, and • the purpose of a particular proposed activity, which is then used to characterise that activity against categories either within an EPI or for establishing the extent of existing use right protection. Stein JA uses the word “purpose” interchangeably to refer to all three. It may assist in avoiding potential confusion if the third category is not referred to as a “purpose” but instead to the character, extent, and other features of a proposed activity, to use the formulation of Hope JA in C.B. Investments Pty Ltd v Colo Shire Council. Similarly, “ancillary” is used by Stein JA and also in Baulkham Hills v O’Donnell, Londish and Macquarie International Health as meaning smaller or subsidiary or related to another activity, but where a further step is required to determine whether an ancillary activity is subsumed within another activity, such as to be ignored for the purposes of characterisation, or whether the ancillary activity is a separate and independent activity and hence, potentially characterised as being for a separate purpose. In other instances, “ancillary” is used to mean that an activity so described is automatically subsumed within the activity to which it is ancillary, eg Glass JA in Foodbarn and in Twibill.

¶21-220 Friends of Pryor Park Incorporated v Ryde Council and Sydney Montessori Society Incorporated In Friends of Pryor Park Incorporated v Ryde Council and Sydney Montessori Society Incorporated (unreported decision of Bignold J in the NSWLEC, 40100 of 1995, 25 September 1995) (Friends of Pryor Park), Bignold J considered a challenge to the validity of a development consent granted by the Council for refurbishment and alterations and extensions to an existing scout hall in Pryor Park, a public reserve, at East Ryde to be used for a child care centre. Under the Ryde Planning Scheme Ordinance (Ryde PSO) in the applicable Open Space — Recreation Existing zone, development for the purposes of community facilities and some other purposes were permissible with consent, while the prohibited category comprised the residual innominate purposes. The Ryde PSO contained definitions of a child care centre and community facilities as follows: “‘Child Care Centre’: means a building or place used as a child care centre within the meaning of Pt 7 of the Child Welfare Act 1939.” “‘Community facilities’ means an area used to provide facilities for activities which promote the physical, cultural or intellectual welfare of persons within the community, being facilities provided by — (a) a Council; or (b) a body of persons associated together for the purposes of the physical, cultural or intellectual welfare of persons within the community.” The parties agreed the proposed development fell within the definition of both child care centre and community facilities. Bignold J held as follows: “The Applicant argues that the fact that the approved development falls within the definition of ‘child care centre’ produces the legal result that the development is for a ‘prohibited’

purpose and that in consequence, development consent for the ‘permissible’ purpose of ‘community facilities’, as was granted in the present case, cannot be legally granted. The foundation for this argument is the proposition, claimed to be supported by the majority judgments in C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 that where a proposed development may fairly and properly be classified as falling within two defined purposes (one permissible and the other prohibited) it cannot legally be permitted. The Respondents’ competing argument is that where, as in the present case, the proposed development falls within the permissible purpose of ‘community facilities’, development consent may legally be granted to the proposed development for that purpose, and the fact that the development also falls within another ‘purpose’ namely ‘child care centre’ is legally irrelevant to the validity of the development consent granted for the permissible purpose. In my judgment the Respondents’ argument is correct and is clearly to be preferred to the Applicant’s competing argument. In so concluding I consider that the solution to the present dispute is to be entirely found in the proper statutory interpretation of the relevant provisions of the Ryde PSO and in particular cl 22. Properly construed, cl 22 of the Ryde PSO stipulates that ‘community facilities’ is a permissible purpose of development. Accordingly, development consent for that purpose may legally be granted. That is what the First Respondent did in the present case. The fact that the approved development also falls within the definition of ‘child care centre’ does not affect (i) the legal effect of cl 22 stipulating ‘community facilities’ as a permissible purpose, and (ii) the competence and capacity for the First Respondent to grant development consent for that permissible purpose. This conclusion flows from the proper interpretation of cl 22 of the Ryde PSO because the category of prohibited ‘purposes’ (formulated in the Land Use Table as any purpose other than those referred to in Column II or IV) necessarily does not, and

cannot, include the purpose ‘community facilities’ referred to in Column IV of the Table. This construction is consistent with the construction adopted by Mahoney JA of a similarly worded ‘Land Use Table’ in Egan v Hawkesbury City Council (1993) 79 LGERA 325 at 328. So construed cl 22 of the Ryde PSO does not create the dilemma of a proposed development being regarded (equally properly and reasonably) as falling within a permissible purpose on the one hand and a prohibited purpose on the other. Were the result otherwise then the interpreter of cl 22 of the Ryde PSO would be confronted with what Mahoney JA in C B Investments described as ‘nice questions of construction’. However whereas the dual purposes in that case were very different (in nature and quality) one from the other (agriculture on the one hand and an extractive industry in the other) here the dual categories are by no means disparate, since it is obvious (and I understood the Applicant to so concede) that the purpose ‘child care centre’ is a species of the genus ‘community facilities’. Accordingly, the task of statutory construction, assuming there were such a conflict to be resolved, would be far less complicated in the present case than it would have been (or, was) in C B Investments. As I have earlier mentioned the Applicant’s argument relies heavily upon the majority judgments in C B Investments and upon the suggested general proposition of planning law (claimed to be supported by the majority judgments) that if a proposed development fell within two categories of purposes (one permissible and the other prohibited) the prohibited purpose prevails so as to render the proposal not capable of being the subject of a valid development consent. In my judgment this proposition is unsound, and is not supported by the majority judgments in C B Investments. … … In short the conclusion in C B Investments that the Council could not grant consent to the application, is based upon the express terms of the planning instrument which relevantly

permitted the development if it were ‘only for the purposes of agriculture’. Accordingly, and as may reasonably be expected, the majority judgments in C B Investments do not support any general principle of planning law concerning the legal consequences of any dual classification of a proposed development. Rather they reflect the legal results of the proper (and uncontested) statutory interpretation of the terms of the relevant planning instrument controlling development in that case. Since the present case depends upon the proper construction of cl 22 of the Ryde PSO the decision in C B Investments (based upon a different planning instrument) provides limited (if any) assistance, to the present task of construing cl 22 of the Ryde PSO. Even if C B Investments were to be regarded as possessing a somewhat greater influence to be exerted on the present case, it is difficult to see how it could ultimately affect the outcome because here the dual purposes are ever so closely aligned (as I have held, it is properly conceded that a ‘child care centre’ is a species of the genus ‘community facilities’) whereas in C B Investments the dual purposes were disparate. In my judgment, this very significant distinction is sufficient, of itself, to distinguish C B Investments from the present case. Indeed once it is acknowledged that ‘child care centre’ (as a purpose) is a species of the genus ‘community facilities’ (the latter being a permissible purpose) it would be an extraordinary result to conclude that although the genus is a permissible purpose one of its species is nonetheless a prohibited purpose. Such a conclusion would do extreme and unjustified ‘violence to the logical structure of the definition’ (of ‘community facilities’) cf Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161. Moreover such an interpretation of cl 22 of the Ryde PSO would be so unreasonable as to require its unqualified rejection. The far more obvious and reasonable construction of cl 22 of the Ryde PSO is to give full effect to the stipulation that ‘community facilities’ is a permissible purpose and that that purpose

constitutes a genus of which a ‘child care centre’ is an obvious species. This result is consistent with the approach adopted by the majority of the NSW Court of Appeal in Egan v Hawkesbury City Council (1993) 79 LGERA 321 where it was held that the prohibited purpose ‘industry’, as defined, included the defined purpose ‘extractive industry’, the majority holding that no justification had been shown for a departure from the literal meaning of the defined term ‘industry’. Although not directly applicable to the task of statutory construction raised by the present case, I would only say by way of comparison with Egan, that there is far less justification for departing from the meaning of ‘community facilities’ (so as to exclude ‘child care centre’ as the Applicant’s argument would have it) since here the purpose constituting the genus is the permissible purpose of development introduced into the Ryde PSO by later amendment. … For all the foregoing reasons, the Applicant’s challenge to the validity of the development consent granted by the First Respondent to the Second Respondent fails, and the application must accordingly be dismissed.” Importance of a proper statutory interpretation In Friends of Pryor Park, Bignold J emphasised the importance of a proper statutory interpretation of the provisions of the relevant EPI in the process of characterisation for permissibility when dealing with potential dual purposes of development in circumstances as follows: (1) Genus/Species Approach: The purposes of development in an EPI may not be mutually exclusive, but one purpose may in fact be a subset of another, or a species of the broader genus. This was the case in Friends of Pryor Park where the species of child care centre was part of the broader genus of community facilities, and the EPI made the genus permissible and other purposes prohibited. The same circumstances applied in Egan v Hawkesbury City Council (1993) 79 LGERA 321 (Egan) where

the species of extractive industry comprised part of the genus of industry and development for the purposes of industry was a nominate prohibited development. (2) Dual Purposes Approach: A development proposal may fall into two purposes of development under an EPI and be inextricably linked and incapable of severance. In these circumstances, there is but one development proposal and not two separate and independent purposes. But the one development proposal has dual purposes. In such circumstances, the construction of the applicable EPI can lead to different outcomes. Thus, in Macquarie International Health the development proposal had a dual character inextricably linked. The EPI in question provided in the two zones that were covered by the proposal that hospital and matters ancillary (related) were permissible in one zone while education and matters ancillary (related) were permissible in the other zone. The result was that the development proposal comprising the dual inextricably linked purposes was permissible in both zones. In contrast is the circumstance referred to by Hope JA in C.B. Investments Pty Ltd v Colo Shire Council of a development proposal for dual purposes of agriculture and extractive industry, where in the one zone one purpose was permissible and the other prohibited, resulting in the proposal being prohibited.

¶21-230 Warringah Shire Council v Raffles In Warringah Shire Council v Raffles (1978) 38 LGRA 306, Waddell J in the Supreme Court of NSW (Equity Division) considered an application for an injunction by Council against Dr Raffles to restrain the use of land for the landing and taking off of a helicopter. The land at Ingleside comprised the residence of Dr Raffles. It was zoned NonUrban (a) under the Shire of Warringah Planning Scheme Ordinance (Warringah PSO). In that zone, development for the purposes of a country dwelling was permissible without consent. Dr Raffles was a radiologist who used a helicopter to travel to and from his practices at Richmond and Liverpool. Dr Raffles claimed the use of the land for the

landing of a helicopter was, for the purposes of the Warringah PSO, a use for the purposes of a dwelling house as the helicopter is Dr Raffles’s means of transport. Waddell J held at p 310: “The distinction between the ‘purpose’ for which land is said to be use for the application of planning scheme restrictions and the nature of the use made of it, referred to above, is well established by decisions of the courts. In my opinion it does not depend upon any question of whether the use made is novel or upon its town planning consequences. Where land is used for the purpose of a dwellinghouse the use of some part of that land for some means of private transport seems to me necessarily to be use of the land for the purpose of a dwellinghouse. The very idea of a dwellinghouse presupposes that the occupants may have some means of private transport kept at hand to travel from the dwellinghouse to their places of work, shops, social occasions, and other places. In the present case I do not see any reason to treat the use by Dr Raffles of a helicopter as being, for the purpose of the application of the planning scheme ordinance, different in principle to the use by him of a motor car to travel to his various places of practice and to social occasions. It should be regarded as a use of the land for the purpose of the dwellinghouse on the land. Accordingly, the consent of the Council to the use is not required.” This is an example of a decision where the landing of a helicopter was not a separate purpose of development but an integral part of development for the purposes of a dwelling house.

¶21-240 Westpoint Corp Pty Ltd v Rockdale City Council In Westpoint Corp Pty Ltd v Rockdale City Council [2000] NSWLEC 148 (Westpoint), Bignold J in the NSWLEC heard a question of law raised in a merit appeal about whether the proposed development was prohibited by the applicable LEP. In this case, Bignold J noted at paragraph [16]: “16. Ultimately however (as I held in Friends of Pryor Park Inc v Ryde Council (unreported 25 September 1995), a case involving

a proposed development that was capable of being categorised as falling within two defined purposes — one permissible and the other prohibited), the solution to a dispute such as that raised in the present case, is to be entirely found in the proper statutory interpretation of the relevant provisions of the LEP.” In addition, Bignold J addressed the issue of the appropriate terminology to be used in the characterisation process. He said at paragraphs [18] and [19]: “18. In posing these questions, I am content to adopt the Applicant’s categorisation of the proposed development as ‘mixed use development’ as defined by the LEP. This reflects the description given to the proposed development by the Applicant’s development application and supporting materials. 19. Description of a proposed development, and categorisation of it, are not necessarily co-extensive. Categorisation of a proposed development conventionally is undertaken by reference to defined terms or purposes in the relevant environmental planning instrument principally to determine whether the proposed development is for a permissible purpose. Unless a proposed development is shown to be for a permissible purpose of development, it is axiomatic that a valid development consent cannot in law be granted to that application. Hence, the raising by the Council of the question of law in the present case.”

¶21-250 Drake & Ors; Auburn Council v Minister for Planning; Collex Pty Ltd However, in Drake & Ors; Auburn Council v Minister for Planning; Collex Pty Ltd [2003] NSWLEC 270, Bignold J described what he called “categorisation” in Westpoint as “planning classification” (see paragraphs [34]–[36]).

¶21-260 Marscon Pty Ltd v Holroyd City Council In Marscon Pty Ltd v Holroyd City Council [2003] NSWLEC 22

(Marscon), Bignold J in the NSWLEC considered a question of law raised in a merit appeal as to whether a proposed development was prohibited by the applicable EPI, the Holroyd LEP 1991. The proposed development was a five-storey mixed residential and commercial building at Wentworthville. The subject land was zoned business General Zone 3(a). The LEP contained nominate prohibited purposes of development while the permissible purposes were innominate and residual. Both parties agreed the proposed development was not for a nominate prohibited purpose. However, Council argued that the innominate permissible purposes were confined only to purposes of development identified and recognised by the LEP. Bignold J held at paragraphs [19]–[31]: “19. The Council’s competing argument is that the word ‘purpose’ for contextual and purposive reasons should be construed more narrowly to mean only ‘planning purpose of development that is identified in, or recognised by, the LEP’. 20. In other words, the Council’s argument is that the word ‘purpose’ should be interpreted to be limited to any of the definitions of the various categories of development that are employed by the LEP. Since it is common ground that the residential component comprising four separate floor levels of the proposed development does not fall within the definition of ‘residential flat building’ or any other category of residential development defined by the LEP it follows, if the Council’s interpretation of the relevant expression ‘any purpose other than …’ be adopted, that the proposed development does not constitute development for ‘any other purpose’ within the meaning of cl 9(2)(b) of the LEP. 21. As I pointed out during the course of argument, the manner that the LEP formulates development controls by reference to ‘the purposes for which development may or may not be carried out’ in the various zones created by the LEP reflects conventional town planning practice for the past 50 years. The County of Cumberland Planning Scheme which came into force in 1951 formulated controls on the erection and use of buildings and the use of land by reference to specified ‘purposes’: vide cll 26 and

29. … [Bignold J quotes extracts of Baker and Kitto J in Shire of Perth v O’Keefe, previously cited] 24. I have referred to these long standing decisions and to the fact that the LEP is entirely conventional in the manner that it imposes controls on development within the various zones it created to emphasise the novelty of the Council’s argument. That feature of itself, of course does not diminish the argument, but it is significant that in more than 50 years experience with similar planning controls, it has never been held that the innominate purposes of development (ie purposes that are expressed, as in the present case, by way of the expression ‘any purpose other than a nominated purpose of prohibited development’) are confined to those purposes which are embraced by the defined categories of development, but no other. 25. The extract quoted from Baker indicates the relationship between the term ‘the purposes of’ and the definitions of various types of development employed by the planning instrument. But it has never been held that the defined types of classes of development employed in town planning instruments from the time that the County of Cumberland Planning Scheme came into force in 1951 provided or were intended to provide an exhaustive or closed list of the purposes for which ‘buildings may or may not be erected or used or land used’ (in the case of the County Scheme) or for which ‘development may or may not be carried out’ (in the case of the LEP and other environmental planning instruments made in pursuance of the EPA Act. A moment’s reflection suggests that the maker of an environmental planning instrument operating like the LEP to impose development controls throughout an entire local government area by reference to designated zones, would hardly conceive of even the possibility of attempting to provide exhaustive definitions of every conceivable or possible form of development that may be carried out. 26. The mind boggles when confronted by the idea of the imposition of development controls on the basis of an exhaustive

and closed system of definitions of the purposes of development. Indeed, experience has long shown the great utility of employing the concept of the ‘innominate’ category of purposes of development, either for specifying permissible or prohibited purposes of development. The LEP employs that concept in imposing the various development controls by virtue of the operation of cl 9 as I have earlier indicated. 27. The decided cases have addressed a different, though related, question, namely the meaning to be given to the purpose of an ‘existing use’ in the context of a planning instrument that imposes prohibitory controls on the carrying out of development by reference to defined purposes. 28. That was the key question that arose in O’Keefe where it was held that the proper particularisation of the purpose of an ‘existing use’ did not require or depend upon the application of the defined purposes of development (ie defined for the purpose of imposing controls on development) but rather was to be concluded ‘by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date’: per Kitto J at 535. 29. In my judgment, there is no justification for reading down the innominate ‘any purpose’ (other than a nominated purpose prohibited development) appearing in the Table to cl 9 of the LEP so that it means only a purpose that is defined or recognised by the LEP. Properly construed, the innominate ‘any purpose’ (other than a nominated purpose of prohibited development) in the context of cl 9(2)(b) specifying ‘the purposes for which development may be carried out in Zone No 3(a) only with development consent’ is the object or end to which the development is carried out. This understanding of the meaning of the expression ‘purpose’ reflecting the ordinary and natural meaning of the word accords with the judicial decisions in respect of the same or similar statutory planning controls operating under town planning delegated legislation for the past 50 years in NSW. 30. In rejecting the Council’s interpretation of the expression ‘any

purpose’ (other than a nominated purpose of prohibited development) I should in passing note what would have been the extraordinary consequence in the present case if the Council’s interpretation had been adopted. The consequence would have been that the proposed development (or at least the residential component thereof comprising four of the five floor levels above the two levels of basement carparking) would be neither prohibited development (as conceded by the Council’s argument) nor development that may be carried out only with development consent. Accordingly, neither s 76B nor s 76A of the EPA Act would apply to the development with the consequence that the development would stand beyond the reach or ambit of the EPA Act (not only in terms of the controls on development imposed by Part 4 but also in terms of the operation of Part 5). 31. In other words, the Council’s argument would produce the unintended result of the residential component of the development being simply untouched by the operation of the EPA Act.” Conclusion The following conclusion can be derived from Marscon: • Where a Land Use Table provides for innominate purposes in one of the categories of permissible or prohibited development, those innominate purposes are not confined to purposes specified or defined in the relevant EPI but apply to any other purpose.

¶21-270 Argyropoulos v Canterbury Municipal Council In Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 (Argyropoulos), Cripps CJ in the NSWLEC considered an application for a declaration that a development proposal was permissible. The land in question was a battle-axe shaped block of land at Croydon Park. The handle of the block was zoned Residential 2(c2) in which development for the purposes of light industry was an innominate prohibited use. The head of the battle-axe block was zoned Light Industrial 4(b) in which development for the purposes of light industry

was an innominate permissible use with consent. A DA was lodged for storage of formwork material on the land zoned light industrial and the access to it over the handle zoned residential. The applicant argued that the application to use the handle was development for the purposes of a road, a nominate permissible use in the residential zone. Council argued that the access handle was part of development for the purposes of light industry and not development for the purposes of a road. Cripps CJ said at p 206–208: “Mr Schofield has finally submitted that upon the assumed facts of the present case, it is not proposed that the handle of the battleaxe relevantly be used for the purpose of a road. Rather, he submits, it is intended that it will be used for the purpose of the innominate light industrial use, viz the storage of formwork materials. Thus, it is submitted, that because the access or ‘road’ is intended to serve the light industrial use, the land use for which consent is sought ought be characterised as being a use for the purpose of the storage of formwork material and not as a ‘road’. … [p 207] … The application of Sugerman J’s reasoning [in Scott’s Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 at 194–195] to the instant case leads me to the conclusion that permission may be granted for the use of the land as a ‘road’ notwithstanding that the vehicles will proceed to and leave from land zoned light industrial. I do not think that the innominate prohibited light industrial use excludes, in the present case, the nominate permissible use. It is true that the road will serve an area of land zoned light industrial but that circumstance does not give it a separate ‘light industrial’ purpose or, perhaps more precisely, a ‘formwork and materials storage’ purpose within the meaning of the Canterbury Planning Scheme Ordinance. In my opinion, a ‘road’ use is contemplated by the scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a ‘road’ which is

a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land. … [p 208] … In my opinion, the Canterbury Planning Scheme Ordinance, upon its proper construction does not require a council when determining an application for use of land in the residential zone as a ‘road’ to conclude that if the users of that road are proceeding to or from land zoned and used as light industrial, there is such a nexus between the use of the residential land and the use of the light industry land that the council has no power to grant its consent to the application. As I have said, the proposed manner of use of the road will, undoubtedly, be germane to the council’s consideration of the application but, upon the assumed facts in the instant case it would not, as a matter of law, require the council to reject it. Accordingly, I am of the opinion that the declarations ought to be made to the effect that upon the assumption I am required to make, namely, that development consent is being sought for permission to use part of the land in certificate of title, vol 7761, fol, lot 81, zoned residential 2(c) for the purpose of a ‘road’, the council is not precluded as a matter of law from granting the application notwithstanding that the users of the road will proceed to and from land used in the light industrial zone for the purpose of the storage of formwork material.” In the light of the NSW Court of Appeal decision in Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323 (Chase) (discussed later), Argyropoulos falls appropriately within the principles of characterisation (note the decision in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 where Preston CJ distinguished

Argyropoulos for circumstances relating to the entry and exit driveways of a building, a pedestrian ramp, pedestrian circulation paths, part of a basement carpark and a passive recreation area which were integral and indivisible parts of a building).

¶21-280 Drake & Ors; Auburn Council v Minister for Planning; Collex Pty Ltd In Drake & Ors; Auburn Council v Minister for Planning; Collex Pty Ltd [2003] NSWLEC 270 (Drake), Bignold J in the NSWLEC considered an objector’s merit appeal against the grant of development consent by the Minister. The development consent characterised the development as a “freight transport terminal”, a nominate permissible use with consent under the applicable LEP. The objectors submitted the development properly characterised was not a freight transport terminal but for some innominate prohibited use such as a waste transfer station or as an offensive waste storage establishment or an offensive industry. The central issue was that the definition of a freight transport terminal in the LEP required the handling of “goods”, raising the issue as to whether waste was “goods”. Ultimately, Bignold J held that waste was not “goods” and hence, the development was prohibited. Bignold J held at paragraphs [58]–[63], [68] and [74]–[78] as follows: “58. The task of characterising or classifying a development for planning purposes is a familiar, yet often difficult task. As I noted in Westpoint Corporation Pty Ltd v Rockdale City Council (2000) 109 LGERA 398 at 403: ‘Categorisation of a proposed development conventionally is undertaken by reference to defined terms or purposes in the relevant environmental planning instrument principally to determine whether the proposed development is for a permissible purpose. Unless a proposed development is shown to be for a permissible purpose of development, it is axiomatic that a valid development consent cannot in law be granted to that application.’

59. This is the approach that appears to have been adopted in the present case, where the only possible permissible purpose of development for which the proposal may be characterised is ‘freight transport terminal’ (The other possible permissible purpose suggested by the EIS was ‘depot’ but that definition clearly does not encompass the proposal). 60. Thus, the crucial question is whether the proposal ‘truly’ falls within the ambit of the permissible purpose ‘freight transport depot’. If it does, it is wholly irrelevant to go further to enquire whether it is also properly categorised as some other purpose of development: cf Doyle v Newcastle City Council (1990) 71 LGERA 55; Crosland v North Sydney Council (2000) 109 LGERA 244 and Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275. 61. This last-mentioned conclusion directly flows from the manner in which the LEP imposes controls on the carrying out of development in the various zones. To that extent, the conclusion is founded upon the statutory construction of the relevant provisions which does not accommodate or countenance the proposition that a proposed development may have a ‘double characterisation’ (one for a permissible purpose and the other for a prohibited purpose) such as was suggested in the judgment of Hope JA in C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271/272. 62. That was the result, achieved as a matter of statutory construction in Friends of Pryor Park Inc v Ryde Council (Unreported 25 September 1995). However, it is important to emphasise that that case did not involve, because of mutual concessions made by the parties, the question of the proper classification or categorisation of a development. 63. That task of the proper characterisation or categorisation of the proposed development fairly and squarely arises in this case even though the applicant (Collex) and the consent authority (the Minister) both accept that the proposal is properly classified, for the purposes of the LEP, as a ‘freight transport terminal’ and

hence is a permissible purpose within the Industrial Enterprise 4C Zone. … 68. In my opinion, the ordinary usage and meaning of the terms ‘goods’ in our contemporary society would not accommodate or include the concepts of ‘waste’, ‘garbage’, ‘rubbish’ etc. … 74. These several contextual considerations give support to my understanding of contemporary meaning and usage of the word ‘goods’ as not comprehending domestic garbage wastes. 75. In the light of this commonly accepted fact throughout the history of the processing of the Collex development application and of this litigation, the ultimate submission advanced by Collex that the proposed development was ‘designated development’, not because it was relevantly characterized as a ‘waste management facility’ but because it was relevantly a ‘railway freight terminal’ must be regarded as a belated re-interpretation of the previously settled facts of the case, presumably in a vain attempt to distance the proposal from its characterization as a ‘waste transfer terminal’ (which interestingly enough is the term employed by the Minister in his Instrument of Determination granting development consent to the proposal). 76. For all of the foregoing reasons, I would hold that the proposed development is not properly characterized as a ‘freight transport terminal’ within the meaning of the LEP, and that in consequence of that category being the only possible permissible purpose of development for which the proposal might have been so characterized, it follows that the development is development that is prohibited by the LEP and is incapable of being granted development consent in these proceedings: see Chambers v Maclean Shire Council. 77. In so concluding, it is to be noted that the Minister’s relevant declaration of ‘State significant development’ was made pursuant to the EPA Act, s 76A(7)(b) and that there is no evidence of any

relevant direction having been made by the Minister pursuant to s 89 of that Act. 78. The result of this conclusion is that the Applicants’ appeal must be upheld and development consent must be refused upon the ground that the proposed development is relevantly prohibited by the LEP and hence is prohibited by the EPA Act, s 76B.” Noteworthy aspects The following aspects are noteworthy in the decision of Drake: • Bignold J refers to an “interpretive principle” of characterisation, that if the conclusion is reached that a proposal is truly for a permissible purpose of development, it is irrelevant to enquire whether it is also capable of being characterised for another but prohibited, purpose of development. This principle was identified by the NSW Court of Appeal in Chase. In essence, there are two possible issues involved: (1) the proposed development is as a matter of fact and degree for only one identified purpose, or (2) the proposed development is as a matter of fact and degree for a dual character and has two purposes. In such circumstances, this is addressed as a matter of statutory construction as outlined in Friends of Pryor Park. • Bignold J at paragraph [75], in suggesting the characterisation of the proposal for the purposes of whether it was designated development was relevant to its characterisation for the purposes of permissibility under the LEP, incorrectly implies that conclusions on characterisation under one particular statutory provision flow on to another.

¶21-290 Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd In Chase, the NSW Court of Appeal considered proceedings in

relation to a DA for 37 buildings containing 72 dwellings and an on-site sewerage treatment plant (STP) on the “Parklands” site at Govetts Leap Road in Blackheath. One of the issues raised in the proceedings was the question of characterisation of the proposal for the purposes of ascertaining whether it was designated development under Sch 3 of the EPA Regulation, being “sewerage systems or works”. Clause 4(1) of the EPA Regulation declared development described in Pt 1 of Sch 3 as designated development. Part 1 of Sch 3 under the heading “What is designated development?” included as one category “sewerage systems or works” followed by detailed specifications. The respondent conceded that, taken in isolation, the proposed STP was designated development, but argued that it was not a separate and independent use of land, but it was ancillary and incidental to the use of the land for tourist and residential accommodation. Tobias JA (with whom Giles JA and McClellan CJ at CL concurred) said at paragraphs [94]–[97], [100], [103], [107]–[114], [118], [128]–[132], [139]–[142], [144]–[147], [149]–[153], [169]–[182] and [196] as follows: “94 The first appellant (the Council not seeking to argue this issue) nevertheless submitted that the area of land proposed for on-site wastewater disposal and for construction of the proposed STP was of such a scale that it constituted an independent and separate use of the site. In this respect the proposed system would utilise an area of more than two hectares. 95 Relying on the decision of this Court in Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 in which it was emphasised that each case had to be considered on its own merits, it was submitted to the primary judge that the proposed STP would be constructed on an area separate from the residential development which was confined to another area of the site and, consequently, constituted an independent use of that part of the site on which it was to be located. 96 The first appellant also submitted to her Honour that the proposed STP could be characterised as an independent and separate use of the site on the basis that the tourist and residential component of the development was dependant on the proposed STP for its existence. Accordingly, the proposed STP

would have an ongoing function following the construction of the balance of the development. 97 The respondent submitted that the application was not for ‘Sewerage systems or works’ within the meaning of the expression in category 29 of Pt 1 of Schedule 3 to the 2000 Regulation. Rather, the proposed STP could only be characterised as a necessary and interrelated component of the primary use of the site namely, the construction of tourist and residential accommodation. It was therefore not a separate and independent use of the site, as it had no independent operation other than to service the tourist and residential accommodation. … 100 The only other case in this Court where the issue has been discussed was in Penrith City Council v Waste Management Authority where the Court, comprising Kirby P, Meagher and Handley JJA, in a single judgment said (at 384): ‘Because the words of the statutory definition may relate to parts only of the development as proposed, it is necessary, in performing the task of characterisation to consider the ‘character and extent and other features of the activities’ proposed to decide whether, properly classified for legal purposes, they fit into the definition against which they are being measured. This is what Glass JA suggested in Foodbarn Pty Ltd v The Solicitor-General (1975) 32 LGERA 157 at 161. It is what Hope JA said explicitly in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270.’ … 103 I mention these references in Penrith to the question of characterisation being a question of fact and degree depending upon the facts and circumstances in each case as any appeal to this Court pursuant to s 57(1) of the Court Act is confined to a question of law. Accordingly, if what is said to be the approach of this Court in Penrith is still to be regarded as the proper approach

to the issue of characterisation for the purpose of determining whether an activity which would otherwise fall within one of the list of categories of designated development in Pt 1 of Schedule 3 of the 2000 Regulation is to be treated in law as such, it would follow that if it was open to her Honour to find as a matter of fact that the proposed STP did not constitute a separate and independent use of the site, then that was a finding of fact which is not open to appellate review in this Court. … 107 In order to raise a question of law on the appeal, the first appellant submitted that the approach adopted by her Honour based upon the decision of this Court in Penrith was in error. In particular, it was submitted that the characterisation approach adopted in Penrith was only appropriate for determining whether a particular form of development is permissible or prohibited within the zone in which the land is located so that the same activity may be permissible or prohibited depending upon whether it is characterised as ancillary or subservient to the dominant use of the land on the one hand or, as an independent use of the land or part thereof on the other. However, once the development is characterised as permissible, the function of the development control process required by the EPA Act is to assess the impact of the proposal on the environment. 108 Thus, if the development application is in respect of designated development, then a particular level of assessment is assigned to it requiring the preparation of an environmental impact statement as required by s 78A(8)(a). If the application is in respect of development on land that is, inter alia, likely to significantly affect threatened species, then the level of assessment assigned to it requires the preparation of a species impact statement as required by s 78A(i)(b). The designation system whereby development identified as designated development controls the procedure for the assessment of an application for such development which is in any event permissible with consent, looks to the specific activities encompassed by the proposed use and contains in its own code

for measuring impact levels identified with respect to that particular form of development. 109 The first appellant acknowledged that whether a particular activity falling within the definition of ‘development’ in s 4(1) of the EPA Act also fell into one of the categories listed in Pt 1 of Schedule 3 involved a factual enquiry based on the material that described that activity in the development application and required a determination of whether its elements fell within one of the statutory descriptions of those categories. However, once a finding was made that the activities fell within a category, there was no room for the intrusion of unstated exceptions to the legal consequences of that finding such as a further finding that the activity constituting the category was merely ancillary to some other development the subject of the application which is said to be the dominant land use proposed by the application for the land to which it related. 110 Accordingly, the first appellant submitted that development which is declared to be designated cannot be removed from that category simply by the device of asserting that it is ancillary to the dominant use proposed by the development application or of a scale which is insufficient for it to be characterised as an independent use so that it is thereby excluded from the category of designated development into which it had otherwise fallen. 111 It was thus submitted that cl 4(1) of the 2000 Regulation, which provides that development described in Pt 1 of Schedule 3 is declared to be designated development for the purposes of the EPA Act, provides a self-contained code for determining what types of development are designated development. Once the factual enquiry as to whether a particular form of development falls within one of the designations set out in Pt 1 of Schedule 3, that is the end of the inquiry. That activity, being designated development, if made the subject of a development application must comply with the requirements of s 78A(8)(a) that the application be accompanied by an environmental impact statement.

112 In the present case, it was conceded that the proposed STP fell within the statutory description in category 29(4) of Pt 1 of Schedule 3 and was, therefore, a sewerage system or work declared to be designated development for the purposes of the EPA Act. It therefore did not matter whether the proposed STP was ancillary to some other form of development proposed by the application for the site and this was so irrespective of whether that development was to be regarded as the dominant use of the site or whether the proposed STP was to be regarded as an independent use of that part of the site on which it was to be located. 113 The agreed fact that the application included as part of the overall development an on-site STP which fell within the description set out in category 29(4) of Pt 1 of Schedule 3, thus led to the automatic result that that application must be accompanied by an environmental impact statement for it to be valid. 114 Such an approach was adopted by the primary judge in Maxwell v Hornsby Council (2002) 121 LGERA 186. In that case, her Honour held that the fact that a proposed STP, which was intended to service a retirement village, fell within Pt 1 of Schedule 3 of the 2000 Regulation was conclusive of whether the development application was in respect of designated development. Penrith and cases which had followed it, were distinguished. Her Honour accepted the council’s submission in that case (at 194 [41]) that there was no rationale for distinguishing between, for example, sewerage treatment plants that were an independent development or use of the land and were therefore designated development in accordance with the test set out in Penrith and sewerage treatment plants that fell within Pt 1 of Schedule 3 but would not require an environmental impact statement because they could be characterised as being ancillary or fulfilling a subservient purpose to another development the subject of the application. …

118 In Penrith this Court recognised that the ‘purposes’ or ‘types’ of development listed in Schedule 3 were purposes or types of development generally with the serious potential to cause harm to the environment. There were more than 40 categories and subcategories listed which ranged from abattoirs, brewery works, chemical factories, bitumen works, scrap recovery works to wood milling and joinery works. … 128 The first appellant acknowledged that her Honour’s decision in Maxwell has not been followed in subsequent decisions of the LEC concerning whether a sewerage system or work forming part of a development application was designated development within the meaning of the Regulation: Momentum Architects Pty Ltd v Hornsby Shire Council (2002) 123 LGERA 207 per Talbot J; Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225 per Cowdroy J; Hardenbergia v Baulkham Hills Shire Council (2002) 125 LGERA 273 per Bignold J and Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312 where the primary judge declined to follow her decision in Maxwell largely on the basis of judicial comity given that the other judges of the LEC had declined to follow it. See also Evans v Maclean Shire Council (2004) 138 LGERA 229. 129 Because this Court has not been called upon to decide the issues raised in the single judge decisions of the LEC since the change in the provisions of the regulation concerning designated development and, in particular, since the omission in 1994 of the preamble or chapeau to Schedule 3 of the 1980 Regulation, the first appellant submitted that this Court should look at the matter afresh and, in effect, reinstate her Honour’s decision in Maxwell. 130 The respondent submitted that contrary to the first appellant’s submissions, the amendment to the 1980 Regulation in 1994 by the omission of the preamble or chapeau to Schedule 3 had not altered the applicability of the approach to the determination of whether an environmental impact statement is required with respect to a development application than was the case prior to

that amendment. It was therefore submitted that the approach in Penrith was still applicable and as the factual finding of her Honour that the proposed STP was ancillary to the primary development of the site the subject of the application was one reasonably open to her on the evidence (and in fact was not challenged in the first appellant’s submissions), it followed that her Honour’s decision was one of fact and no relevant question of law requiring this Court’s intervention had been demonstrated. It follows that it is necessary to analyse this Court’s decision in Penrith more closely. 131 In Penrith the Waste Management Authority of New South Wales (the Authority) had applied to Penrith City Council for development consent for the establishment of a regional waste disposal depot on 290 hectares of vacant Crown land at Londonderry. The relevant land was zoned in a manner which permitted development for that purpose with the council’s consent. Also permissible with consent in the same zone was ‘extractive industries’. That expression was defined in the relevant planning instrument in substantially similar terms to par (n) of Schedule 3 to the 1980 Regulation. 132 Paragraph (n) relevantly provided that designated development included ‘extractive industries being — (i) the winning of extractive material …; or (ii) an industry or undertaking … which depends for its operations on the winning of extractive material from the land upon which it is carried on’. … 139 Their Honours continued: ‘Nevertheless, it is important to be alert, when embarking upon the task of statutory construction, to the context in which that task is enlivened and, here, the purpose for which kinds of ‘development’ are collected in a schedule of

‘designated development’. That purpose includes the requirement to submit with any application for such development a statutory environmental impact statement which has significant consequences.’ 140 Under the heading ‘The task of characterisation’, the Court (at 383) referred to the acknowledgement by Stein J that questions of fact and degree were involved in the allocation of any particular activity (as proved in evidence) to the categories of ‘designated development’ listed in Schedule 3. The kinds of ‘designated development’ which could be envisaged in particular applications lodged by developers for development consent will be multitudinous and of great variety. The catalogue of described developments in Schedule 3, their Honours observed, was meant to have general application for an indefinite period and to reflect the purposes for which it was provided. 141 The Court then observed: ‘However, the schedule is not open ended. It is necessary in each case to measure the application as lodged with the various classes specified in Schedule 3. Because the task is one of classification the consideration of the development proposed against the various categories specified in the schedule will inescapably result in decisions which are partly impressionistic, upon which different minds may entertain genuine differences. In the nature of the great variety of the classes of development collected in Schedule 3, and the lack of a common genus or a residual clause, it will be easy to dismiss the great majority of the classifications as being wholly irrelevant to the development proposed. Then there may appear one, or possibly more, classifications which the local authority considers to apply but which the developer contests. It is at that stage that the task of characterisation is required …

In the nature of the cases which involve a costly contested hearing in the Land and Environment Court … it will not be unusual for a genuine difference to exist as to whether the ‘development’ described in the application fits appropriately into the category described in Schedule 3 or does not.’ [Emphasis added] 142 After referring (at 384) to the fact that questions of degree were inescapably involved in cases such as that under consideration, the Court referred to a number of earlier decisions and then observed: ‘At least this much emerges from the earlier decisions. Because the words of the statutory definition may relate to parts only of a development as proposed, it is necessary, in performing the task of characterisation to consider the ‘character and extent and other features of the activities’ proposed to decide whether, properly classified for legal purposes, they fit into the definition against which they are being measured. This is what Glass JA suggested in Foodbarn.’ … 144 The Court then turned its attention to whether the subject development application was for designated development. It agreed with Stein J that the creation of a waste deposit depot could not be properly characterised as an industry and hence did not fit within sub-paragraph (i) of the definition of ‘extractive industries’ in par (n). Nevertheless, it was considered that within the terms of par (n), it was clear that attention was to be focussed on the particular development proposed and not ‘extractive industries’ in their generality. This was signalled by the fact that although the words ‘extractive industries’ appear in the plural, the sub-definition in sub-paragraph (ii) par (n) brought the class back to the singular by reference to ‘an industry or undertaking’. 145 Accordingly, having regard to the reference in the definition of ‘designated development’ in Schedule 3 to ‘an … undertaking’, it

was clear that in that context the operations proposed by the Authority were required to be measured, not against ‘extractive industries’ in their generality, but against an undertaking which depended for its operations on the winning of extractive material from the land on which it was carried on. The question was, therefore, whether the undertaking proposed by the Authority so depended. 146 The Court’s response to the question so posed was as follows (at 388): ‘It was urged that if the Court said so it would mean that every building site which involved the extraction of materials from the land (as for car parking) would attract par (n), and the obligation (with consequential expense and delay) of providing an environmental impact statement. Again, we must say that each case will depend upon its own facts and circumstances. What is involved, as has been repeatedly stressed, is always a question of fact and degree. As is clear from the authorities, and particularly from O’Donnell, there are two alternative tests. We agree that, when classified by reference to its principal purpose, the Authority’s activities would not be described as an extractive industry. However, this does not mean that it cannot be an extractive industry within the second limb of the definition when it is classified by reference to the dependence of its operations on the winning of extractive material from the land on which it is carried. It is in this regard that we consider that Stein J erred. The task of classification being one which addresses the ‘character extent and other features’ of the proposed activity, we are left in no doubt in this case that those features, together with the character and extent of extraction of soil inherent in the Authority’s proposed operations, brings the case within Schedule 3. It requires the characterisation of the development proposed as ‘designated development’. It hence attracts the obligation to support the application with an environmental impact statement. This the Authority failed to do.’

147 The foregoing approach recognises that an environmental impact statement was then only required pursuant to s 77(3)(d) of the EPA Act and is now only required by s 78A(8)(a), if the development application is one ‘in respect of’ designated development. Accordingly, so it was submitted, it was necessary to determine whether the application was in respect of designated development or whether it was in respect of non-designated development notwithstanding that an activity which formed part only of the overall development the subject of the application (the proposed STP) fell within one of the categories listed in Pt 1 of Schedule 3. According to the respondent, characterisation of the development the subject of the application was still required ‘for legal purposes’: that is, for the purpose of determining whether the application was one in respect of designated development within the meaning of s 78A(8)(a). It was submitted that this was the characterisation exercise undertaken in Penrith and was still applicable. … 149 There is no such contest in the present case. It is common ground that the proposed STP falls within the description set out in category 29(4) of Pt 1 of Schedule 3 and is, therefore, designated development. The question is whether that is the end of the inquiry and, if not, what is the nature of any further inquiry. In my opinion the only further inquiry is whether the application is ‘in respect of’ a sewerage system or work within the meaning of s 78A(8)(a) of the EPA Act. 150 Although the first appellant placed reliance, as did her Honour in Maxwell, upon the deletion in 1994 of the preamble to Schedule 3, I do not regard that amendment as either significant or relevant to the issue at hand. Although it is true that the various categories listed in Pt 1 of Schedule 3 are described in a manner which will often give rise to a factual enquiry as to the type and scale of the activity described for the purpose of determining whether it falls within the statutory description of a particular category of development, that is the first enquiry but not the last. If that enquiry is answered in the negative, then that is the end of

any question of designated development. But if the enquiry is answered in the affirmative (as in the present case) then, as I have observed, there is a further exercise that must be undertaken. The contest between the parties was with respect to the nature of that exercise. 151 The first appellant submitted that the only further enquiry was whether the development application was ‘in respect of’ one of the categories listed in Pt 1 of Schedule 3 and declared to be designated development. It was submitted that the words ‘in respect of’ were extremely broad and merely required that the particular category of designated development, in this case, a sewerage system, was part, and possibly an essential part, of the application. It was noted that the prepositional phrase ‘in respect of’ in s 78A(8)(a) did not require that the application be only in respect of a category which had been declared designated development. 152 It followed according to the first appellant that an enquiry as to whether that part of the application which constituted designated development involved a separate and independent use of the site or whether it was only ancillary to another ‘primary’ use or development purpose proposed by the application, namely, tourist/residential dwellings, was irrelevant. Once it was determined that the proposed STP was a sewerage system or work within the meaning of category 29 and, therefore, designated development, it must follow that the application in the present case was ‘in respect of’ that development notwithstanding that, as her Honour found, the proposed STP could not be characterised as a separate use of the site or that its sole purpose was to support the primary or dominant tourist/residential use and was therefore ancillary or subservient thereto. 153 It was therefore submitted that the approach taken by the judges of the LEC since Maxwell was in error and that her Honour’s approach in Maxwell was correct and should be, as it were, reinstated. …

169 The foregoing approach of the LEC to the determination of whether a proposed development is ‘designated development’ has been adopted in subsequent cases. The question that arises for determination in this appeal is whether that approach is correct. In my opinion, it is not. 170 The cases to which I have referred have all proceeded upon the basis that part of the development the subject of the relevant development application was ‘designated development’ in that, taken in isolation, it fell within one of the list of categories in Pt 1 of Schedule 3. The majority, if not all, of the cases seem to relate to sewerage systems such as the proposed STP in the present case. However, such systems have been consistently found to be ancillary to the primary or dominant development the subject of the application. As the sewerage systems in question have been designed only to service the dominant, primary or main purpose for which the development application has been made, they have been held to be ‘ancillary’ or ‘subsumed’ by that primary or dominant purpose so that, not being an independent use of the relevant land, the developments, the subject of the relevant development application, have been not held to be designated development. 171 It seems to me, however, that none of the decisions in the LEC which have continued to adopt what the judges of that court have perceived to be the approach to characterisation adopted by this Court in Penrith, have appreciated that once it has been determined that a particular part of the overall development the subject of an application is ‘designated development’ in that it falls within one of the categories listed in Pt 1 of Schedule 3 to the 2000 Regulation, the only other relevant question is whether, within the meaning of s 78A(8)(a), the application is ‘in respect of’ designated development. 172 If it is, it matters not in my opinion whether it is subsidiary or ancillary to some other form of development to which the application relates and which is regarded as the dominant or primary development or whether it constitutes some form of independent use of the land to which the application applies.

173 None of the single instance decisions of the LEC have approached the matter in the way I have indicated. In fairness, it should be acknowledged that this is because the judges of the Court have considered themselves bound by the approach they perceived to have been adopted by this Court in Penrith as still being applicable notwithstanding the changes which had been made to the EPA Act and the 1980 Regulation by the 1994 amendments. 174 It is true of course that s 77(3)(d) which was extant at the time of this Court’s decision in Penrith, is in the same terms as s 78A(8)(a) of the EPA Act in its present form. But what I think has been overlooked is that in Penrith the issue before this Court was whether the proposed waste disposal depot could be characterised as an undertaking which depended for its operations on the winning of extractive material within the meaning of subparagraph (ii) of par (n) of Schedule 3 of the 1980 Regulation. This Court determined that that question should be answered in the affirmative with the result that the development proposed was ‘designated development’. In other words, the only issue determined by this Court was whether the proposed development fell within the relevant category of designated development in Schedule 3. Once that issue had been determined, no further issue arose as to whether that undertaking was merely ancillary to some other more dominant use proposed by the Authority’s development application. 175 In other words, the issues that arose in cases such as Maxwell, Momentum Architects, Logan-Bald and the present case simply did not arise in Penrith. It is true that at first instance, Stein J (at 115) expressed the view that he had difficulty in categorising the extractive operation portion of the development of the waste disposal depot as other than incidental and ancillary to the primary purpose of waste disposal. His Honour considered that the extractive operations were plainly subsidiary to and bound up with the disposal of the waste delivered to the site. He therefore utilised the terminology of Glass JA in Foodbarn. But this was not the approach of this Court on appeal.

176 It is also true that their Honours emphasised the need to look at the facts in their detail ‘and to consider, on the way to the characterisation finally assigned, whether, notwithstanding the existence of another ‘primary’ use or development purpose, it may properly be said that an ‘ancillary’ use or development purpose is involved.’ 177 But when this Court turned to the question of whether the application was for designated development, the only issue for determination was whether the operations proposed by the waste disposal depot constituted an undertaking which depended for its operations on the winning of extractive material from the land on which it was to be carried on. Once that question was answered in the affirmative that was the end of the enquiry. For these reasons I do not consider that the decision of this Court in Penrith mandates the approach adopted by the judges of the LEC in the authorities to which I have referred. 178 Rather, once it is determined or conceded that at least part of the development the subject of a development application falls within one of the categories listed within Pt 1 of Schedule 3 to the 2000 Regulation, such as in the present case, then that part is thereby declared to be ‘designated development’. As I have noted, the only question then is whether the development application in question is ‘in respect of’ that part of the development which is so declared. In my opinion, that question is not resolved by undertaking a further exercise in characterisation dependant upon whether that part of the proposed development is an independent use of the land to which the application relates or whether it is ancillary to some other part of the development proposed which is the dominant or primary purpose of the application. 179 As I have already indicated, there is no proper basis for construing s 78A(8)(a) as applying to an application only in respect of designated development. I agree with the primary judge in Maxwell (at 195 [43]) that it would be contrary to the

intent of the legislation now in force to hold that an activity which falls within one of the categories listed in Pt 1 of Schedule 3 should necessarily lose that character because it only forms part of a greater development or is not the main purpose of the development in respect of which the application has been made. 180 It is of little significance to observe that the critical words in s 78A(8)(a) are ‘in respect of’ and not ‘for’. There is authority in other contexts that the prepositional phrase ‘in respect of’ is of great width and certainly wider than the preposition ‘for’: Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 87 per Fullager J; Genders v Government Insurance Office of NSW (1959) 109 CLR 363 at 387. Further, in State Government Insurance Office v Crittenden (1966) 117 CLR 412 at 416 Taylor J referred to the observation of Fullager J in Unsworth that the expression ‘in respect of’ was wider than the preposition ‘for’ when considered alone (that is, not in the composite phrase ‘for and in respect of’). His Honour then adopted the comment of Mann CJ in Trustees Executors of Agency Co Ltd v Reilly [1941] VLR 110 at 111 that ‘[t]he words ‘in respect of’ are difficult of definition but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer.’ See also, National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218 at [74] and [123]. 181 As is always the case when construing a phrase such as ‘in respect of’, much depends on the context and the discerned purpose of the legislative provision in which it is used. In the present case, the phrase is used in connection with a provision which requires an environmental impact statement to be prepared where development is declared to be designated development. By definition such development is more likely than other forms of development to have significant environmental impacts on sensitive areas such as wetlands and the like. 182 It would be a curious and unlikely result and, in my opinion,

contrary to a purposive construct of the relevant provision of the EPA Act the objective of which is the protection of the environment, if development which is admitted or found (after being appropriately characterised) to be designated development can escape the legal requirements deemed necessary by the legislature to enable the impacts of that development to be properly assessed by the device, unexpressed in that provision, of characterising that development as subsidiary to some other non-designated development which is regarded as the dominant or primary development proposed in a particular development application. In my opinion, clear words would be required in the EPA Act before such a result could be embraced as a matter of statutory construction of s 78A(8)(a). … 196 Accordingly, in my opinion the primary judge was in error in answering question (ii) in the negative. In my opinion, Development Application No X05/0412 was in respect of designated development so that the failure to prepare and lodge an environmental impact statement prior to the granting of development consent to that application by Commissioner Bly resulted in that application being invalid. Consequently, the Commissioner’s consent to that application is also invalid.” It should be noted the decision in Chase deals specifically with the task of characterising development for the purposes of establishing whether a DA is “designated development”. This was the task the NSW Court of Appeal dealt with in Penrith, but that decision did not result in any divergence from the principles of characterisation when applied to the task of characterisation for the purposes of establishing whether a DA is permissible or prohibited. Conclusions The key conclusions which can be derived from Chase are as follows: • The deletion of the preamble or chapeau in Sch 3 of the EPA Regulation (which stated “development for the undermentioned purposes or development of the undermentioned types is

designated development”) did not alter or affect the task of characterisation to establish whether a DA is designed development under Sch 3 (Tobias JA at paragraph [150]). The characterisation was still of a purpose. • The first step to be taken in characterising a development to establish whether it is designated development is a factual enquiry as to whether the proposed development falls into the statutory description of a particular category of development. If the answer is negative, that is the end of the question of whether it is designated development (Tobias JA at paragraph [150]). If the answer is affirmative, the only other relevant question is whether the DA is “in respect of” designated development (Tobias JA paragraph [171]). It is irrelevant to ask whether it is subsidiary or ancillary to some other form of development, or whether it is a separate and independent use of land (Tobias JA at paragraph [172]). Tobias JA in Chase reasoned that the conclusions referred to above were consistent with the decision in Penrith. It is true that the decision in Chase was not inconsistent with Penrith. However, it must be remembered that Penrith depended upon the peculiar and extended definition of “extractive industry” applicable at the time. Moreover, the result in Chase would have been the same if the pre-existing principles for characterisation for permissibility had been applied, based upon the statutory construction of provisions of the EPA Act and Regulation regarding designated development. Indeed, that still is likely the case, as the conclusions espoused by Tobias JA, in relation to the second step of enquiring whether the application is “in respect of” designated development, and rejecting the need to ask if the proposal is ancillary and incidental to another purpose, are derived not from a divergent approach towards characterisation for the task of establishing whether a DA is designated development, but from an application of statutory construction of the provisions related to designated development.

¶21-300 Regulation amends designation of sewerage

systems and adds new provision regarding ancillary development Following the NSW Court of Appeal decision in Chase, the Minister for Planning made the Environmental Planning and Assessment Amendment (Designated Development) Regulation 2007 No 110 (NSW) on 1 March 2007. This regulation amended the designation of sewerage systems and added a new provision relating to development which is ancillary to other development. A key change was the addition of a new cl 37A to Sch 3 of the EPA Regulation as follows: “37A Ancillary development (1) Development of a kind specified in Part 1 is not designated development if: (a) it is ancillary to other development, and (b) it is not proposed to be carried out independently of that other development. (2) Subclause (1) does not apply to development of a kind specified in clause 29(1)(a).” Clause 37A of Sch 3 provided that development of a kind specified in Sch 3 is not designated development if it is ancillary or related to other development, provided it is not carried out independently of that other development. This, however, does not apply to sewerage systems with capacity for more than 2,500 persons equivalent capacity or 750 kilolitres per day. It appears the different views held in a number of NSWLEC cases derive from a difficulty in keeping in mind the requirement that characterisation for the purposes of designated development is undertaken by reference to the categories contained in Sch 3 Pt 1, and do not relate to the purposes of development in the Land Use Table. Yet it appears that, in Momentum Architects and Logan Bald, the Court also appeared to focus on the purposes of development

under the Land Use Table. In contrast, the categories contained in Pt 1 of Sch 3 of the EPA Regulation are quite different from the purposes of development in a Land Use Table and moreover Sch 3 lacks any residual category or any hierarchy of the categories listed. The outcome in Chase was driven by the list of categories in Sch 3 and not by any difference in approach in the task of characterisation.

¶21-310 Characterisation of an existing use where a development consent applies Where a development has the benefit of a development consent, but that use is now prohibited by an EPI resulting in the development being an “existing use” under s 106, the characterisation of the existing use so protected is the uses approved by the development consent and thus, it is irrelevant to pursue the approach in Shire of Perth v O’Keefe or the genus where a consent applies: Botany Bay v Workmate Abrasives at paragraph [14].

¶21-320 Halliday and Anor v Hornsby Shire Council If a reader holds concerns that the process of characterisation raises complexities and difficulties, some comfort may be drawn from the fact that such complexities and difficulties can also befuddle practitioners eminent in the field of planning law. An excellent case in point is Halliday and Anor v Hornsby Shire Council [1979] 1 NSWLR 391 (Halliday). Halliday was a decision of the NSW Court of Appeal, with Mahoney JA providing a judgment with which Hope JA and Hutley JA concurred. It related to a DA for the use of land for the kennelling, breeding, selling and training of dogs. The Hornsby Planning Scheme Ordinance provided that development for the purposes of agriculture was permissible without consent on the land, but that development for the purposes of commercial premises was prohibited. Agriculture was defined as including the keeping and breeding of livestock. The applicant was represented by T.R. Morling QC (an eminent planning

lawyer and later Federal Court judge) while the Council was represented by N.A. Hemmings (a leading planning lawyer, later QC and judge of the NSWLEC). Mahoney JA held at p 393: “It is now accepted by the parties, that, if and in so far as the proposed use be not for ‘agriculture’ in the defined sense, it is for ‘commercial premises’ and is, therefore, prohibited; and that, if and in so far as it is for ‘agriculture’, consent is not necessary. This concession puts the present appeal in a curious position. If the proposed use is for ‘agriculture’ then no consent is necessary; if it is not ‘agriculture’, then, upon the concession made, no consent could be given. Therefore, an appeal to the tribunal against the refusal to give consent must fail. The result of this appeal must, therefore be that it should be dismissed.” Given this concession, the applicant should not have lodged the application, while the Council should not have considered any such application as it either did not need Council consent or the Council could not grant consent because it was prohibited.

¶21-330 Development for dual purposes and the Standard Instrument In relation to proposed development which has a dual character and is properly characterised as being for two purposes inextricably linked (see C.B. Investments Pty Ltd v Colo Shire Council and Macquarie International Health), an interesting question arises as to the effect of cl 2.3(3)(b) of the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument) which provides as follows: “2.3. Zone objectives and Land Use table [compulsory] … (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.” It appears that this provision has the effect (where adopted in an LEP, noting that it is a mandatory or compulsory provision) that references to purposes of development in the Land Use Table in a particular zone are mutually exclusive. It is noted that comments by Hope J in C.B. Investments Pty Ltd v Colo Shire Council at 271–272 and by the NSW Court of Appeal in Macquarie International Health at 222–223, have pointed out that particular developments may fall into more than one category of purpose in an EPI. The effect of such a clause if adopted by an LEP is to ensure that the categories of developments in a single zone are mutually exclusive and hence, overriding any genus/species approach in Royal Agricultural Society v Sydney City Council at 310– 311, and in Friends of Pryor Park. The classification of land uses in the Standard Instrument seeks to apply some rigour in establishing a hierarchy of land use terms1 and hence avoid any genus/species issues. However, this provision only prevents one purpose from also being a reference to another purpose in the genus/species approach and does not affect developments of multiple purposes, dual purposes or successive purposes. As Hope JA in C.B. Investments Pty Ltd v Colo Shire Council at 2762 said: “I do not think that the activities of man upon land are always required to, or always do, fit exclusively into one only of the various categories which planners devise”. As noted earlier, an array of terminology is used in discussions on characterisation. “Purpose” is used for multiple meanings, while the use of the words “dominant” and “ancillary” in different contexts may lead to confusion. The following table (Table 21.1) indicates the array of terminology used in the cases and suggests some standard descriptors be used to avoid potential misunderstanding and confusion. In particular, the word “ancillary” has been avoided in this table. It has often been used as a compound adjective of “ancillary and incidental” to denote development subsumed within a principal purpose. However, when used singularly, “ancillary” simply means “related” and ancillary development may be separate and independent

purposes of development as well as development which is incidental and subordinate to another purpose. For these reasons “ancillary” is avoided in the suggested terminology for characterisation. Table 21.1: Terminology and standard descriptors

Footnotes 1

See NSW Government, NSW Department of Planning, 10 March 2011, Amendment to the Standard Instrument (Local Environmental Plans) Order 2006, Planning Circular LEPMaking Processes Planning Scheme 110-011.

¶21-340 Principles regarding the characterisation of development The key principles derived from the discussion on the characterisation of development are as follows: Principle 1: A purpose of development refers to a kind of building or work, which is a description of the physical activity, being the use of land or the uses to which a building or work is to be put (Baker, Shire of Perth v O’Keefe). Purpose may be inferred from the activities to be carried out (Bonus). It is descriptive and does not require a meticulous examination of the details or processes or activities (L.N. Price Pty Ltd v Leichhardt Municipal Council, Shire of Perth v O’Keefe). Rather, it requires a description at a level of generality appropriate for planning (Shire of Perth v O’Keefe). Principle 2: The approach towards the characterisation of the purpose of a development, when the characterisation is required to determine whether the development is permissible under a Land Use Table or for other purposes for an EPI or the EPA Regulation, is for the process to be undertaken by reference to the special descriptions of categories in the provisions of the EPI or EPA Regulation in question relating to the reason why characterisation is being undertaken (Shire of Perth v O’Keefe). However, if the existing use has the benefit of a development consent, the characterisation of the existing use is the uses approved by the development consent and the genus test is irrelevant (Botany Bay v Workmate Abrasives). Principle 3: Where characterisation of the purpose of a development is required for establishing the extent of existing use protection where there is no development consent, the task is not approached by reference to the descriptions of categories contained in the Land Use Table or EPI. Rather, it is undertaken solely by reference to the descriptive meaning of the development itself (Shire of Perth v O’Keefe). The descriptive meaning of an existing use is not to be found by a detailed aggregation of the particular activities and

processes carried out, but in an overall sense (L.N. Price Pty Ltd v Leichhardt Municipal Council, Shire of Perth v O’Keefe) and at a level of generality appropriate for planning (Shire of Perth v O’Keefe). Principle 4: As a corollary to Principle 2, where a development is being characterised for other than existing use protection, the same development can be characterised differently for the provisions of different EPIs or for the EPA Regulation. This is because characterisation other than for existing use protection is undertaken by reference to the categories in the particular statutory provisions for which characterisation is being undertaken. Hence, the same development may be characterised differently for the purposes of permissibility under an EPI, compared to its characterisation under an SEPP (such as the SEPP Major Developments), or to determine whether it is designated development under Sch 3 of the EPA Regulation. Principle 5: In characterising a particular development by reference to a statutory provision, it is necessary to measure the character and extent and other features of the particular development against the various categories specified in that statutory provision. In the case of characterising a development for permissibility, the various categories are those contained in the Land Use Table for the particular zone in question or other provisions of the applicable EPI (Penrith). This is a factual enquiry as to whether the proposed development (or parts thereof) falls within one or more of the statutory descriptions of a particular category of development (Chase). Principle 6: The task of measuring a particular development against the various categories specified in a statutory provision is undertaken in two stages involving: (1) a brief review of the entire range of categories in the statutory provision in question to dismiss those which are wholly irrelevant and to narrow down those categories which are potentially relevant, and (2) a detailed examination of the categories considered potentially relevant to ascertain whether the development in question meets

or falls within one or more of the categories in the statutory provision. (Penrith) Principle 7: The task of characterisation involves questions of fact and degree (Lizzio v Ryde Municipal Council, Penrith, Bonus). The process involves judgments not always susceptible to full rationalisation and where minds may genuinely differ (Penrith). Principle 8: Where, as a result of a detailed examination of the categories in the relevant statutory provision, it is concluded that the particular development meets only one of those categories, then that is the purpose of the development (Chase). Principle 9: Where, as a result of a detailed examination of the categories in the relevant statutory provision, it is concluded that the particular development meets more than one of these categories, then it is necessary to consider whether, in the case of the particular development: • any of the categories of purposes are separate and independent purposes of development, or • any of the categories of purposes are incidental and subordinate to another purpose. (Bonus, Penrith) Principle 10: The test of whether a purpose of development is separate and independent from another is whether the two purposes are severable, namely whether the operation of one does not inextricably require the other, although for convenience they sometimes may be carried out associated with each other, but on other occasions may not (Scott’s Provisions Stores). Principle 11: There may be more than one purpose of development carried out on the same premises or in the same building (Bonus, C.B. Investments Pty Ltd v Colo Shire Council). Principle 12: Where two purposes of development are separate and

independent of each other, it is irrelevant which of the two is larger and it is irrelevant whether one is overshadowed by the other in terms of income generated, space occupied or ratio of staff engaged (Foodbarn). Principle 13: Where an activity is found to be development (ie not excluded under the de minimus principle), the fact that it is minor or trivial is no basis for ignoring it for the purposes of characterisation (Steedman [No 2]). Principle 14: A purpose of development is not prevented from being a separate and independent purpose because it may be related to, ancillary to, or interdependent with, another purpose (Penrith, Baulkham Hills v O’Donnell, Macquarie International Health). Principle 15: Where a purpose of development has no connection at all with another purpose being carried out on the same land, such a purpose cannot be incidental and subordinate to the other (Steedman [No 2]). Principle 16: Where a proposed development includes more than one of the categories of purposes of development, none of which is incidental and subordinate to another, then it is necessary to enquire whether the following apply: • multiple purposes of development, each of which is a separate and independent purpose of development (Foodbarn) • a development proposal, which has a dual character, fitting into more than one of the purposes of development with those purposes being inextricably linked and incapable of severance (C.B. Investments Pty Ltd v Colo Shire Council, Macquarie International Health) • a single development proposal involving time successive purposes of development, namely a proximate purpose and an ultimate purpose (C.B. Investments Pty Ltd v Colo Shire Council), and • a single development proposal, which fits into two purposes of development, one of which is a species of a broader genus

(Friends of Pryor Park, Egan). However, the genus/species approach is precluded where an LEP utilises cl 2.3(3) of the Standard Instrument. Principle 17: Where a proposed development includes more than one of the categories of purposes of development, none of which is incidental and subordinate to another, the effect of the multiple categories of purposes depends upon the statutory construction of the particular provisions applicable to the characterisation task (Friends of Pryor Park, Chase, Macquarie International Health, C.B. Investments Pty Ltd v Colo Shire Council). Principle 18: The test of whether a purpose of development is incidental and subordinate to another purpose is whether the two purposes are not severable but are inextricably linked, such that they ordinarily occur together, rather than are merely sometimes associated with each other as a matter of convenience, but not always so (Scott’s Provisions Stores). Principle 19: Where a purpose of development is incidental and subordinate to another purpose, it is subsumed within that other purpose (Bonus) and it is ignored and treated as part of the other purpose for characterisation (Foodbarn). This applies irrespective of whether the separate and independent purpose and the incidental and subordinate purpose relate to the whole of the premises, or are located in separate parts of the premises (Foodbarn). Principle 20:The question of the applicant’s intentions or subjective motives for a proposed development are irrelevant to the characterisation of that development. The test is purely objective (Macquarie International Health, Woollahra v Minister, Shire of Perth v O’Keefe). Principle 21: A review of previous court decisions on characterisation is not relevant or useful in comparing factual conclusions. Such a review is only relevant to extract the legal principles from them (Penrith, Macquarie International Health). Principle 22: A nominate purpose does not have priority over an innominate purpose. The fact that a particular purpose of development

is an innominate purpose as opposed to a nominate purpose does not mean it has a lesser or inferior legal status. Purposes of development in the Land Use Table of an EPI are treated as having the same legal force, irrespective of whether they are nominate or innominate (Twibill). Principle 23: Where the Land Use Table of an EPI provides for innominate purposes in one of the categories of permissible or prohibited development, those innominate purposes are not confined to purposes specified or defined in the relevant EPI but apply to any other purpose (Marscon). Principle 24: The process of characterisation is illustrated in Figure 21.1. Figure 21.1: Process of characterisation

JUDICIAL REVIEW OF PERMISSIBILITY ¶22-010 Role of courts in judicial review In the previous chapters, the principles relating to the characterisation of development have been examined. Arising from this is the issue of the role of courts in judicial review of decisions of a consent authority on characterisation. This can arise in the following circumstances: (1) Where an applicant for a development application (DA) exercises a right of merit appeal against the decision of the consent authority under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (and when an objector exercises a right of merit appeal under s 98 of the EPA Act). In these circumstances, the Land and Environment Court of NSW (NSWLEC) in considering the appeal in Class 1 of the court’s jurisdiction, stands in the shoes of the consent authority and is empowered to redetermine the application de novo under s 38 of the Land and Environment Court Act 1979 (NSW) (NSWLEC Act). In these circumstances the court is required to determine afresh how the DA is characterised for the purposes of permissibility. In such circumstances, there is no doubt that the proper role of the court is to determine de novo how a DA should be characterised for the purposes of permissibility. (2) Where there are civil enforcement proceedings under Class 4 of the NSWLEC’s jurisdiction seeking judicial review of a consent authority’s decision on the characterisation of a DA. Such proceedings would include: • action to declare a development consent void on the grounds that it is prohibited by an Environmental Planning Instrument (EPI) • action to declare a DA to be permissible where a consent authority refuses it on the grounds that it is prohibited development, and

• action to restrain development being conducted on the grounds that it requires development consent but lacks such a consent, or that it is being undertaken in breach of a consent on the grounds that it is prohibited, or that it is prohibited development. (3) Where there is an appeal on a question of law under s 56A of the NSWLEC Act to a judge of the NSWLEC where that question of law relates to the decision of a Commissioner of the Court in a merit appeal relating to characterisation, or an appeal to the NSW Court of Appeal on a question of law, where that question of law relates to a decision of the NSWLEC in a merit appeal relating to characterisation. Since the mid-1990s, the courts in planning litigation have applied a sharper focus to the proper role of the courts in exercising judicial review of administrative decisions relating to questions of fact. In approaching the question of the role of the courts in judicial review of whether findings of facts fall within the provisions of a statutory enactment, initial attention was given to seeking to distinguish between questions of fact and questions of law (see Hope v Bathurst City Council [1980] HCA 16 and Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36 (Agfa Gevaert)). In Agfa Gevaert, the High Court noted (without footnotes): “The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. … Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: ‘1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.’ In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear. …” The unsatisfactory nature of these distinctions is well highlighted by the High Court in Agfa Gevaert, while a more productive approach is to explore not what essentially factual findings are questions of law, but rather to identify the role of judicial review in relation to findings of fact and whether there are any classes of findings of fact which should be subject to greater potential judicial scrutiny than others. Earlier approaches seeking to classify factual conclusions as either mandatory or directory have not been viewed with favour by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 390–391. Approaches in relation to judicial review This has given rise to a range of approaches for the courts in relation to judicial review of factual conclusions:

(a) The first option is for the courts to accept the factual conclusions of an administrative decision-maker, with judicial review limited to review on the grounds of manifest unreasonableness (Wednesbury unreasonableness). (b) The second option is for the courts to consider a limited range of objective factual conclusions as giving rise to an error of jurisdiction capable of review de novo by the courts (a jurisdictional fact). (c) The third option is for the courts to consider certain factual conclusions as a condition precedent to the exercise of a power capable of review by the courts where the decision-maker has failed to determine the condition precedent was not actually satisfied in the material before the decision-maker. In approaching the role of the courts in judicial review of decisions on characterisation under the EPA Act, the New South Wales courts entered into the approach that decisions of characterisation were findings of fact of the consent authority which would not be disturbed by the courts on judicial review on grounds other than Wednesbury unreasonableness. The initial embrace of this approach was occasioned by the need for a practical approach to some difficult circumstances. It then became entrenched during a period when the concept of jurisdictional facts underwent a resurgence until the approach became an embarrassment, having long outlived its usefulness. It was finally abandoned with the NSW Court of Appeal’s decision in Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 (Pallas Newco). Pallas Newco settled the question finally that decisions on the characterisation of development are jurisdictional facts, capable of redetermination de novo by the courts in the exercise of their functions of judicial review. Development of the law An examination of the development of the law in this area is not simply a digression of historical interest only. It is useful to understand what is a jurisdictional fact as opposed to other conclusions of fact and to provide assistance in identifying what other factual conclusions under

planning and environmental law are also jurisdictional facts. While the resurgence of jurisdictional fact has been criticised elsewhere,1 it provides an important constraint on decision-makers to ensure accuracy of fundamental decisions which can significantly affect many parties. It fits well with the role of courts in exercising a supervisory role in administrative law. Rather than representing a breach of the separation of powers between the executive and the judiciary, it is not a right of full merit review in disguise, but a part of the checks and balances fundamental to administrative law. Footnotes 1

Aronson, M, 2001, “The Resurgence of Jurisdictional Facts”, Public Law Review, Volume 12, p 17–39.

¶22-020 Bentham and Another v Kiama Municipal Council and Others In the context of the EPA Act, the issue of the role of the courts in judicial review of decisions on characterisation of a development was first explicitly raised in Bentham and Another v Kiama Municipal Council and Others (1986) 59 LGRA 94 (Bentham), a decision of Stein J in the NSWLEC. The case related to a challenge to the validity of a development consent issued by the Council for what the DA described as a “motel, function centre, tavern etc.” although in accompanying documents it was described in what the judge considered “grandiose terms” as the “Harbourview International Hotel”. The challenge was brought by two rival hoteliers in Kiama. The applicable EPI, the Kiama LEP No 5, required that a hotel have a minimum site area of 6,000 m2 while a motel was required to have a minimum site area of 2,000 m2. The site area for the DA was 3,465 m2. The Council described the development as a “tourist complex” and characterised it as having multiple purposes, namely a motel, restaurant, convention facilities, coffee shop and tavern.

The definitions of “hotel” and “tavern” adopted in the Kiama LEP were meaningless, referring to premises holding certain licences under the Liquor Act 1912 (NSW), which no longer existed. Stein J held at p 98– 99: “In the context of the apparent semantic confusion as to whether the development is properly categorised as an hotel or motel or a variety of uses, one must ask was the conclusion of the council so unreasonable that it was not open to it acting reasonably? See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014; Parramatta City Council v Hale (1982) 47 LGR 319; Pioneer Concrete v Port Macquarie Concrete (Cripps J, 20 July 1984, unreported). My mind has fluctuated as to the proper and appropriate classification of the proposal in the development application for the purposes of applying cl 33 of the local environment plan. While I have had great difficulty in wrestling with the terminology, overall I tend towards treating the development as a conglomerate of uses including a motel, a tavern, a conference centre and other ancillary uses rather than as a hotel. However, the circumstances of the difficult factual assessment to be made by council, the fact that minds might differ and conclude otherwise than did the council is no reason to [p 99] vitiate its decision. It was a decision which, in my opinion, was reasonably open to council to make. It sought and acted on advice from the department. To put the question a different way, is the decision ‘looked at objectively, (are) so devoid of any plausible justification that no reasonable body of persons could have reached’? (Lord Diplock in Bromley London Borough v Greater London Council [1983] 1 AC 768 at 821). I do not believe so.” It will be noted that Stein J adopted the approach that the Council’s decision on characterisation should be subject to judicial review on the

grounds of Wednesbury unreasonableness “in the context of the apparent semantic confusion” of the various definitions.

¶22-030 Blair v Blue Mountains City Council and Hayward t/as Blaxland Veterinary Clinic In Blair v Blue Mountains City Council and Hayward t/as Blaxland Veterinary Clinic (1997) 93 LGERA 189 (Blair), Bignold J in the NSWLEC considered a challenge to the validity of a development consent to establish a veterinary clinic at Hope Street in Blaxland. The subject land was zoned Residential 2C1 under the Blue Mountains LEP No 4. In this zone development for the purposes of commercial premises was prohibited, while development for the purposes of professional consulting rooms was permitted with consent. The Council characterised the proposal as “professional consulting rooms” and granted development consent for a DA. The consent was challenged by another veterinary surgeon. Bignold J found that the second respondent was not a legally qualified or registered medical practitioner within the meaning of the Medical Practice Act 1992 (NSW). Bignold J held at p 196–198 as follows: “The proper interpretation of the statutory definition of ‘professional consulting rooms’ was a question of law. In particular, the meaning of the expression ‘legally qualified medical practitioners’ was a question of law: see Hope v Bathurst City Council at 10; 268 and Collector of Customers v Agfa-Gevaert ltd (1996) 186 CLR 389 at 394. That expression was not an ordinary English expression, the meaning of which is to be established as a matter of fact: see New South Wales Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512 cited with approval in Hope at 7 and 8. Rather, it was obviously a technical term or term of art. … [p 197]

Accordingly, the present case is entirely distinguishable from the many cases decided by this court where it has been held that a Council’s decision that a particular development application falls within a defined category of development will not be set aside by the court’s decision on the same question, provided that the Council’s decision was one that was reasonably open to it. Those cases may be explained on the basis that they involved a determination as a matter of fact as to how a proposed development should be categorised or whether a proposed development satisfied a statutory description in circumstances where that statutory description had been properly understood ie where there had been no erroneous interpretation of it. In the present case, the fundamental legal error committed by the first respondent was its misconstruction of the statutory definition of ‘professional consulting rooms’ and in particular, its misconstruction of the expression ‘legally qualified medical practitioners’ appearing in that definition. Moreover in determining that the primary facts (concerning the second respondent’s development proposal for his veterinary clinic) fell within the statutory description (the definition of ‘professional consulting rooms’), the first respondent erred in law because that determination could properly only have yielded the opposite result to that reached by the first respondent: see Hope v Bathurst City Council and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 where the following passage appears in the oft-cited judgment of Glass JA: ‘Further, an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Hope v Bathurst City Council at 10; 268; Australian Gas Light Co v ValuerGeneral (1940) 40 SR (NSW) 126 at 138; 14 LGR (NSW) 149 at 155.’ … [p 198]

… It follows from the foregoing that the development consent is invalid because it is vitiated by material error of law.” Thus, Bignold J distinguished Blair from Bentham on the basis that Bentham dealt with a question of fact, while in Blair he was dealing with a question of law following Agfa Gevaert which arose because the definition of professional consulting rooms was not an ordinary English expression but a technical term or term of art.

¶22-040 Londish v Knox Grammar School and Others In Londish v Knox Grammar School and Others (1997) 97 LGERA 1, the NSW Court of Appeal considered an appeal in relation to challenges to the validity of two development consents granted by Kuring-gai Council for the development of boarding accommodation at the Knox Grammar School at Warrawee. One of the issues in the appeal related to the proper characterisation of the development. One development consent was granted to permit a change from one existing use to another of land which was a former Commonwealth Scientific and Industrial Research Organisation entomology laboratory zoned Special Uses. Subsequently, the land was rezoned to Residential C in which “educational establishments” were permissible with consent but “boarding houses” were prohibited. Stein JA gave a judgment which was agreed to by Mason P and Meagher JA. Stein J was the judge in Bentham in the NSWLEC but he was subsequently appointed to the NSW Court of Appeal. Stein JA held at p 7–8 as follows: “The appellants submit that the issue of whether or not the use of the land falls within the characterisation of ‘educational establishment’ is not a matter of discretion, but a jurisdictional fact and a matter which goes to the court’s jurisdiction. Accordingly, the court can review the council’s decision as being in excess of jurisdiction. In response, the respondents assert that the council’s decision was not one of jurisdictional fact (which would be reviewable by

the court) but a finding of primary fact not ordinarily reviewable. It is a question of law whether the primary facts can necessarily fit the statutory description: Azzapardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. However, whether facts fall within the meaning of an ordinary expression, which as ‘educational establishment’ as a matter of common understanding, is a question of fact. Although more than one conclusion might reasonably have been reached by a decision maker, an incorrect finding will not involve an error of law: see Hope v Bathurst City Council (1980) 144 CLR 1; 41 LGRA 262. In such cases, it is not for the court [p 8] to substitute its own opinion for that of the primary decision maker: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24. The present case was commenced in class 4 of the Land and Environment Court’s jurisdiction, by way of judicial review. There is a line of authority in the Land and Environment Court commencing in 1986, to the effect that if the opinion formed by the decision maker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision: see for example, Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Leichhardt Municipal Council v Maritime Services Board (NSW) (1985) 57 LGRA 169. See also Taylor v Hornsby Shire Council (1990) 69 LGRA 281. Malcolm v Newcastle City Council (1991) 73 LGRA 356, Save Blue Lagoon Beach Action Group Inc v Kelvest Pty Ltd (1993) 81 LGERA 144, Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 and other cases cited in the footnote. See also my article discussing the policy issues concerning agency defences ‘Relationship of Tribunals to the Decision-Maker, Deference to Agency Expertise — The Experience of the Land and Environment Court in New South Wales.’ In R Creyke (ed), Administrative Tribunals: Taking Stock (1992), Centre for International and Public Law, ANU.

In the circumstances of this case, it is apparent that the evidence and material before the council may have reasonably admitted to more than one conclusion. The decision reached by council to categorise the development as an ‘educational establishment’ and not a ‘boarding house’ was one which was reasonably open to it to make and within its discretion. Accordingly, in my opinion the council’s decision is not reviewable by the court. In Bentham the issue was whether a proposed development should be characterised as a hotel (which was prohibited) or, as council found, a conglomeration of a motel, tavern and conference centre (which was permissible with consent). In that case, I expressed the test thus: ‘the fact that minds might differ and conclude otherwise than did the Council is not reason to vitiate its decision. It was a decision which, in my opinion, was reasonably open to Council to make. It sought and acted on advice from the department. To put the question a different way, is the decision ‘looked at objectively, … so devoid of any plausible justification that no reasonable body of persons could have reached [it]’? (Lord Diplock in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821). I do not believe so’ at 98. Despite the urgings of counsel for the appellants, I see no reason to depart from Bentham. It follows that I agree with the trial judge that it is not for the court to decide whether or not, on whatever evidence might now be available, the development should be categorised as an ‘educational establishment’ or a ‘boarding house’ (or for that matter some other characterisation).” Thus, the NSW Court of Appeal in Londish upheld Bentham in finding that the characterisation of development was only reviewed on the grounds that the consent authority decision was one not reasonably open to it to make (Wednesbury unreasonableness, although note that Wednesbury was not cited).

¶22-050 Timbarra Protection Coalition Inc v Ross Mining

NL and Ors An extensive discussion on jurisdictional fact is contained in the judgment in Timbarra Protection Coalition Inc v Ross Mining NL and Ors [1999] NSWCA 8; (1999) 46 NSWLR 55 (Timbarra). This case considered the question of whether a conclusion on whether a DA is “likely to significantly affect threatened species” and hence, requires a Species Impact Statement (SIS) under s 77(3)(d1) of the EPA Act, was a jurisdictional fact and hence capable of redetermination de novo in judicial review, or whether it was a conclusion of fact only, reviewable by the courts on the grounds of Wednesbury unreasonableness (as was held by Talbot J at first instance in the NSWLEC). Talbot J had considered the NSW Court of Appeal decision in Londish was undistinguishable and hence, followed it. Spigelman CJ (with whom Mason P and Meagher JA agreed) held at paragraphs [28]–[42] and [94]: “[28] The issue in Londish was purely a question of characterisation. The Court applied the well established principle that whether the matter under consideration fell within the meaning of an ordinary English expression was a question of fact. To say that the issue is whether or not a proposal answers a specific statutory description identifies the issue as one of fact. It says nothing about whether or not a finding of fact by a primary decision maker can be called into question. It is not the law that the determination of whether or nor something answers a statutory description cannot be a jurisdictional fact. (Sometimes called ‘collateral fact’ or ‘condition precedent’). Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears. [29] Londish decided that a finding of fact, being the determination of whether primary facts answer a statutory description, in the context there under consideration, was not a finding of jurisdictional fact. The reasoning in that case is not determinative of the construction of other provisions, even in the same legislative scheme.

[30] In my opinion, the statutory scheme in the case of development affecting threatened species is sufficiently different from the scheme under consideration in Londish, to require separate consideration. Indeed, the entire point of the elaborate procedural mechanism that is laid down in the case of threatened species is to distinguish it from the normal case of development applications, under consideration in Londish. [31] Londish would be more obviously applicable if the issue before the Court arose under s 90(1)(3) where, amongst the considerations required to be taken into account by the consent authority, appears: ‘(c3) whether there is likely to be a significant effect on the threatened species, populations or ecological communities, in their habitats.’ [32] In exercising that statutory power, the determination by a consent authority of ‘likely to significantly affect’, is a matter incidental to the exercise of the power to grant consent. The reasoning in Londish supra, on which the applicant relied, would be more clearly relevant. [33] However, s 77(3)(d1) does not confer a power on a decision maker. It imposes a requirement on an applicant. The reasoning in Londish does not apply to such a statutory provision. [34] The issue on this appeal is whether or not the reference in s 77(3)(d1) to ‘development … that … is likely to significantly affect threatened species, populations or ecological communities, or their habitats …’ is a jurisdictional fact in the sense that if, in truth, that is the situation, no valid development application can be made without an accompanying SIS. [35] His Honour found that the determination of ‘significant effect on threatened species’ was not such a jurisdictional, fact. Rather, it was a matter upon which the Council could err within its jurisdiction. Accordingly, evidence on the subject was not admissible. [36] If the fact in issue in the present case is a jurisdictional fact,

then evidence of the existence or non-existence of that fact was admissible in the Land and Environment Court. (See eg R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1954) 82 CLR 54, 91– 92; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, 183–184; DMW v CGW (1982–83) 151 CLR 491, 510). Accordingly, if Talbot J erred in the construction of s 77(3)(d1), his rejection of relevant evidence means that this appeal must be allowed and the matter remitted to the Land and Environment Court. [37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See eg Ex parte Redgrave, Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (‘objectively’) and that the legislature intends that the absence of presence of the fact will invalidate action under the statute (‘essentiality’). (Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28 at [91]–[93]). [38] ‘Objectively’ and ‘essentiality’ are two interrelated elements determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of ‘essentiality’ will often suggest ‘objectivity’. [39] Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes ‘jurisdictional fact’ as some kind of ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way of expressing a conclusion — the result of a process of statutory construction.

[40] Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. [41] Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker in the Wednesbury sense), but not itself determine the actual existence of non-existence of the relevant facts. [42] Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig Administrative Law 3rd ed, 1994, 369–370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult. … [94] Taking all these factors into account, I have concluded that the decision as to whether or not an SIS is required plays such a significant role in the legislative scheme that it is appropriate to describe it as an ‘essential condition’ (Craig v South Australia (1994–95) 184 CLR 183, 179) or ‘essential preliminary’ (Colonial Bank for Australasia v Willan supra 443; Ex parte Toohey; Re Butler supra 283; Minahan v Baldock supra 11). It was

accordingly a jurisdictional fact which the Land and Environment Court was obliged to decide for itself.” In Timbarra the NSW Court of Appeal held: • The question of characterisation is a question of fact as to whether the matter under consideration fell within the meaning of an ordinary English expression. The question of whether a finding of fact is jurisdictional depends upon the proper construction of the statement in question. In the case of characterisation, that finding of fact was not jurisdictional. • The statutory scheme relating to development affecting threatened species is significantly different from that relating to characterisation for the following reasons: – A finding of likely significant effect on threatened species is not a matter incidental to the exercise of the power to grant a consent. The power is not conferred on the decision-maker but on the applicant. – If a DA is likely to significantly affect threatened species but is not accompanied by a SIS it is jurisdictional in that no valid DA can be made without an accompanying SIS. – If the fact in issue is a jurisdictional fact, evidence of the existence or non-existence of that fact is admissible. – The question of whether a fact is a jurisdictional fact depends on the proper construction of the statute. Parliament can make a fact a jurisdictional fact. – A fact is jurisdictional fact if it meets two requirements: • “objectivity”: it must exist in fact. • “essentiality”: the legislature intends that the absence or presence of the fact will invalidate action under the statute.

Each of these requirements is inter-related, as “essentiality” will suggest “objectivity”. Spigelman CJ’s clear exposition of what constitutes a jurisdictional fact sits uncomfortably with his distinguishment of Londish, prompting continuing doubts regarding the correctness of Londish.

¶22-060 Corporation of the City of Enfield v Development Assessment Commission In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 (Enfield), the High Court heard an appeal from the South Australian courts as to whether the characterisation of development under the Development Act 1993 (SA) was a jurisdictional fact. The High Court held that characterisation was a jurisdictional fact. None of the New South Wales cases on this issue were referred to by the High Court. The case related to whether a proposal to expand an existing liquid waste treatment plant was “general industry” or “special industry”. The primary judge, Debelle J, reviewed the characterisation de novo while, on appeal, the Full Court held that the Court on judicial review should defer to the judgment of the planning authority on the question of characterisation. Gleeson CJ, Gummow, Kirby and Hayne JJ held at paragraph [28]: “28. The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the

Commission not grant consent.” The judges then held that as a matter of construction the relevant provisions were a jurisdictional fact, stating at paragraph [38] (footnotes excluded): “38. The result is that the Full Court erred in holding that Debelle J was obliged to determine the action before him not by application of the law to the evidence, but from a standpoint that, whilst the Supreme Court should ‘reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts’, it would defer ‘in grey areas of uncertainty to the practical judgment of the planning authority’ and that what had to be shown was ‘a serious departure (in planning terms) from the requirements of the Act and Regulations’. It should be added that, contrary to the approach taken by the Full Court, in whatever form the proceedings in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the ‘jurisdictional fact’ issue upon the evidence before the Supreme Court. Accordingly, the matter will have to be returned to the Full Court for determination of the outstanding issues on the appeal from Debelle J to that Court.” The judges then considered what weight should be accorded to the conclusion of the Development Assessment Commission upon the material before it and particularly the application in Australian courts of the doctrine of “deference” from the United States of America. The judges held at paragraphs [59]–[60] (footnotes excluded): “59. Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of ‘judicial deference’ with respect to findings by an administrative body of jurisdictional facts. Of course, other considerations apply with respect to nonjurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And,

again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker’s opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decisionmaker to form the opinion in question. 60. Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility. However, there may be situations where the evidence before the court is the same or substantially the same as that before the primary decision-maker and minds might reasonably differ as to the finding properly to be made on that evidence. In that situation a court may, but need not, decline to make a different finding from that made by the primary decision-maker, particularly if the latter possesses expertise in the area concerned. Even so, in that situation, the question is not so much one of ‘judicial deference’ as whether different weight should be given to the evidence from that given by the primary decision-maker.” While Enfield was not binding authority on the question of whether decisions on characterisation under the New South Wales planning legislation were jurisdictional facts, Enfield did not sit well with Londish and increased the discomfort with the correctness of Londish.

¶22-070 Chambers v Maclean Shire Council The issue was next addressed in the NSW Court of Appeal in Chambers v Maclean Shire Council [2003] NSWCA 100 (Chambers). This case was an appeal from a challenge to the validity of development consent issued by the Maclean Shire Council for a prawn and research station at Palmers Island in the lower Clarence Valley. The issue in the proceedings was whether the development was prohibited development under State Environmental Planning Policy No 62 — Permissible Aquaculture Development (SEPP 62).

SEPP 62 provided that pond-based aquaculture is permissible if it complies with certain requirements including that the proposal had to be “within an area that is above 1 metre AHD and below 10 metres AHD”.2 The issue in dispute was whether the word “area” applies to the site to be used for aquaculture or the district in which the site is to be found. At first instance, Sheahan J in the NSWLEC held in accordance with Londish that it was sufficient to the Council to show that it was reasonably open to it to determine the site was not within an area that was above one metre and below 10 metres AHD. Sheahan J held it was reasonably open for the Council to so find. Ipp JA (with whom Sheller JA agreed) held at paragraphs [42]–[48]: “42. Mr Robertson submitted that Sheahan J had erred in concluding that the principles laid down in Londish v Knox Grammar School were applicable. He contended that, having regard to the particular legislation, there could only be one correct meaning of ‘area’ and the question of the meaning of ‘area’ could not be answered on the basis of whether the Council’s construction was ‘reasonably open’, but had to be answered on the basis of the correct meaning. Mr Maston, on the other hand, supported his Honour’s reasoning. 43. The provisions in Div 1 of Pt 4 of the Act relating to the threefold classification in regard to the carrying out of developments were made by an amendment to the Environmental Planning and Assessment Act which commenced on 1 July 1998 and postdated Londish v Knox Grammar School. Section 101 of the Act, prior to that amendment, provided that the Minister might give a direction to a consent authority to refer ‘to the Secretary for determination by the Minister’ a development application for a prohibited development. It was then open to the Minister under s 100A(2) to grant consent to a prohibited development. Thus the Act, prior to the 1998 amendment, contemplated that a development application for a prohibited development could be lodged with a consent authority, not being the Minister, and the Minister could then direct that the development application be

referred to him or her for determination. In that way, a development application for a prohibited development made to a council (being a consent authority) was not without legal utility. 44. The position changed, however, once the Act was amended in 1998. As I have stated above, the Act as amended contains no procedure whereby a development application for a prohibited development can be made to a consent authority, not being the Minister. I repeat my conclusion that a development application to a council for a prohibited development is not an application in terms of the Act in its present form. In my view, such an application has no legal force or effect. 45. Mr Robertson submitted that, by the 1998 amendment, the classification of a development, that is, whether it is permissible or prohibited, ‘has now become jurisdictional’. He submitted that, as an application for a prohibited development was a nullity, a council had no power to consent to it. On that basis, the question of power was not to be determined by reference to what was reasonably open to the consent authority, but by what was objectively correct. 46. In my opinion, Mr Robertson’s submission should be accepted. The scheme of the Environmental Planning and Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt 4 of the Act) rests upon a council’s own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149. 47. I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 that ‘if the factual reference is preliminary or

ancillary to the exercise of a statutory power’, the conclusion is likely to be a jurisdictional fact. The relevant factual reference in this case is whether the minimum performance criteria are met. Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council. 48. Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc v Ross Mining NL at 63. In my opinion, Sheahan J erred in applying the approach adopted therein. The question whether the minimum performance criteria were met involves a jurisdictional fact and, according to the relevant legislation, must be answered objectively — not by reference to the subjective opinion of the Council.” Thus, in Chambers, Ipp JA was able to find that Londish was no longer applicable and that decisions by a consent authority on characterisation were henceforth jurisdictional facts, and therefore capable of redetermination by the courts de novo. The reasoning of Ipp JA for this change is based on the changed legislative provisions which made little material change and, is at best — obscure, although it conveniently disposed of Londish without a finding that it was wrongly decided. Footnotes 2

CCH comment: “AHD” is the abbreviation for Australian Height Datum.

¶22-080 Woolworths Ltd v Pallas Newco Pty Ltd & Anor Despite the judicial side-step in Chambers, the issue returned again before the NSW Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 (Pallas Newco). This case related

to an appeal from a decision on an application by Pallas Newco to declare a development consent granted by Ashfield Municipal Council to Woolworths Ltd for a “drive-in take-away establishment” void and of no effect. The issue in the proceedings was whether the characterisation of the development involved a jurisdictional fact and hence, it was a question to be determined by the court on the evidence before it, uninfluenced by the opinion of the Council. As the NSW Court of Appeal was called upon to reconsider whether Londish was correctly decided, it reconvened as a bench of five judges (Spigelman CJ, Mason P, Handley JA, Sheller JA and Cripps AJA) instead of the original bench of three. The NSW Court of Appeal unanimously held that the characterisation of a DA to establish permissibility under an EPI is a jurisdictional fact which the NSWLEC must determine for itself. Spigelman CJ held at paragraphs [5]–[13], [15]–[19], [29]–[30], [32], [45]–[53], [56], [61]–[64] and [86]–[89] as follows: “5. The case law and legal literature contains a great deal of terminological confusion about the concepts of ‘jurisdiction’ and ‘jurisdictional facts’. The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 [sic. Should read “(2000) 199 CLR 135”] at [28]: ‘The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.’ 6. The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional. 7. What is involved is a specific application of the fundamental

principle of judicial review of statutory decision-making, which Brennan J expressed in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36: ‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.’ 8. This has become the most frequently cited statement of principle in subsequent judgments in the High Court. (See, e.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth (1999) 197 CLR 510 at 579–80, [195]; City of Enfield at [43].) 9. The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of a jurisdiction. (See, e.g. Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163] per Hayne J.) Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred. 10. The requisite approach is the same as the High Court determined was required in the context of discussing the terminology of ‘mandatory’ or ‘directory’ provisions, previously applied to breach of procedural conditions. The joint judgment of the Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355 said at [93]: ‘The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’

11. The joint judgment in Project Blue Sky also said: ‘[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.’ 12. This is the same general approach as would later be adopted in City of Enfield to the determination of whether a fact was ‘jurisdictional’. 13. This was not the approach adopted by this Court in Londish v Knox Grammar School (1997) 97 LGERA 1. [Excerpt previously cited] … 15. It is particularly significant that Londish does not contain any analysis of the legislative scheme of the character undertaken, for example, in City of Enfield or Timbarra. 16. Furthermore, as Stein JA acknowledged by his reference in Londish to his article ‘Relationship of Tribunals to the DecisionMaker, Deference to Agency Expertise — The Experience of the Land and Environment Court in New South Wales’ in Robyn Creyke (ed) Administrative Tribunals: Taking Stock, Canberra 1992, the line of authority in the Land and Environment Court, which commenced with his Honour’s own judgment when a judge of that Court in Bentham v Kiama Municipal Council (1986) 59

LGRA 94, was influenced by considerations of deference. In City of Enfield at [39]–[50], the High Court expressly rejected the proposition that Australian law contained any doctrine of deference. 17. Finally, in neither the line of authority in the Land and Environment Court, nor in Londish itself, was there any reference to the earlier decisions at first instance and in this Court in Perrin v Peters (1983) 48 LGRA 123 and on appeal (1983) 52 LGRA 198. The issue was whether tennis courts and a clubhouse constituted the permissible use for a ‘sportsground’. Council gave consent. Perrignon J dismissed an appeal. This Court, consisting of Samuels, Mahoney and Priestley JJA, allowed the appeal. Both at first instance and on appeal their Honours assessed the facts for themselves. This Court held, on the evidence, that the particular development was not for use as a ‘sportsground’. The approach adopted was inconsistent with the proposition that the Land and Environment Court, or this Court, was restricted to determining whether it was reasonably open to the Council, on the evidence before the Council, to classify the development as being within the permissible use. 18. For these reasons, and by reason of the views expressed in Chambers v Maclean Shire Council (2003) 57 NSWLR 152 esp at 159–160, the Court should reconsider Londish. A bench of five has been convened to do so. 19. The issue before this Court is whether the characterisation of a proposed development in an environmental planning instrument under the Environmental Planning and Assessment Act 1979 is so fundamental to the operation of the legislative scheme that, unless the proposed development is, as a matter of objective fact, accurately characterised as a use which is permissible, then a purported consent is not valid. … 29. These proceedings raise the issue of what, if any, is the effect of a consent under Div 2 of Pt 4 if, as a matter of objective fact, the development is a prohibited development to which, on a literal

interpretation of s 77(a), the Division does not apply. Indicators of Jurisdictional Fact 30. The first indicator arises from the scope and purpose of the legislative scheme creating zones and identifying permissible and prohibited uses within zones. The purpose of such zoning is to segregate uses from each other and to concentrate particular uses within specific areas. This process of segregation and concentration serves a variety of social and economic purposes which are considered through the detailed stages of the promulgation of a local environmental plan. … 32. The second indicator is the terminology of ‘prohibition’ itself and the statutory implications of development being prohibited. The very word ‘prohibited’ has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction. … … 45. A third indicator in the legislative scheme under consideration is found in provisions of the Act which increase the flexibility of the legislative scheme in specific circumstances. The significance of these provisions for present purposes is that they operate on the assumption that a prohibition on use means what it says. The following sections appear to be of this character. … 46. Finally, as the Privy Council identified in a seminal authority on this area of the law (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442–443), there is a distinction between a fact that is an ‘essential preliminary to the decision-making process’ and a ‘fact … to be adjudicated upon in the course of the inquiry’. (See also, e.g. Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 at 53; Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33.) 47. The word ‘preliminary’ does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process. A decision-maker

may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision-making process. 48. The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional. (See Colonial Bank of Australasia v Willan at 443; R v Nat Bell Liquors Limited [1922] 2 AC 128 at 158; Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 300; Ex parte Hulin; Re Gillespie at 33; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 539; Timbarra Protection Coalition at [44] and [50]–[60]. See also M Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Rev 17 at 34.) 49. A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively. 50. Section 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining to grant or withhold consent under s 80 of the Act. It is not necessary to set them out here. However, the particular facts and matters which determine whether the proposed development falls within a classification do not inevitably arise in the course of considering the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic to the process of determining whether consent should be given. No doubt the features of the development that determine the classification have implications for the s 79C considerations, but that does not mean that the classification is a matter upon which a consent authority must adjudicate when making a s 80 determination. 51. Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of any environmental planning

instrument, but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification of ‘drive-in take-away establishment’ appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s 79C, in the course of making a determination under s 80. 52 That this is so is strongly suggested by 77(a), quoted above, which provides that the Division, including all of the steps from s 79A to s 80, only applies if the development may not be carried on except with consent. Unless the development proposal can be accurately said to fall within the classification, none of the steps are applicable. In any event, in my opinion, classification is by its nature extrinsic or ancillary to the process of evaluation under s 79C and s 80. Indicators Against Jurisdictional Fact 53. The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description. … 56. Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction. … 61. In each case it was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed.

62. In the present case, the determination of whether a proposed development is a ‘drive-in take-away establishment’ raises questions of fact and degree but not of such a character as to suggest that Parliament intended that such a characterisation should turn on the opinion of the consent authority. This may be an issue on which reasonable minds may differ, but there is nothing to suggest that the decision requires any particular expertise or local knowledge, let alone that it turns in any way on contestable value judgments. It is a conclusion about which an independent non-expert impartial observer could make an assessment as to whether it is right or wrong. It is not the kind of test which, by its very nature, is unlikely to be jurisdictional. 63. The most significant element suggesting that classification is not a jurisdictional fact arises from the degree of inconvenience that can arise if a consent which is valid on its face and, indeed, is entered upon a register of consents maintained by the Council under reg 264 of the Environmental Planning and Assessment Regulation 2000, cannot be relied upon either by the person receiving consent or by all those dealing with that person in relation to the land. 64. A development consent has an in rem quality and attaches to the land. (Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 at 279; Auburn Municipal Council v Szabo (1988–89) 67 LGRA 427 at 433–434; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407; House of Peace v Bankstown Municipal Council (2000) 48 NSWLR 498.) … Conclusion on Jurisdictional Fact 86. Balancing the factors in favour of and those against a conclusion that the relevant classification is jurisdictional, leads me to conclude that it is. 87. The First Respondent commenced these proceedings within the three month period for which s 101 provides. Therefore, the

privative clause does not operate. 88. On the above analysis his Honour was correct to proceed on the basis that the issue of characterisation that arose involved a jurisdictional fact. Accordingly, his Honour had to determine the case on the basis of the evidence before the Court. He was not confined to the evidence before the Council as the primary decision-maker. (See, e.g. City of Enfield at [38] and [50].) His Honour was entitled to give weight to the opinion of the Council. (See City of Enfield at [45]–[50].) The Court did not receive any submissions that his Honour failed to do so in any relevant respect. In any event, his Honour had available to him significant additional evidence. 89. The grounds of appeal on the jurisdictional fact issue should be dismissed.” In concluding that characterisation of a development for the purposes of permissibility was a jurisdictional fact, Spigelman CJ balanced the factors in favour and against such a conclusion. Factors indicating a jurisdictional fact Spigelman CJ identified the factors which indicate a jurisdictional fact as follows: • The legislative provisions are based on segregation and distinctions between land uses where greater flexibility would not have been envisaged by Parliament and hence, the criteria for such distinctions are likely to be jurisdictional facts. • The use of terminology such as prohibition has a level of force consistent with a jurisdictional fact. • The existence elsewhere in the legislative scheme of provisions to provide for flexibility, such as the provisions relating to lodging DAs even though such development may only be carried out if an EPI is amended. • There is a distinction between a fact that is an essential preliminary to the decision-making process and a fact to be

adjudicated upon in the course of the inquiry, with the former type of fact more likely to be jurisdictional. Spigelman CJ also identified the factors which indicate a matter is not a jurisdictional fact as follows: • The extent of the element of fact and degree involved in determining whether or not a particular proposal meets the statutory description. Matters requiring consideration of fact and degree are more likely to have been intended by Parliament to be determined by the decision-maker and hence any error is an error within jurisdiction, not an error going to jurisdiction. • A wider range of matters of considerable complexity involving the formation of value judgments suggests a matter is not a jurisdictional fact, although consideration of the overall statutory context is important to decide whether Parliament intended that the fact in question both objectively exist and can be essential, irrespective of whether there is an element of fact and degree or judgment to determine whether the fact exists. • The extent of inconvenience suffered if a decision such as a development consent can be declared invalid based on judicial review of a jurisdictional fact, recognising that courts have a discretion to grant relief. Mason P elegantly and succinctly expressed his contrition for previous findings at paragraphs [137]–[139] as follows: “137 Since I was a member of the Court that decided Londish v Knox Grammar School (1997) 97 LGERA 1 and Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333 I should pray in aid Bramwell B’s statement that ‘the matter does not appear to me now as it appears to have appeared to me then’ (Andrews v Styrap (1872) 26 LT(NS) 704 at 706. See also McGrath v Kristensen 340 US 162, 177–8 (1950) for a collection of additional judicial palinodes). 138. The reasons of Ipp JA in Chambers v Maclean Shire Council

(2003) 126 LGERA 7 at 16 offer a powerful basis for reconsidering Londish. His Honour distinguished Londish because of changes in the Environmental Planning and Assessment Act 1979 made in 1998. I doubt however that those changes had material impact on the matter presently at issue (see Curry [sic. Should read “Currey”] v Sutherland Shire Council (2003) 129 LGERA 223 at 230–1 per Spigelman CJ). 139. The Chief Justice’s most compelling survey of principle, policy and precedent explains why Londish must be reconsidered and now departed from.” Handley JA agreed that characterisation for permissibility is a jurisdictional fact (paragraph [140]). Sheller JA held with some reluctance at paragraphs [175] and [179]–[181]: “175. The specific question for this Court is whether the reasoning in Londish remains good after the decision in Enfield or must be re-visited and further, whether the decision in Chambers accords with Enfield. If, as the appellant to the Land and Environment Court claimed, the council had consented to prohibited development, did it follow that the grant of consent was beyond the council’s authority and was the Land and Environment Court correct in deciding that, on evidence put before it, or could the appeal only succeed if the opinion formed by the council that the development was not prohibited was vitiated by irrelevant considerations or was one not reasonably open to the council on the material before the council? … 179. The purposes set out in 2 are stated in very general terms. In many, a precise definition defies lexicography. In the case in point, ‘take-away’ means an establishment where take-away food is sold as distinct from a restaurant or café where food is prepared to be eaten on site. If the concept extends to an establishment selling liquor, it means an establishment where liquor is sold and taken away by customers, that is to say any liquor store. Drive-in means catering for customers in cars, which might be thought to intend that customers are served in cars

brought by them onto the premises. How does one balance between such customers and customers who leave their cars before being served or who park off the premises before entering the premises or customers who walk onto the premises before they are served? I am not comfortable with the idea that any Court can ‘correctly’ determine whether an establishment, having the characteristics of the establishment here in question, is or is not a drive-in take-away establishment, except in the obvious case, as where customers proceed by car up a drive-way and are served food through the window of the car to be eaten off the premises. 180. There is much to be said, in my opinion, for the approach expressed by Stein JA in Londish. I accept, as the Chief Justice points out in his reasons for judgment, which I have had the benefit of reading, that in part Stein JA’s conclusion may have flowed from an acceptance of the doctrine of deference which has now been rejected in the High Court. But the point Stein JA made is particularly true of the description of the development here in question. The decision by a council may not only be reasonably open but one regarded by many as correct. A contrary decision by a Court on review may also be no more than one reasonably open and thought by others to be correct. 181. However, I do not think there is any sound basis upon which I can distinguish the characterisation of the criterion which makes development here permissible, that is to say, use as a drive-in take-away establishment from the criterion of non-complying development in the Enfield case. Both are criteria, the absence or presence of which mandates, a particular outcome. As already pointed out, s 76B of the EPA Act states that if an environmental planning instrument provides that a development cannot be carried out on land with or without development consent, and correctly the development proposed here was other than that of a drive-in take-away establishment, it is prohibited, regardless of consent. Thus, the council on that correct understanding of the meaning of the words had no power to consent to the appellant’s application.”

Cripps AJA held at paragraphs [216]–[218]: “216. The question remains, however, whether the decision of Talbot J should be set aside on the ground that he wrongly determined that the characterisation of the use was a ‘jurisdictional fact’. If characterisation was a jurisdictional fact his Honour’s finding was open and should not be disturbed. 217. In a series of cases in the Court of Appeal and in the Land and Environment Court it has been held that, generally speaking, the characterisation of the purpose of development does not involve a jurisdictional fact. That is to say, it has been held that on a proper construction of the planning legislation Parliament intended that the characterisation of the purpose of development was to be left to Council, the primary decision maker, and its decision would not be set aside otherwise than in accordance with conventional judicial review principles. (See Londish v Knox Grammar School (1997) 97 LGRA 1; Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGRA 333. See also Hunter Valley Vineyards Association v Council of the City of Cessnock [1998] NSWLEC 76; Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38; Taylor v Hornsby Shire Council (1990) 69 LGRA 281 and Scott v Wollongong City Council [1986] NSWLEC 85). There have been other decisions (referred to by the Chief Justice) when the Court has determined for itself the characterisation of purpose. 218. I have not found the resolution of the question, whether the characterisation of purpose in the present case was a jurisdictional fact, an easy one. I was concerned that great inconvenience could follow if the opinion of the court could trump the opinion of a council, in circumstances where, as I thought, s 101 would have no operation — particularly in the light of the provisions of ss 123 and 124 of the Act. I thought there was much to be said for the view that the legislature had left the characterisation of purpose to the consent authority subject, of course, to Wednesbury unreasonableness. And that was my tentative view before the case was reargued before a bench of five.”

¶22-090 Principles relating to judicial review of decisions of a consent authority on the characterisation of development The key principles derived from the discussion relating to judicial review of decisions of a consent authority on the characterisation of development to establish whether it is permissible or prohibited are: Principle 1: The characterisation of a DA to establish permissibility under an EPI is a jurisdictional fact, being a fact the existence of which enlivens the power of a decision-maker to exercise a discretion (Pallas Newco). Principle 2: Because a decision of a consent authority on the characterisation of a DA to establish permissibility under an EPI is a jurisdictional fact, the courts in exercising judicial review of such a decision are entitled to redetermine the question de novo and are not confined to the evidence before the council in determining this question (Pallas Newco).

OBJECTIVES ¶23-010 Objectives clauses Clauses providing for objectives in Local Environmental Plans (LEPs) are required by s 55(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Prior to this provision being enacted by the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW), s 25(a) required all Environmental Planning Instruments (EPIs) to include a statement of aims and objectives. LEPs usually contain a series of general objectives for the plan as a whole, as well as specific objectives for each zone provided for in that LEP. The zone objectives are usually specifically referred to in the clause in the LEP which establishes the Land Use Table. In the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument), cl 2.3 provides for the adoption of the

Land Use Table as follows: “2.3 Zone objectives and land use table [compulsory] … (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. …” In cl 2.3 of the Standard Instrument, subclause (2) refers to the objectives in each zone and provides that the consent authority must have regard to the zone objectives in determining a development application (DA). The Standard Instrument provides for standardised zone objectives for each of the 34 zones contained in it. Some examples of the zone objectives contained in the Standard Instrument are as follows: “Zone RU1 Primary Production 1. Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within the zone and land uses within adjoining zones.” “Zone R1 General Residential 1. Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.” “Zone B3 Commercial Core 1. Objectives of zone • To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling.” “Zone IN1 General Industrial 1. Objectives of zone • To provide a wide range of industrial and warehouse land uses. • To encourage employment opportunities. • To minimise any adverse effect of industry on other land uses. • To support and protect industrial land for industrial uses.” “Zone E2 Environmental Conservation 1. Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values.” An issue of note is that the zone objectives contained in the Standard

Instrument are highly generalised and often lacking specificity, such as to provide little guidance to a consent authority in undertaking a merit assessment of DAs within the zones. This is highlighted by the limited differences between zone objectives within the same broad category of zones. Where an LEP is based on the Standard Instrument, the zone objectives from the Standard Instrument are usually replicated without addition. This is a contrast to often more specific objectives in LEPs prepared prior to the Standard Instrument, such as in the cases discussed later in this section. When this is combined with the use of zone objectives as a head of consideration, rather than a requirement for the consent authority to be satisfied as to consistency with the zone objective, the Standard Instrument dilutes any meaningful role of zone objectives in the decision-making process.

¶23-020 Models for objectives clauses The provision in the Standard Instrument regarding the role and function of zone objectives provides a new mandatory formula. Prior to the adoption of the Standard Instrument, the clauses in LEPs adopting the Land Use Table varied considerably. Some of the different models for clauses relating to zone objectives are covered in the following paragraphs: (1) Model requiring regard to zone objectives This is the model now utilised in the Standard Instrument. A previous example of the use of this model is cl 12 of the Parramatta City Centre LEP 2007 which provided as follows: “12 Zone objectives and land use table … (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.” A minor variant of this model with the same effect is in cl 9 of the Marrickville LEP 2001 (now repealed) which provided as follows:

“9 Zone objectives and development control The objectives of the zone are required to be taken into consideration by the consent authority in determining whether to grant development consent to a development application relating to land within that zone.” Despite the minor variation in wording, both of these have the same meaning. (2) Model requiring regard to consistency with zone objectives This model is a variant on the head of consideration model of simply having regard to the zone objectives. In this model, regard is required not to the zone objectives but whether the development is consistent with the zone objectives. Whether this variant has any legal effect greater than the simple head of consideration model is a moot point. An example of this model is cl 9 of the Nymboida LEP 1986 as follows: “9 Zone objectives and development control table … (3) In considering any development application made under this plan, the Council shall take into account whether the carrying out of the development the subject of the application is consistent with the objectives of the zone within which the development is to be carried out.” (3) Model requiring precondition of objective consistency with zone objectives Under this model a stronger force is given to the zone objectives requiring the consent authority to not grant consent to development unless the development is “consistent” with the zone objectives. It is noted that consistency is expressed as an objective standard rather than something in the subjective opinion of the consent authority. An example of this model is cl 9 of the Ballina LEP 1987 which provides as follows: “9 Zone objectives and development control table

… (7) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.” (4) Model requiring precondition of subjective consistency with zone objectives Under this model, the consent authority is not to grant consent to development unless the consent authority is of the opinion that the development is consistent with the zone objectives. Hence, this model requires consistency, but that consistency is in the subjective opinion of the consent authority. An example of this model is cl 9 of the Holroyd LEP 1991 as follows: “9 Zone objectives and development control table … (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out.” (5) Model requiring precondition of subjective no inconsistency with zone objectives Under this model, the consent authority is not to grant consent to development which in the opinion of the consent authority is inconsistent with the zone objectives. This model does not require positive consistency, but rather the slightly lesser standard of “no inconsistency”. The negative “no inconsistency” is a lesser standard than a positive “consistency” text. In this model the test is subjective, namely in the opinion of the consent authority. An example of this model is the North Sydney LEP 1989 as follows:

“9 Development control table … (2) Where the Table to this clause specifies the objectives of a zone or zones, the council shall not consent to development which, in its opinion, is inconsistent with the objectives specified in relation to the zone in which the development is proposed to be carried out.” (6) Model requiring no consideration of zone objectives Under this model, the zone objectives have no specific work to do. Their inclusion in the LEP appears to be of decorative effect only. An example of this is the Narrabri LEP 1972 where each zone has zone objectives, but cl 9 which establishes the Land Use Table does not provide any work for the objectives to do. The meaning and application of the objectives of a zone in an LEP clearly varies depending upon which of the various models for the role of objectives clauses is utilised. This needs to be borne in mind during the following discussion on the cases relating to zone objectives.

¶23-030 Coffs Harbour Environment Centre Inc v Coffs Harbour City Council — zone objectives The leading case on zone objectives is Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (Coffs Harbour Environment Centre), a decision of the NSW Court of Appeal. The Council proposed to construct an ocean sewerage outfall on coastal public recreation reserve on “Look-At-Me-Now Headland” north of Coffs Harbour. The subject land was zoned 6(a) under the Coffs Harbour LEP 1988. The proposal was controversial and the Coffs Harbour Environment Centre commenced civil enforcement proceedings to restrain the construction of the outfall. The Environment Centre contended the proposal was prohibited development in the 6(a) zone. The relevant provisions in the Land Use Table for the 6(a) zone in the Coffs

Harbour LEP 1988 were as follows: “1. Aims of zone The aim is to identify publicly owned land which is capable of being used for recreational purposes. 2. Objectives of zone The objectives are as follows: (a) to enable the development of land within this zone for recreation purposes; (b) to enable the development of land within this zone for purposes associated with recreation. 3. Without development consent Advertising structures erected in accordance with clause 17(1); any purpose authorised by Division 2 or 3 of Part XIII of the Local Government Act 1919; drainage; parking; roads; works for the purpose of landscaping gardening or bushfire hazard reduction. 4. Only with development consent Any purpose other than a purpose specified or referred to in Item 3 or 5. 5. Prohibited Except as otherwise provided in this Table, all development unless the council is satisfied that the carrying out of the development is generally consistent with one or more of the objectives of this zone.” The Council contended that it was open to the Council to be satisfied that the carrying out of the development was generally consistent with the use of the land for recreational purposes, and hence the development was permissible with consent. Clarke JA (with whom Sheller JA and Hope AJA agreed) held that the facts did not support the Council’s contention. Clarke JA held at p 192–193 as follows: “The sewerage works proposed by the first respondent could not

be regarded as promoting, or as ancillary to, that use of the headland and as the fencing clearly excludes members of the public from large sections of it the conclusion seems inescapable that neither the fencing nor the works could be regarded as permitted developments. Mr Lloyd submitted, however, that cll 4 and 5 of zone 6(a) propounded a wider test. Developments which ‘the council is satisfied are generally consistent with one or more of the objectives of the zone’ were permissible. In these circumstances the court could conclude that the works were prohibited only if the facts demonstrated that no responsible body could come to the conclusion that the carrying out of the development was generally consistent with the objectives of the zone: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; 45 LGR 635 and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40–42. Counsel then developed this submission by pointing out that dictionary definitions of ‘consistent’ include ‘compatible’ which itself meant ‘mutually tolerant’. In this case, the submission ran, the sewerage works would, when completed, all be underground. They were, therefore compatible with the use of the headland for public recreation. It followed that it was open to the first respondent to conclude that the works were generally consistent with the objectives of the zone. If so, neither the sewerage works nor the temporary fencing during the construction stage were prohibited. The submission places a construction on par 5 of the zone 6(a) table which is, in my opinion, far too expansive. Under par 3 specific developments are permitted without consent. They are, in general, works which may be regarded as ancillary to the public enjoyment of the area. Paragraph 4 and 5 then permit other developments provided they are capable of being regarded as generally consistent with a public recreational use of the area. There are many developments which may not fall within par 3 which nonetheless may be compatible with that use of the land

but the construction of a sewerage treatment plant could not possibly be regarded as one of them. It is not suggested that if the plant was being constructed above ground level it would be permissible under the table. Nor could it be. What is said is that it is being built underground and will cause only minimal interference to the recreational use of the land and is, for this reason, compatible with the zone objectives. In my opinion it is a fallacy to suggest that because the proposed works will only inhibit public access to the land for a temporary (albeit lengthy) period and thereafter interfere only marginally with the public enjoyment of it they are compatible with the land’s use for public recreation. During the period while the fences are in position, and protecting the construction site, the development prevents public access to large parts of the relevant land. Such a use could hardly be described as consistent with the objectives of the zone. When the works are commenced there will remain, at least, the areas covered by the iron grids which will not be freely available to the public for recreational use. In my opinion, there is simply no basis upon which it could be said that these works are ‘generally consistent’ with public recreational use. While it would not be desirable to endeavour to define the ambit of pars 4 and 5 it [p 193] seems to me that they are designed to permit developments which may not promote public recreation in a strict sense but which may be complementary or ancillary to a particular recreational use of the land. Whatever is their precise ambit the paragraphs do not permit an antipathetic development whether or not it is so placed as to minimise the interference with public recreational use. Quite apart from these considerations the fact remains that for a lengthy but indeterminate period the public will be excluded from large sections of the land while a sewerage plant is being

constructed. The erection of the fences could not be regarded as incidental to a development of the land for public recreation purposes and itself could not be regarded as permitted with consent under the table.” The NSW Court of Appeal in Coffs Harbour Environment Centre provided some conclusions regarding the meaning of “generally consistent” with zone objectives. Clarke JA held that for development to be “generally consistent” with zone objectives it should meet the following principles: • A development that is generally consistent with zone objectives does not need to promote the objective concerned strictly, but also encompasses development which may be complementary or ancillary to developments which promote the objective concerned. • A development is not generally consistent with zone objectives if it is antipathetic development to those objectives, irrespective of whether efforts have been made to minimise the extent to which it is antipathetic.

¶23-040 Schaffer Corporation Ltd v Hawkesbury City Council — consistency with zone objectives The issue of whether a DA is consistent with zone objectives was considered further by Pearlman CJ in the Land and Environment Court of NSW (NSWLEC) in Schaffer Corporation Ltd v Hawkesbury City Council (unreported decision of Pearlman CJ in the NSWLEC, No 10476 of 1991 and 10136 of 1992, 4 September 1992)1 (Schaffer). This case was a merit appeal by an applicant under s 97 and an objector under s 98 of the EPA Act. The decision of Pearlman CJ was overturned on appeal in Egan v Hawkesbury City Council (1993) 79 LGERA 321 on different grounds. However, Pearlman CJ in this case provided a discussion in relation to the question of consistency with zone objectives. Pearlman CJ held as follows: “The guiding principle, then, is that a development will be generally consistent with the objectives if it is not antipathetic to

them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.” The key conclusion of Pearlman CJ in Schaffer is that a development will be generally consistent with zone objectives if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. Footnotes 1

CCH comment: This refers to p 27 of (1992) 77 LGRA 21.

¶23-050 Kanne Pty Limited v Botany Bay City Council In Kanne Pty Limited v Botany Bay City Council [2001] NSWLEC 163 (Kanne), McEwen AJ in the NSWLEC considered a merit appeal in relation to the construction of a three storey residential flat building at Bunnerong Road, Hillsdale. The subject land was zoned 3(a) General Business under the Botany LEP 1995. Clause 10(3) of the LEP provided: “The Council may only grant consent to the carrying out of development of land to which this land applies if the Council is of the opinion that the carrying out of development is consistent with the primary objective of the zone in which the development is proposed to be carried out. In granting consent, the Council must take into account other relevant objectives of the plan in which the development is proposed to be carried out.” McEwen AJ considered the issue of the zone objectives under the heading of “Permissibility” before considering the merits of the application. He held at paragraphs [25], [28]–[29] and [43] as follows: “25. On behalf of the applicant it was put that the injunction in cl 10(3) to only grant consent if the opinion be formed that the proposal would be ‘consistent with the primary objective of the zone…’, ought be construed by inquiring whether or not the

proposal was antipathetic to the stated objectives. However read in the context of the need to provide ‘a range of retail business and professional service activities…’, the proposal is not merely neutral or antipathetic in achieving that objective, but in the context of the need for those activities to ‘reinforce the historical development of business and shopping locations’, it can be seen to be incompatible with, and contrary to, the achieving of those objectives. ... 28. In the instant case it is clear on the material adduced in evidence that the present proposal will not in any true or real sense ‘promote or be ancillary to’ the primary objective of ‘reinforcing’, or ‘providing professional service activities’. The Council submitted that a residential development might promote the primary objective or be ancillary to it if it provided a financial inducement for the development or promotion of a business or shopping development — in the manner in which it is proposed for the redevelopment of Southpoint. But that is not the case with the present proposal. … Secondary Objectives 29. The ‘other relevant objectives’ under cl 10(3) of the LEP are listed as ‘secondary objectives’. If a consent is to be granted ‘the objectives of the plan and the zone’ and in particular those secondary objectives, have to be taken into account when reaching a decision as to whether or not the proposal is consistent with the primary objectives of the zone. … 43. For the forgoing reasons I have come to the view that the proposal does not meet the primary and secondary objectives of the zoning of the subject land, and does not comply with the objectives in cl 5 of the LEP. Specifically, (i) the proposal does not ‘reinforce the historical development of business shopping locations’ in the area;

(ii) there is a substantial risk that if the proposal proceeds it would be ‘likely to prejudice the commercial/residential development’ of the adjoining shopping centre; (iii) it does not enhance ‘the viability and general amenity’ of commercial centres, and; (iv) nor does it encourage or contribute to economic growth and employment. For these reasons I would dismiss the appeal. However if this analysis and conclusion is wrong I should express my view on the arguments which were put in relation to the merits of the proposal.” Kanne is a good example of where application of a requirement for consistency with zone objectives for a development otherwise permissible under the Land Use Table results in the application being prohibited. It is also an example of how the drafting of specific zone objectives can lead to an outcome that a development can only comply with the zone objectives or be antipathetic to them, with no option that it could be neutral by the use of active verbs such as “reinforce” and “promote”.

¶23-060 Schroders Australia Property Management Ltd v Shoalhaven City Council — meaning of consistent with zone objectives The issue of the meaning of consistent with zone objectives was raised in Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (Schroders) before the NSW Court of Appeal, relating to the approval of a shopping centre at Nowra. Clause 9(3) of the Shoalhaven LEP 1985 provided: “9(3). Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on or of land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the

objectives of the zone within which the development is proposed to be carried out.” Further, in the relevant 3(g) zone, the zone objectives were: “… to provide a strategic development area providing both for a variety of uses and for varying combinations of such uses including density residential, commercial and tourist combinations but not including ordinary retail that would compete with the local retail centre …” In relation to the role of the zone objectives, the appellant raised two issues, as follows. Issue 1: Did the Council collectively form the opinion that the proposed development is consistent with the zone objectives? Where an EPI requires that a consent authority cannot grant a consent unless it is satisfied as to something or has formed an opinion in relation to some matter, such formulations established a condition precedent to a valid grant of consent. A failure of the Council would result in the grant of consent being invalid. This broader issue of conditions precedent to the exercise of a power by a planning authority will be discussed later. However, in the context of zone objectives, where an LEP requires a consent authority to form an opinion as to the consistency of a DA to zone objectives, such a provision establishes a condition precedent to the exercise of the power to grant consent. If the requisite opinion is not formed, then the condition precedent cannot be satisfied and the resulting exercise of power to grant consent is invalid. However, where an LEP requires the consent authority to have regard to the zone objectives in the determination of a DA, this is not a condition precedent to the exercise of a power, but a head of consideration which must be taken into account in the valid exercise of the power. A failure to take into account a mandated head of consideration may equally result in invalidity of a consent. However, the steps required to comply differ, with a condition precedent required to be addressed and satisfied prior to the exercise of the power, while a head of consideration is addressed as part of the

exercise of the power. In addition, the opportunities for judicial review differ, as shown below: • For a head of consideration, judicial review is available on two grounds: (1) failure of the decision-maker to take into account the head of consideration, and (2) whether the decision, while taken with regard to the relevant head of consideration, is manifestly unreasonable. • For a condition precedent, judicial review is available on three grounds: (1) failure of the decision-maker to determine the condition precedent before making the decision subject to the condition precedent (2) whether the condition precedent was actually satisfied in the material before the decision-maker when making the decision on the condition precedent, and (3) whether the decision on the condition precedent is manifestly unreasonable. In Schroders, the Court was not satisfied as a matter of fact that the Council had failed to form the necessary opinion. Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) said at paragraph [7]: “[7] Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the 3(g) zone. a failure to form such an opinion would result in the grant being invalid: Franklins Ltd v Penrith City Council [1999] NSWCA 134.” Of interest to how the collegiate body or government agency or Minister can establish that a matter was considered in paragraph [67] of Ipp JA’s judgment as follows:

“[67] The terms of Mr Webster’s advice made it crystal clear that the decision was for the Council itself. There is no direct evidence that the councillors, individually, had read Mr Webster’s advice. Nevertheless, material in the possession of the Council will, generally, be treated as being in the possession of the councillors: Minister for Aboriginal Affairs v Peko-Wallsend Ltd 1986 162 CLR 24 at 31 per Gibbs CJ.” Issue 2: Could a reasonable Council have formed the opinion that the DA was consistent with the zone objectives? Clause 9(3) of the Shoalhaven LEP required that the Council form the opinion that the development is consistent with the zone objectives. As such, the test was a subjective one, not objective. As a result, the Council’s decision was only subject to judicial review of the grounds of reasonableness. In this context, the Court considered the meaning of consistent. Ipp JA said at paragraphs [86]–[89]: “[86] C19(3) provides that the Council shall not grant consent to a development unless it is of the opinion ‘that the carrying out of the development is consistent with the objectives of the zone [in question]’. [87] The objectives of the 3(g) zone are to provide a strategic development area providing for a variety of uses but not including ordinary retail uses that would compete with the local retail centre. C19(3) does not prohibit, absolutely, a development in a zone 3(g) area that provides for ordinary retail uses that would compete with the local retail centre. It requires only that the development be consistent with the zone 3(g) objectives. [88] The meaning of ‘consistent’ in this context was not fully explored in argument, but it imports a concept less stringent than prohibited use. The issue of consistency involves questions of fact and degree. [89] Where the carrying out of a development involves uses that significantly promote the vast majority of the objectives of a particular zone, but also involves other uses that are not objectives, the carrying out of the development may nevertheless

still be consistent with the objectives of the zone concerned. The extent and degree to which the objectives, on the one hand, are promoted and, on the other, are not, have to be compared and weighed. A value judgment is required.” Thus, Schroders held that for a development to be consistent with zone objectives which seek to promote certain objectives, the fact that part of development may not promote the zone objectives while the rest do so will not prevent a development from being consistent with the zone objectives. The extent to which the objectives are promoted or not promoted requires a value judgment. To that extent, determining what is consistent involves a less stringent approach to determining a prohibited use. The question of consistency involves questions of fact and degree.

¶23-070 Hunt v Blacktown City Council The question of whether a precondition requiring the consent authority to be satisfied that a DA was consistent with zone objectives amounted to a prohibition, was considered by the NSW Court of Appeal in Hunt v Blacktown City Council [2001] NSWCA 216 (Hunt v Blacktown City Council). In this case, the appellant was seeking to have his poultry farming business declared an existing use, being development prohibited by an EPI, and to use the existing use finding as a platform to convert the existing use into another existing use, a shopping centre. At first instance, Cowdroy J found the development properly characterised was for the purposes of agriculture under the Blacktown LEP 1988. The land was partly zoned 2(a) Residential A under which development for the purposes of agriculture was not included in the schedule of the Land Use Table as prohibited. The appellant argued it was prohibited as it was inconsistent with the zone objectives. Powell JA (with whom Meagher JA and Beazley JA agreed) held at paragraphs [31], [36]–[40] and [43] as follows: “31 After setting out the provisions of ss 106, 107(1) of the EPA Act, Cowdroy J dealt with the Appellant’s second case as follows

(RAB 14–16): ‘21. The poultry farming activities have been conducted lawfully. The question to be determined is whether they are now ‘prohibited’ under the amended LEP. If so the definition of ‘existing use’ is satisfied. In North Sydney Municipal Council v Boyts Radio and Electrical Pty. Limited (1989) 16 NSWLR 50 the New South Wales Court of Appeal (at 59) set out the principles to apply when considering the claim of an ‘existing use’. An existing use in the present context is one which has been conducted for a lawful purpose before the implementation of the current planning instrument which is prohibited by such instrument. 22. Properly categorised the activity conducted on the premises known as Chanteclair farm is ‘agriculture’ as defined in the amended 1988 LEP. Such definition specifically refers to the keeping of poultry being the very activity which is conducted at the farm. ‘Agriculture’ is a use which is not included in the list of prohibited uses set out in Schedule 1 to the instrument. Whilst the operation of packing, sorting and grading of eggs produced on the farm and brought in from other farms may take place, this activity is the end product of the principal activity. Accordingly, the operations do not constitute a ‘Rural Industry’ as defined. 23. The applicant asserts that the prohibition of such a use can arise not only because the use is included in the Schedule to the amended 1988 LEP but also because it might otherwise be incompatible with the objectives of the 2(a) Residential ‘A’ Zone in the instrument. It says that the use of a poultry farm is not only inconsistent with such objectives but also inconsistent with the objectives of the instrument set out in cl 2(2) of Part 1 of the instrument. The applicant relies upon the decision of the New South Wales Court of Appeal in Vaniga v South Sydney Council (1989) 74 LGRA 86 and the decision of Bignold J in Russo v Kogarah (1985) 86 LGRA 300.

24. A poultry farm being ‘agriculture’ is a use which is permissible in the Residential 2(a) Zone with the consent of Council. Vaniga was not a case which dealt with the question of ‘existing use’ rights and that decision must be confined to the facts of the matter before it. It found that a provision of the Sydney Local Environmental Plan No. 61 prohibited a particular development because of non-compliance with the floor space ratios. In Russo, Bignold J relied upon Vaniga as authority for the proposition that provisions in a planning instrument which qualify a Council’s power to grant a development consent can constitute a prohibition sufficient to prohibit an existing use within the meaning of s 106 of the Act. 25. There is to my mind a clear distinction between a use which is prohibited because it is nominated as such in a planning instrument, compared to a use which although is [sic.] not listed as ‘prohibited’ is one for which Council upon a consideration of the various requirements of s 79C of the Act would not grant consent on merit. The former is rendered a ‘prohibited’ use by virtue of the relevant environmental planning instrument. The latter is not such use [sic.] because it is not the provisions of cl [sic.] 106(a) which prohibits such use. Rather that use is prevented because the consent of the appropriate authority (in this case the Council) is denied. This does not however render it a ‘prohibited’ use as defined: see Woolworths Limited v Dubbo City Council 1997 99 LGRA 334. 26. The applicant says that the use of a poultry farm in a residential zone is inconsistent with the objectives of the plan and of one or more objectives of the zone and therefore the Council cannot give approval because of cl 9(3). It says therefore that the use is prohibited in this sense. The identical clause was included in the relevant instrument referred to in Woolworths. 27. Again the flaw in the submission lies in the fact that it could not be said that the use is prohibited without Council

making a determination of the consistency or otherwise of the development proposal. The decision not to grant consent arises only after the Council is satisfied that the proposed development is inconsistent with the objectives of cl 9(3) of the Instrument. There is no ‘prohibition’ at the outset. Without such decision it could not be said that the development is ‘prohibited’ as being antipathetic to the objectives (see Coffs Harbour Environment Centre Inc v Coffs Harbour City Council and Anor. (1991) 74 LGERA 185 (CA)). A contrary result would subvert the basis of zoning which form the foundation of most environment planning instruments.’ ... 36. Reduced to their most simple form, the Appellant’s submissions were to the effect that Cowdroy J erred in failing entirely to give effect to the expression ‘having the effect of’ as governing the word ‘prohibiting’, the bases for so submitting being that, as a matter of principle, provisions in planning instruments which qualify a council’s power to grant development consent in a fashion similar to that contained in clause 9(3) of BLEP 1988 can, and do, operate with the effect of prohibiting an existing use — a submission sought to be based upon the decision in Vaniga Pty. Ltd. v South Sydney Council and Russo v Kogarah Council; or alternatively, in a case — such as this was said to be — in which a finding that the use in question was generally consistent with one or more of the objectives of the relevant plan and one or more of the objectives of the relevant zone could not be sustained in law, that use is to be regarded as prohibited — a submissions sought to be based upon the decisions in Coffs Harbour Environment Centre Inc v Coffs Harbour City Council and Russo v Kogarah Council. … 37. The two alternative approaches may be seen in the passage from the Judgment of Bignold J in Russo v Kogarah Council which I set out below. That case involved an appeal against the failure of the respondent Council to grant development consent

for an application to convert an existing dwelling house, which was located in a ‘4(b) Light Industrial’ zone to be used in conjunction with adjoining premises which were then being used as an existing child care centre. Clause 10(3) of the Kogarah Local Environment Plan was in terms similar to clause 9(3) of the BLEP. The basis of the appeal was that, as, so it was suggested, use of the subject premises as a dwelling house was not consistent with the objectives of the zone, that use constituted an existing non-conforming use which enabled the respondent Council, pursuant to the provisions of ss 106, 108 of the EP & A Act and Regs. 39, 43 of the EP & A Regulation, to consent to the change of use proposed. 38. In his Judgment in Russo v Kogarah Council 86 LGERA 300, 307–308, Bignold J wrote as follows: ‘… in any event, I am unable to accept the respondent’s argument that the existing use claim was untenable because the Kogarah Local Environmental Plan, and in particular cl 10(3), did not have the effect of prohibiting the dwelling house use of No. 1 Rocky Point Road. In my judgment cl 10(3) of Kogarah Local Environmental Plan may, on the known facts of the present case be held to ‘have the effect of prohibiting’ a dwelling house use of No. 1 Rocky Point Road because it would be legally unreasonable to conclude that a dwelling house use was consistent with the stated objectives for Zone No. 4(b) ‘Light Industrial’: cf. Coffs Harbour Environment Centre Inc. v Coffs Harbour City Council (1991) 74 LGRA 185 at 192–193 where it was held that there was simply no basis for holding that an underground pipeline being part of an ocean outfall for sewerage disposal system was generally consistent with the stated objective of a zone permitting public recreational uses. So here in the present case, there is simply no basis for holding that the existing residential use of the existing building would be generally consistent with the stated objectives of Zone No. 4(b) ‘Light Industrial’.

What I have said is sufficient for solving the present case where the inconsistency of an existing dwelling house use to the objectives of the industrial zone is manifest. Equally it is possible that there may be borderline cases where it cannot be said of a clause like cl 10(3) of the Kogarah Local Environmental Plan, without a far more searching inquiry, whether an existing use is not consistent with a stated zone objective and hence whether the Kogarah Local Environmental Plan ‘has the effect of prohibiting that use’ within the meaning of s 106. However what can be stated confidently, as a matter of general principle, is that provisions in planning instruments which would qualify a Council’s power to grant development consent, in a similar fashion as does cl 10(3) of the Kogarah Local Environmental Plan, can and do operate, with the effect of prohibiting an existing use e.g: see Vaniga Pty. Ltd. v South Sydney Council (1989) 74 LGRA 86. For the foregoing reasons, I reject the respondent’s argument that the applicant’s claim to existing use entitlement in the present case is untenable and I hold that the Kogarah Local Environmental Plan, and in particular cl 10(3) has the effect of prohibiting the existing use as a dwelling house of No. 1 Rocky Point Road, within the meaning of s 106 of the Environmental Planning and Assessment Act. It follows from this conclusion that all of the relevant existing use entitlements that I have earlier recited apply in the present case, in the manner I have indicated.’ 39. If I may, with respect, say so, it does not seem to me that the decision of this Court in Vaniga Pty. Ltd v South Sydney City Council provides any support for the second of the approaches set out by Bignold J in the passage from his Judgment to which I have just referred. That case involved an appeal from Stein J (as his Honour then was) who had refused to grant to the then appellant a declaration that the Council of the City of Sydney had validly extended a development consent granted by the Land and Environment Court the better part of 2 years earlier than the date

of the purported extension. The development consent had been granted prior to the making, and gazettal, of the Sydney Local Environmental Plan No. 61, the floor space ratio and the height of the development to which that consent had been granted being 2.83:1 and 23.5 metres respectively. The relevant clauses of the Sydney Local Environmental Plan No. 61 were as follows: ‘11. The floor space ratio of any building to be erected or extended shall not exceed the maximum ratio on the H & FSR control map for the site on which the building is located. … 17(1) The Council shall not consent to the erection of a building which when erected will have a height exceeding the height in metres specified in the legion Tables on the H & FSH control map in relation to the height control area indicated on that map and in which the building is situated.’ the relevant floor space ratios and height being 2:1 and 12 metres respectively. The question with which Stein J at first instance and this Court on appeal was concerned to deal was the effect of s 99(1)(a) of the EP & A Act which provided: ‘99(1) A consent granted under this division to a development application shall lapse — … (a) unless the development the subject of that consent is commenced — (i) except as provided in subparagraph (ii) — within 2 years … of the day upon which that consent becomes effective in accordance with s 93 …; or (ii) where within one year of the prescribed date a provision of an Environmental Planning Instrument is made which would, but for sections 100A and 101, have the effect of prohibiting the development — within one year of the date upon which that provision comes into force.’

40. In the course of his Judgment, Clarke JA with whom Priestley and Meagher JJA agreed, said 74 LGRA 88–90: ‘… On the face of it these provisions have the effect of prohibiting the development. The appellant submits that upon closer examination that is not so. The prohibition of which s 99(1)(a)(ii) speaks is an absolute prohibition. This must be so for a conditional prohibition is not in fact a prohibition at all. In substance a provision effecting a conditional prohibition is indistinguishable from one which lays down conditions upon which development will be permitted. … In my opinion the submission should be rejected. Prior to the making of the Sydney Local Environmental Plan No. 61 the restrictions imposed under planning instruments concerning floor space ratios and the height of buildings permitted the grant of development applications relating to buildings which had a floor space ratio in excess of 2:1 and were higher than 12 metres. There was no relevant prohibition against the granting of consent to a development involving the erection of a building with a floor space ratio of 2.83:1 and a height of 23.5 metres. Clause 11 of the Sydney Local Environmental Plan No. 61 imposed new restrictions on the floor space ratio and cl 17 expressly provided that the relevant consent authority should not consent to a development pursuant to which a building exceeded specified heights — in this case 12 metres — as proposed to be built. Before the making of the Sydney Local Environmental Plan No. 61 the consent authority was empowered to grant consent where the development proposal involved the erection of a building with standards exceeding those provided in cl 11 and cl 17; after it was made and gazetted, those clauses operated to prohibit the granting of consent to such a building.

Whether one pays regard to the words of s 99(1)(a)(ii) before its amendment in 1985 which relevantly were — ‘environmental planning instrument having the effect of prohibiting the development’ — or the section as it is presently worded, the provisions of the Sydney Local Environmental Plan No. 61 fall within its ambit. There is no doubt that the Sydney Local Environmental Plan No. 61 is an environmental planning instrument and I regard it as having the effect of prohibiting the development the subject of this appeal insofar as the height and floor space ratio of the proposed building exceeds the maximum prescribed in the instrument. If the Sydney Local Environmental Plan No. 61 is read alone there could be no doubt about the correctness of this conclusion — its provisions effected the relevant prohibition — and there is much to be said for the view that s 99(1)(a)(ii) directs attention solely to the provisions of a particular planning instrument.’ … 43. The present appeal, which involves a determination of the interaction of the appropriate parts of cl 9 — subcll (2), (3) and that part of the Table to cl 9 dealing with Zone No. 2(a) (Residential ‘A’ Zone) — in my view invites a similar approach to that taken by Clarke JA in Vaniga Pty. Ltd v South Sydney City Council and by Priestley JA in Healesville Holdings Pty. Limited v Pittwater Council. In my view the only developments which are prohibited within a Residential ‘A’ Zone are those set out under Item 4 in the appropriate part of the Table, all other developments — other than those set out under Item 2 in the Table — being permissible with the consent of the Respondent — on this approach, the provisions of clause 9(3) do not operate to prohibit development, but place a limit upon the power of the Respondent to grant consent.” Conclusions The following conclusions may be derived from Hunt v Blacktown City

Council: • A provision of an EPI requiring, as a precondition to the granting of consent, that the consent authority is satisfied that the DA is consistent with zone objectives is not a prohibition at the outset without a decision by the consent authority that it is inconsistent. • Such a provision is in contrast to a precondition such as preventing a council from granting consent to the erection of a building greater than a specified height where on its face such a provision would (or would not) have the effect of prohibiting a proposed development.

¶23-080 Dem Gillespies v Warringah Council In Dem Gillespies v Warringah Council [2002] NSWLEC 224 (Dem Gillespies), Bignold J in the NSWLEC heard a merit appeal against the refusal by Council of a DA for aged and disabled persons housing at Terrey Hills. The principal issue related to zone objectives as outlined by Bignold J in paragraph [2]: “2. In its Notice of Determination given pursuant to the EP&A Act, s 81 the Council stated 14 grounds or reasons for its determination refusing consent. These reasons included what was to become the principal focus of the hearing of the appeal, namely the assertion that the proposed development was ‘not consistent with the Desired Future Character Statement of the A2 Booralie Road Locality’ included in the Warringah Local Environmental Plan 2000 (the LEP). In this respect, it is common ground that cl 12(3)(b) of the LEP which requires the consent authority to be ‘satisfied that the development is consistent with the desired future character described in the relevant Locality Statement’ operates in the nature of a condition precedent to the granting of any development consent to the proposed development: cf Schroders Australia Property Management Ltd v Shoalhaven City Council (2002) NSWCA 74. I shall presently return to consider this all important question.” Bignold J noted that this question is a question of fact or a mixed

question of law/fact (paragraph [51]). Bignold J held at paragraphs [62]–[77] as follows: “62. As to (i) the principal issue in contention concerns the meaning of the word ‘consistent’ in its context in cl 12(1) and cl 12(3) of the LEP. 63. Senior Counsel for the Applicant drew attention to the following passage in the recent decision of Pain J in Mackenzie v Warringah Council (2002) NSWLEC 131: ‘98. The application of the term consistency has been addressed by the Court on a number of occasions and was found to mean not antipathetic, nor incompatible or inconsistent with. (See Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27), Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (per Clarke JA at 192), Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 (at 439), Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, and Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 (at par [25]–[28])).’ 64. Although this statement was made in respect of cl 20(1) of the LEP (which has been quoted earlier) its application to cl 12 of the LEP may be thought to be a natural extension particularly since most, if not all, of the cases which her Honour cited were cases which had considered a clause in a planning instrument in similar terms to cl 12(3)(b) but expressed in reference to stated objectives of a particular zone rather than to the ‘Desired future character’ of a locality as in the present case. 65. Particular reliance was placed by Senior Counsel for the Applicant upon the decisions of the Chief Judge in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190. In Schaffer her Honour, after citing a passage from the judgment of Clarke JA in Coffs Harbour

Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185, because she considered it to provide ‘some guidance’ to the task of construction (at 26) expressed the following opinion at 27: ‘The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.’ 66. In Hospital Action Group the Chief Judge put the matter a little differently when she said at 264: ‘It is also important to bear in mind that consistent does not mean conform to or promote and it does not require a positive finding of compatibility: Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 and Bodyline Spa and Sauna (Sydney) Pty Ltd v South Sydney Council (1992) 77 LGRA 432 at 439.’ 67. Her Honour’s latter statement that a positive finding of compatibility is not required for a proposed development to be consistent to a stated zone objective is, in my respectful opinion, to be understood merely as an adoption by reference, of what Stein J had held in Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 where his Honour had to determine whether a proposed development ‘by virtue of its type, function, scale, services provided or the nature of the environment in which it is proposed to be located in, in the opinion of the Council, is consistent with the objectives of the zone’: see at 439. 68. One of the zone objectives required the proposed development to be ‘compatible with existing or planned residential development … …’ (see at 438). It was in relation to a submission that in order to comply with that zone objective, ‘a positive finding of compatibility is required’ that Stein J said at 439: ‘In my opinion, it may be concluded that this development is

compatible with the existing residential development in the zone. I so find on the evidence notwithstanding that I do not accept that a positive finding of compatibility is required. Looked at objectively, and in the planning context, what is required is a finding that the development — taking account of its type and scale — is not incompatible or inconsistent with the residential development. … Taking into account all of the factors relevant to determine the compatibility of the proposal with the residential development, I am confident in the positive conclusion that it is compatible and does not conflict with the residential objectives of the zone.’ 69. Whereas it is the case that his Honour expressly rejected the submission that ‘a positive finding of compatibility was required’ his Honour nonetheless held that what was required was a finding that the development is ‘not incompatible or inconsistent with’ the residential development. That remains a positive finding though expressed via a double negative and with great respect I do not for myself see much difference between a requirement that there be a finding that a proposed development is ‘consistent with’ a zone objective and a requirement that there be a finding that a proposed development is ‘not inconsistent with’ a zone objective. 70. With the benefit of the survey of the decided cases on the meaning that has been given to the word ‘consistent’ in clauses in planning instruments that require an opinion by the consent authority that a proposed development be ‘consistent with the zone objectives’, I would for myself, conclude that the word ‘consistent’ appearing in cl 12(3)(b) of the LEP, assumes its ordinary and natural meaning. That meaning in my respectful opinion is not confined to the notion of the proposed development ‘not being antipathetic’ to the desired future character of the Locality. 71. The dictionary meaning of the word ‘antipathetic’ (eg the Macquarie Dictionary: ‘having a natural antipathy, contrariety or constitutional aversion’) indicates a far stronger, but narrower,

connotation than the connotation of the word ‘inconsistent’. Clearly, there can be an ‘inconsistency’ with a stated object which does not involve any element of ‘antipathy’ to that object. 72. When Clarke JA in Coffs Harbour Environment Centre Inc stated at 193 that whatever be the precise ambit of provisions in a local environmental plan which prohibited all development ‘unless the Council was satisfied that the carrying out of the development is generally consistent with one or more of the stated objectives of the zone’ (and concurrently permitted development other than that which was prohibited) ‘the provisions do not permit an antipathetic development …’, his Honour was simply propounding the view that he had already expressed at 192 that the construction under land zoned ‘Public Recreation’ of a sewerage treatment plant ‘could not possibly be regarded as being compatible with public recreational use of the land’. His Honour had deliberately eschewed any attempt to define the ambit of the relevant planning provisions and his conclusion that they did not permit the carrying out of ‘antipathetic’ development was nothing more than postulating an obvious and unarguable proposition that such a development could not qualify as being ‘generally consistent’ with the zone objectives. 73. Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object, antipathy is not a true synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy. 74. On the other hand, ‘compatibility’ in my judgment may reasonably be regarded, a synonym of ‘consistency’ and the meanings of these words is very similar, although in Coffs Harbour Environment Centre Clarke JA at 192 rejected as ‘too expansive’ an argument that ‘consistent’ meant ‘compatible’ and one of the dictionary meanings of the latter word was ‘mutually tolerant’. I would respectfully agree with Clarke JA’s conclusion that that particular meaning of ‘compatible’ was too expansive in the context of its application to the statutory provision requiring the consent authority’s opinion that the proposed development be

‘generally consistent’ with the zone objective. However, the primary dictionary meaning of ‘compatible’ (the Macquarie Dictionary: capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word ‘consistent’ in its context in cl 12(3)(b) of the LEP. 75. In so concluding, that the ordinary and natural meaning of the word ‘consistent’ in its statutory context is to be applied as being appropriate to the true meaning of cl 12(3)(b) I have had regard to the function and effect within the LEP of the Locality Statements and of those components of such Statements that state the ‘desired future character’ of each of the localities. I have earlier drawn attention to the particular provisions of the LEP that either incorporate or contain reference to the Locality Statements and those components of those Statements that state the Desired Future Character of each of the localities. The function within the LEP of the Locality Statements is self-evidently significant. I have also had particular regard to cl 18 earlier recited where subclause (2) declares that ‘compliance with development standards, however, does not guarantee that the development is consistent with … the desired future character of the locality’. This provision, in my opinion, is a reinforcement, and perhaps even an apt commentary upon, the true effect of the joint operation of the requirements of cl 12(2)(b) and cl 12(3)(b). 76. Finally, and perhaps most importantly, I have had regard to cl 3 of the LEP which expressly states the purposes of the LEP and in particular to purpose (b) which ‘describes the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places’ (my emphasis). This particular provision, is in my judgment, of considerable importance inasmuch as it confirms the legitimacy of according to the word ‘consistent’ in its context in cl 12(3)(b) its ordinary and natural meaning, in preference to a meaning (eg ‘not antipathetic’ as pressed by the Applicant’s argument) which ‘would not best meet the purposes’ (cf ‘objects’) stated in the LEP: see s 25(3) of the EPA Act which states:

‘(3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.’ 77. For the foregoing reasons, I am quite unable to accept the Applicant’s argument that the word ‘consistent’ in its context in cl 12(3)(b) means ‘not antipathetic’. Rather I would hold that it has its ordinary and natural meaning (eg as in the Macquarie Dictionary: ‘1. agreeing or accordant; compatible; not selfopposed or self-contradictory; 2. consistently adhering to the same principles, course etc’).” Thus, in Dem Gillespies, Bignold J adopted a more expansive definition of consistent than previously held in Coffs Harbour Environment Centre by the NSW Court of Appeal and in Schaffer by Pearlman CJ. In both cases, the courts used a definition for consistency that had not required a positive finding of compatibility, but a negative test of not antipathetic. This left a DA which was neither positive nor negative to the zone objectives, but just neutral, as still passing the test of consistency. Bignold J is correct that Clarke JA in Coffs Harbour Environment Centre avoided deciding on the full ambit of the meaning of “consistent” Pearlman CJ in Schaffer did so by explicitly finding that consistency does not require a positive finding of compatibility. Bignold J held that consistent does not mean antipathetic, but requires a positive finding of compatibility. Additionally, in Dem Gillespies Bignold J considered whether a provision of an LEP requiring the consent authority to be satisfied that a proposed development is consistent with zone objectives is not a provision declaring prohibited development, but rather as a provision which limits the power of the consent authority to grant consent in accordance with the NSW Court of Appeal decision in Hunt v Blacktown City Council (2001) 116 LGERA 356 at 374 (see paragraph [93] of Bignold J’s judgment in Dem Gillespies).

¶23-090 New Century Developments Pty Limited v

Baulkham Hills Shire Council In New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (New Century Developments), Lloyd J in the NSWLEC heard a merit appeal against the refusal of a DA for the construction of a Muslim house of prayer or mehfil at Annangrove. One of the issues considered by the Court related to the compatibility of the application with the zone objectives. The zone objectives for the relevant Rural 1(c) zone under the Baulkham Hills LEP 1991 were as follows: “(a) to accommodate rural-residential development that is sympathetic with the environment and minimises risks from natural hazards, and (b) to provide for a range of activities which are compatible with the rural residential character of the locality, and (c) to ensure that development in the area does not unreasonably increase demand for public services and public facilities, and …” Clause 9(2) of the LEP provided: “9(2) Except as otherwise provided by this plan, consent must not be granted for development unless the consent authority is satisfied that the development is consistent with one or more of the aims and objectives of this plan or one or more of the objectives of the zone within which it will be carried out.” In relation to the issue of consistency, Lloyd J held at paragraphs [25], [27] and [29] as follows: “25. In applying cl 9(2) to the objectives of the zone, it is important to note that a development will generally be ‘consistent with’ the objectives if it is not antipathetic to them: it is not necessary to demonstrate that a development promotes or is ancillary to these objectives, nor even that it is compatible with them (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192 per Clarke JA, Schaffer Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 27 per Pearlman J).

… 27. It seems clear, however, that the development is not antipathetic to the objectives of the zone. The development is clearly not rural-residential development. But cl 9(2) requires consistency with one or more of the zone’s objectives. As a matter of statutory construction, provided the development satisfies one or more of the zone’s objectives, then it is not prohibited and may be considered on its merits. … 29. In the event that I am wrong in my construction of the phrase ‘consistent with’ in its context in cl 9(2) of the LEP, my conclusions are unchanged. The more discerning ‘ordinary and natural’ meaning of the expression, adopted by Bignold J in Gillespies v Warringah Council (2002) 124 LGERA 147 at 165 [70] produces the same result in this case. Such approach embraces the Macquarie Dictionary (3rd ed (2001) at 414) entry pertaining to the word ‘consistent’: ‘1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc …’. Contrary to Coffs Harbour and Schaffer, this elucidation of the term is not confined to the conception of the proposed development ‘not being antipathetic to’ the objectives of the Rural 1(c) zone, Bignold J stating that ‘antipathetic’ suggests a much stronger and narrower connotation than ‘inconsistent’ and is thus not a true synonym of the term (Gillespies at 165 [73]). In applying the ‘ordinary and natural’ meaning approach to the present matter, it is clear that the proposed development is accordant with and not contradictory to the objectives in cl 9(2) of the LEP, and is therefore consistent with them.” It will be noted that Lloyd J in New Century Developments adopted the meaning of consistency used in Coffs Harbour Environment Centre and in Schaffer, but also applied the meaning used by Bignold J in Dem Gillespies in case he was wrong. New Century Developments indicates a caution to adopt the wider meaning of “consistent” used by Bignold J in Dem Gillespies.

¶23-100 Centro Properties Limited v Warringah Council & Anor In Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145 (Centro Properties), Pain J in the NSWLEC considered an application for a declaration that a development consent granted for a bulky goods retail outlet at Auslink Business Park at Belrose was invalid, and an injunction to restrain the developer acting on the consent. In these proceedings Pain J considered, among others, the following issues: (1) Is the requirement for Council to be satisfied that the proposed development is consistent with the desired future character as described in the relevant Locality Statement a condition precedent to the grant of development consent? (2) Alternatively, is the requirement for the Council not to grant consent to a DA unless it is consistent with a number of requirements including the desired future character of the locality a jurisdictional fact? (3) If it is not a jurisdictional fact, is it capable of challenge on the grounds of manifest unreasonableness? (4) Or, is it capable of challenge due to failure to consider relevant matters? In relation to the question of whether the need to be satisfied on consistency with the desired future character (DFC), Pain J held at paragraphs [74]–[82] (footnotes not included): “74. The requirement under cl 12(3)(b) is that, for Category Two development, the Council must be satisfied that the development is consistent with the DFC before granting development consent. On the basis of Franklins and Schroders, both of which also consider wording based on the need to be satisfied with a certain matter before a council can grant development consent, this provision clearly contains a condition precedent to the exercise of

the Council’s power to grant development consent which must be satisfied by the Council before consent can be granted. 75. In Franklins the Court of Appeal had before it cl 32(2) of the Penrith Local Environmental Plan No 231 which provided: ‘Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land.’ [Emphasis added] 76. At [23] his Honour noted that cl 32(2) had the effect that the development was prohibited unless the Council formed the opinion required by that clause. At [28] his Honour stated: ‘… What is here involved is a question of power. If the precondition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an ‘essential condition’ or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paragraphs [42] and [94]. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. …’ 77. In Schroders the Court of Appeal was considering an appeal based on cl 9(3) of the Shoalhaven Local Environment Plan 1985 which provided: ‘Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on or of land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.’ 78. Ipp AJA (Spigelman CJ and Sheller JA agreeing) stated at [7]:

‘Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the 3(g) zone. A failure to form such an opinion would result in the grant being invalid: Franklins Limited v Penrith City Council [1999] NSWCA 134.’ 79. The wording in cl 12(3)(b) does suggest that the decision that before granting consent for development ‘the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant locality statement’, is a condition precedent to the exercise of the Council’s power to grant development consent. This is also the view of Bignold J in Dem Gillespies. In Dem Gillespies Bignold J accepted (at [84]) that cl 12(3)(b) of the LEP: ‘requires as a condition precedent to the granting of development consent for a Category Two development (such as is the proposed development) the satisfaction by the consent authority that the development ‘is consistent with the desired future character’ described in the relevant locality statement. How should cl 20(1) be interpreted?’ 80. The wording in cl 20(1) also suggests a condition precedent to the exercise of the consent authority’s decision whether to grant development consent to non-complying development, the Category One development in this case. 81. I consider this is a conclusion which can also be based on the cases outlined above at par 75–79 although I note that the wording of cl 20 is different to cl 12(3)(b). I note the Applicant also argued in the alternative argument 1(a) that cl 20(1) gave rise to jurisdictional fact in the ‘narrow’ sense, meaning, according to the Applicant, a jurisdictional fact which the Court itself must determine. I do not accept that argument for reasons set out at par 102–106. While the wording of cl 20(1) does not include the words ‘the consent authority must be satisfied’ as in cl 12(3)(b), in

the scheme of this LEP I consider cl 20(1) is also a condition precedent which must be satisfied by the Council before development consent can be granted. 82. I consider the Council’s consideration of cl 12(3)(b) and cl 20 is within jurisdiction, but I do not accept the Council’s argument that this means the only challenge available to this process is whether it was reasonable. The Court can consider whether the conditions precedent were satisfied in the material before the Council. While Stein J in Franklins (at [28]) refers to Spigelman CJ in Timbarra, the judgments in Hortis, Schroders or Franklins do not use the expression jurisdictional fact to describe the similar circumstances in those cases which are the basis of the Applicant’s primary argument. I am not sure that describing each of the conditions precedent in question as jurisdictional facts in the broad sense is entirely accurate. The jurisdictional fact with which Timbarra was principally concerned was a fact which the Court could determine for itself as a preliminary fact, the determination of which was necessary to the exercise of jurisdiction. The conditions precedent in issue here are not of the same nature but must be satisfied by the Council before the Council can grant development consent.” In relation to the meaning of “consistent with”, Pain J held it was not necessary to decide between the competing views of “not antipathetic” or the view of Bignold J in Dem Gillespies of positive compatibility (see paragraphs [99]–[100]). On the question of whether a jurisdictional fact arises, Pain J held at paragraphs [102] and [105]–[106] as follows: “102. In my view cl 20(1) does not give rise to a jurisdictional fact in the ‘narrow sense’ (as the Applicant referred to it) as identified in Timbarra. … 105. Timbarra sets out those factors which can be applied to determine if a jurisdictional fact exists. The wording of cl 20 may suggest an objective test as it states ‘provided the resulting

development is consistent with … the desired future character of the locality …’. There is no suggestion that ‘satisfaction’ by the Council about a matter is required, as under cl 12(3)(b). I consider however the wording ‘consistent with … the DFC’ is not a fact about which there can be a clearly objective determination. The application of cl 20 to the DFC in the C9 Locality Statement, particularly given the imprecise wording in the first part of the DFC, does not suggest a readily identifiable objective analysis which the court could apply in my view. Further I agree with the submissions of the Second Respondent that the test of essentiality and objectivity identified in Timbarra is not met in the circumstances of this LEP (see par 67–70). 106. It is also useful to consider Pearlman J’s decision in Plumb v Penrith City Council2 where she reviews the decision in Timbarra. Relying on Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 [sic. Should be “(2000) 199 CLR 135”] her Honour emphasises that the key issue to ask in determining whether there is a jurisdictional fact is what enlivens the power of a council to grant development consent, namely the receipt of a valid development application (at [17]). Applying that reasoning to this LEP I do not consider the Council’s power is ‘enlivened’ in the sense referred to by Pearlman J by the obligations imposed on it under cl 20. The Council already has jurisdiction at the point it considers cl 20.” Pain J held that the Council’s conclusion as to whether the conditions precedent were met was challengeable on the grounds of manifest unreasonableness, but on the evidence she held the Council did not act unreasonably. In relation to whether the Council’s decision was capable of challenge, on the basis of failure to consider the desired future character, Pain J held it was, but on the evidence she held at paragraph [108] as follows: “108. In relation to the Applicant’s primary argument I held that cl 12(3)(b) and cl 20(1) are conditions precedent to the Council’s exercise of its powers but I questioned whether the clauses were jurisdictional facts in the broad sense (as the Applicant referred to

them). Argument 1(c) is theoretically open to the Applicant. It is clear from my reasoning and conclusion at par 87–100 that the material before the Council adequately characterises the DFC in the C9 Locality statement. An opinion as to consistency under cl 12(3)(b) and cl 20(1) was reasonably open as was consideration of the DFC under cl 12(3)(a). I consider there was proper, genuine and realistic consideration by the Council, as required in Zhang. The Applicant has not succeeded on argument 1(c).” Conclusions The key conclusions derived from Centro Properties are as follows: • A requirement for a consent authority to be satisfied as to consistency of a DA with zone objectives is a condition precedent which must be satisfied before granting development consent. • In any challenge to whether a condition precedent has been satisfied, such a challenge is not limited to whether the consent authority’s decision is unreasonable. The court can consider whether the conditions precedent were satisfied in the material before the consent authority. • Even when the requirement for satisfaction with zone objectives is expressed as an objective test, the imprecise wording of zone objectives suggests it is not a fact about which there can be an objective determination. The two requirements of essentiality and objectivity required for a jurisdictional fact are not present. Further the power of the consent authority is not enlivened by the satisfaction with zone objectives, as the consent authority already has jurisdiction in relation to the DA. Hence, the power to determine a DA is already within jurisdiction, even before the condition precedent is satisfied. • A consent authority’s conclusion on the question of consistency with zone objectives is open to judicial review of the grounds of Wednesbury unreasonableness. • Where zone objectives are required to be considered as a head of

consideration, such consideration must be a proper, genuine and realistic consideration as required in Zhang v Canterbury City Council (2001) 115 LGERA 373 (Zhang). In Centro Properties, the court noted that judicial review of the consent authority’s conclusion on the question of consistency with zone objectives is limited to the grounds of Wednesbury3 unreasonableness. However, this area of judicial review of administrative decisions is evolving and changing as a result of recent High Court decisions, particularly Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS). Footnotes 2

CCH comment: This refers to Plumb v Penrith City Council and Anor [2002] NSWLEC 223

3

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.

¶23-110 Principle of Wednesbury unreasonableness The principle of Wednesbury unreasonableness features strongly in planning law and administrative law in New South Wales and Australia. However, in England the distinction between jurisdictional and non-jurisdictional facts is no longer favoured. The development of the law relating to “unreasonable”, “irrational” and “illogical” as grounds for administrative law review is outlined by Crennan J and Bell J in the High Court in SZMDS at paragraphs [121]–[131]. In this discussion of the development of the scope for judicial review of a subjective requirement for a decision-maker to be satisfied in relation to a matter (referred to as a jurisdictional fact or a precondition to the exercise of a power) in SZMDS, the following matters are noted: • Where a jurisdictional fact is a state of satisfaction or opinion in

Australia, judicial review is available where such decisions are arbitrary, capricious and irrational. In England, the approach is to require reasonable grounds for a decision, even where the jurisdictional fact is successfully framed. • The grounds of “irrationality”, “illogicality” and “unreasonableness” have developed from “Wednesbury unreasonableness” and now overlap to a considerable degree. • “Illogicality” and “irrationality” appear to refer to the process of reasoning by which a decision was reached, whereas “unreasonable” refers to both the reasoning process as well as the decision itself. • The concept of “Wednesbury unreasonableness” appears to have evolved into a requirement that decisions be reasonable, logical and rational in a positive sense.

¶23-120 Australians for Sustainable Development v Minister for Planning — the issue of “satisfaction” In reviewing the recent High Court decisions on the issue of “satisfaction”, Biscoe J held in Australians for Sustainable Development v Minister for Planning [2011] NSWLEC 33 as follows, discussing SZMDS at paragraphs [232]–[234]: “232 The law in this area of subjective jurisdictional fact may be still evolving. To date, it has evolved, I think, to the point where it can be said, in relation to reasonableness, that the question is not whether the court would have formed the required state of satisfaction or opinion but whether the decision-maker could have formed it reasonably. If there is any difference between this positively expressed test and the negatively expressed Wednesbury test of unreasonableness in discretionary decisionmaking, it is subtle. The subjective jurisdictional fact decision may also be infected by error for other reasons which may well overlap: if the decision-maker did not act in good faith, acted arbitrarily or capriciously, failed to consider matters required to be

considered or took irrelevant matters into account, in [sic.] misdirected itself in law, or failed to address the right question; findings were based on inferences of fact unsupported by some probative material on logical grounds; or it was not open to the decision-maker to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. 233 Where no reasons are given for a decision, as under Part 3A of the EPA Act, some of these grounds may be more difficult to make out. It may be noted that the Land and Environment Court Rules 2007 r 4.3 empower the Court in judicial review proceedings to order the public authority to furnish reasons and make available documents relevant to the decision, and to order particulars, discovery and interrogatories. 234 The inadequacy of the material on which the decision-maker acted is not in itself a ground of judicial review but may support the inference that the decision-maker had applied the wrong test or was not in reality satisfied of the requisite matters: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, 88 CLR 100 at 120; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212 at [39]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 273 ALR 327 at [63]. In the first of those cases a statute conditioned the power of the Australian Stevedoring Industry Board to cancel or suspend the registration of an employee upon the Board’s satisfaction that the employee was unfit to continue to be registered or has acted in any manner whereby the proper performance of stevedoring operations has been interfered with. The decision was that the facts disclosed no basis for supporting such unfitness and an order for prohibition was made.” Thus, following SZMDS the test in relation to reasonableness appears to be a positive one of whether the decision-maker could have formed the requisite opinion or state of satisfaction reasonably, logically and rationally not the negative Wednesbury test of unreasonableness.

¶23-130 Principles relating to the consideration of zone objectives The key principles derived from the discussion relating to the role of zone objectives in an LEP are as follows: Principle 1: The zone objectives of a particular zone included in the Land Use Table of an EPI operate in one of the following ways: • as a head of consideration to be taken into account when a consent authority determines a DA, or • as a precondition to the determination of a DA, where the consent authority is required to be satisfied that a DA is consistent with zone objectives. The answer to the question of which role zone objectives perform is provided in the clause of an EPI establishing the Land Use Table (Standard Instrument, cl 2.3(2) and relevant LEPs). Principle 2: Where zone objectives are a head of consideration in the determination of a DA, judicial review of their consideration by a consent authority is available on two grounds: (1) failure of the consent authority to take into account the zone objectives as a head of consideration in the determination of a DA, and (2) whether the determination of a DA, taken with regard to the zone objectives as a relevant head of consideration, is manifestly unreasonable in the Wednesbury sense. Principle 3: Where zone objectives are required to be taken into account as a head of consideration, such consideration must be a proper, genuine and realistic consideration as required in Zhang (Centro Properties). Principle 4: Where zone objectives operate as a condition precedent to the determination of a DA, judicial review of their determination is available on three grounds:

(1) failure of the consent authority to determine the condition precedent before making the determination of a DA for which the precondition applied (Centro Properties, Schroders) (2) whether the condition precedent was actually satisfied in the material before the consent authority when making its determination on the condition precedent (Centro Properties), and (3) whether the consent authority could have formed the required opinion reasonably, logically and rationally (SZMDS) on the condition precedent. Principle 5: The decision of a consent authority regarding a condition precedent requiring a DA to be consistent with zone objectives is not a jurisdictional fact. This is the case even when the requirement for consistency is expressed as an objective test. The decision on the condition precedent in relation to zone objectives lacks the requirements of essentiality and objectivity required for a jurisdictional fact. Moreover, the power of the consent authority to grant consent is not enlivened by the condition precedent of consistency with zone objectives, as the consent authority already has jurisdiction in relation to the DA. As such it is already within jurisdiction (Centro Properties). Principle 6: A provision of an LEP requiring as a precondition to the granting of consent that the consent authority is satisfied that the DA is consistent with zone objectives is not a prohibition at the outset, without a decision by the consent authority that it is inconsistent. Such a provision is in contrast to other conditions precedent in an LEP such as one preventing a consent authority from granting consent to the erection of a building greater than a specified height, where on its face, non-compliance with such a provision would have the effect of prohibiting a proposed development (Hunt v Blacktown). Principle 7: Where an LEP requires a consent authority not to grant consent to a DA unless the DA is consistent with zone objectives, the principles for determining what is meant by consistent are as follows: • A development that is consistent with zone objectives does not need to promote the objective concerned strictly, but also

encompasses development which may be complementary or ancillary to development which promotes the objective concerned. • A development is not consistent with zone objectives if it is antipathetic development to those objectives, irrespective whether efforts have been made to minimise the extent to which it is antipathetic). (Coffs Harbour Environment Centre) Thus, development will be consistent with zone objectives if it is not antipathetic to them. It is not necessary to show that the development promotes, or is ancillary to, those objectives, nor even to show it is compatible (Schaffer). Principle 8: An alternative meaning of consistent to that outlined in Principle 7 is that consistent does not just mean antipathetic, but it requires a proactive finding of compatibility (Dem Gillespies). However, this alternative and expansive meaning of consistent has not been widely embraced (New Century Developments, Centro Properties).

SPECIAL PROVISIONS OF A LOCAL ENVIRONMENTAL PLAN ¶24-010 Provisions of remainder of a Local Environmental Plan as important as the Land Use Table Knowledge of the Land Use Table and whether that Table provides that a particular development is permissible with consent, permissible without consent or prohibited is insufficient to appreciate the effects of a Local Environmental Plan (LEP) upon a particular piece of land. The remaining provisions of an LEP are equally important to the Land Use Table. Those remaining provisions prior to the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument) were referred to as “Special Provisions” in contrast to those parts of an LEP

which provided for zoning and the Land Use or Development Control Table, called “General Restrictions on Development of Land”. Under the Standard Instrument, the former Special Provisions are partly contained within the part providing for the zoning system and Land Use Table, Part 2 on “Permitted or Prohibited Development”, while the rest are contained in the following parts: • Part 3: Exempt and Complying Development • Part 4: Principal Development Standards, and • Part 5: Miscellaneous Provisions. These special provisions may have some or all of the following effects: • they may provide for a commencement date, identify the land to which the plan applies, provide for maps, repeals and savings and transitional provisions • they may identify one or more consent authorities • they may control development not otherwise controlled by the Land Use Table for unzoned lands • they may extend the scope of control of the LEP from the five core elements of the definition of “development” (in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)) to encompass, within the extension of the definition of development provided in paragraph (f) of the definition, to any of the matters referred to in s 26 (This is particularly the case for controls relating to heritage conservation, controls relating to trees and vegetation and controls relating to advertising.) • they may permit development otherwise prohibited by the Land Use Table with provisions for additional permitted uses for particular land (usually the result of spot rezoning) or provisions which relax prohibitions, such as those applying to heritage conservation to encourage adaptive re-use, or provide flexibility for development near zone boundaries

• they may prohibit development otherwise permissible under the Land Use Table • they may exempt development from planning control either by declaring development to be “exempt development” or by removing both prohibitions and the necessity to obtain development consent for certain infrastructure development and the use of existing Crown buildings • they may provide for “Complying Development”, being development otherwise permissible with consent, but where development consent is not required and a complying development certificate is required in lieu thereof • they may provide for development standards, which limit how development otherwise permissible may be carried out (these development standards relate often to minimum subdivision sizes, minimum allotment sizes for the erection of a dwelling in rural zones, height, and floor space ratio (FSR) (a ratio of the gross floor area of a building to the site area of the development, being a surrogate control for bulk and scale of buildings)) • they may require additional documentation to be submitted with a development application (DA), such as a heritage management document • they may require consultation with, or concurrence by, another body • they may impose conditions precedent regarding which the consent authority must satisfy before granting development consent, and/or • they may impose additional heads of consideration, which a consent authority must take into account in determining a DA.

Each of the above types of special condition may significantly alter the effect of the Land Use Table alone on what development may be carried out on particular land. They highlight the need when considering an LEP to consider the instrument as a totality rather than to focus attention only on the part, namely the Land Use Table. Each of these additional provisions will be examined in the following sections.

¶24-020 Provide for a commencement date, the land to which the plan applies, maps, definitions, repeals and savings and transitional provisions Commencement date The Standard Instrument provides in cl 1.1AA that an LEP commences on the day it is published on the NSW Legislation website. Previously, most LEPs did not contain a commencement date clause.1 By including a commencement date clause, it enables an LEP to commence on a date to be proclaimed, or some later date from its date of publication on the NSW Legislation website. An example of this is cl 2 of the Sutherland Shire LEP 2006 which provides that the LEP commences 14 days after the date of its publication in the Government Gazette. The land to which the plan applies The Standard Instrument provides in cl 1.3 that the land to which an LEP applies is identified on the Land Application Map. The Land Application Map may be a separate map or, by annotation, as the other boundary of the Land Zoning Map. Previously, LEPs conventionally provided that an LEP applies to all land within the relevant Council’s Local Government Area (LGA). The issue of power for an LEP to cover land outside the LGA of the relevant council has been addressed in Part B of this book. Maps An LEP adopts certain maps as provided in cl 1.7 of the Standard Instrument. These maps conventionally include a zoning map and

may, in addition, include maps relating to building height, FSR, heritage conservation and other matters. Definitions An LEP includes a clause providing for a dictionary or definitions of words used in the Plan. For LEPs prior to 2005 which adopted the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions), most of the principal definitions were included in cl 4(1) of the Model Provisions. Repeals An LEP includes a clause providing for repeals of other Environmental Planning Instruments (EPIs) and non-application of State Environmental Planning Policies (SEPPs). Clauses 1.8 and 1.9 of the Standard Instrument provide for repeals and non-application of other EPIs. These provisions are important in ascertaining the interrelationship of EPIs where more than one applies to the same land, particularly where various provisions of SEPPs are declared not to apply. While the Standard Instrument contains no savings and transitional provisions, most LEPs contain such provisions. Without any such provisions, the LEP applies from the date of its commencement. However, it only applies prospectively, not retrospectively. Savings and transitional provisions The issue with savings and transitional provisions is of importance in relation to DAs lodged but not determined finally before the date of commencement of a new EPI. As will be discussed later, it has been held in Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 that the law to be applied to a DA is that which exists at the date of its final determination and not the date of its lodgment. In addition, there is a requirement in consideration of a DA for a consent authority to take into account a draft LEP. This issue will be discussed in detail later. An example of a savings and transitional provision is as follows: • Canada Bay LEP 2008

“1.8A Savings provision relating to pending development approvals If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.” The effects of these various models for savings and transitional clauses will be discussed later. Footnotes 1

For example, North Sydney LEP 2001, Marrickville LEP 2001 (now repealed), Hawkesbury LEP 1989

¶24-030 Identify consent authority or authorities Section 4(1) of the EPA Act defines “consent authority” as follows: “consent authority, in relation to a development application or an application for a complying development certificate means: (a) the council having the function to determine the application, or (b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister, the Planning Assessment Commission, a joint regional planning panel or public authority (other than a council) as having the function to determine the application — that Minister, Commission, panel or authority, as the case may be.” Clause 1.6 of the Standard Instrument provides:

“1.6 Consent authority [compulsory] The consent authority for the purposes of this Plan is (subject to the Act) the Council. Direction. If required another person or body may be specified as the consent authority for all or any particular kind of development.” The provision in the Standard Instrument has been conventionally adopted in LEPs, although the definition of consent authority provides that the Minister, the Planning Assessment Commission, a joint regional planning panel (JRPP) or a public authority (other than a council) may also exercise that role if it is so provided in the Act, regulations or an EPI. While an LEP may specify that a council is the consent authority, another SEPP may override this and specify that the Minister or a JRPP is the consent authority. This is particularly the case with the SEPP (State and Regional Development) and the SEPP (Major Development) which specify certain development are State significant development and regional development with the Minister and the JRPP being the consent authorities. Hence, care must be exercised in ascertaining who is the consent authority for a particular DA. Consideration needs to be given to the provisions of SEPPs which may make bodies other than the council the consent authority.

¶24-040 Controls on development on land not otherwise controlled An LEP may extend controls over land otherwise unzoned provided that unzoned land is within the land to which the LEP applies. Unzoned lands conventionally may relate to roads and lands below mean high water mark. The Standard Instrument in cl 2.4 makes provision in relation to unzoned land. Alternatively, an LEP may make provisions for land below mean high water mark such as cl 31 of the 1980 Model Provisions. Hence, if land is unzoned it is important to ascertain whether an

applicable LEP contains special provisions such as these.

¶24-050 Expand the definition of development An LEP may expand the ambit of control to cover greater than paragraphs (a)–(e) of the definition of “development” in s 4(1) of the EPA Act. This is achieved by the LEP controlling an act, matter or thing referred to in s 26 and bringing it within the definition of development. This is often achieved in the following circumstances: • in relation to advertising, which is defined in s 4(1) of the EPA Act as follows: “advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.” As defined, advertising is not the erection of a building or the carrying out of a work. However, if an LEP provided in the Land Use Table that advertising is permissible with consent or prohibited, it thereby brings it within paragraph (f) of the definition of development, as the Dictionary to the Standard Instrument provides that “advertisement” has the same meaning as in the EPA Act. Thus, the Canada Bay LEP 2008 provides that development for purposes of advertisement is a nominate permissible development in the Zone B6 Enterprise Corridor and Zone IN1 General Industrial but is an innominate prohibited development in the Zone R1 General Residential. • in relation to heritage conservation, Pt 5 cl 5.10(2)(a) and (b) of the Standard Instrument provides that development consent is required for the making of changes to the detail, fabric, finish or appearance of a heritage building or a building in a heritage conservation area. Areas such as making changes to the detail, fabric, finish or appearance of a building or any changes inside a specified building extend beyond paragraphs (a)–(d) of the definition of

development. In this context, reference should be made to J.J. O’Brien v South Sydney City Council [2002] NSWCA 259 (discussed in Chapter ¶4). • in relation to vegetation and tree protection, see cl 5–9 and 5–9AA of the Standard Instrument. Prior to the Standard Instrument, conventionally, LEPs authorised a council to make a Tree Preservation Order, either by a specific clause in an LEP or, where the LEP adopted the Model Provisions, by cl 8 of the Model Provisions. For such a clause to have operational effect, it required the council by resolution to actually make an order: see Liverpool City Council v Hodge and Anor [2005] NSWLEC 170.

¶24-060 Permit development otherwise prohibited An LEP may permit development which is otherwise prohibited by the Land Use Table. These provisions usually relate to “spot-rezonings” and are contained, conventionally, in a clause entitled “Additional Permitted Uses for Particular Land” such as cl 2.5 of the Standard Instrument. On occasions, the list of additional permitted uses can be extensive and they can impose significant conditions which are tailored to only permit a specific development proposal. These “spot-rezonings” may not appear in a schedule but may be included in the plan itself. Additional otherwise prohibited developments may be permitted under the heritage incentive provisions such as cl 5.10 (1) of the Standard Instrument in relation to heritage items. Additional uses may also be permitted for temporary uses such as provided for in provisions of cl 2.8 of the Standard Instrument. LEPs may provide for flexibility on permissible uses near zone boundaries as provided in cl 5.3 of the Standard Instrument.

¶24-070 Prohibit development otherwise permissible An LEP may include special provisions prohibiting development otherwise permissible in the Land Use Table.

¶24-080 Exempt development from control An LEP may make provisions to declare certain development which may otherwise be permissible with consent as being Exempt Development which s 76 of the EPA Act provides may be carried out without consent, such as cl 3.1 of the Standard Instrument. However, the Standard Instrument in cl 3.3 provides that the exempt development provisions do not apply to environmentally sensitive areas as defined in cl 3.3. In addition, most LEPs contain exemptions in relation to infrastructure development and the use of Crown buildings. These provisions conventionally overcome any prohibitions in an LEP and also remove the need to obtain development consent. An example of this is cl 5.12 of the Standard Instrument. These provisions can be compared with the more extensive provisions in cl 35 and Sch 1 of the Model Provisions. However, the SEPP (Infrastructure) 2007 provides for significant exemptions for infrastructure works.

¶24-090 Provide for complying development An LEP may make provisions to declare certain development which may otherwise be permissible with consent as being Complying Development in accordance with s 76A of the EPA Act, such as cl 3.2 of the Standard Instrument.

¶24-100 Impose development standards on how development is carried out A large part of the Special Provisions of an LEP provide for

development standards on how development is carried out. “Development Standard” is defined in s 4(1) and is included in the later chapter (Chapter ¶30) on SEPP 1 and development standards. Development standards contrast with prohibitions on development as was noted by the NSW Court of Appeal in North Sydney Municipal Council v P.D. Mayoh Pty Ltd (1990) 71 LGRA 222 and discussed later in relation to SEPP 1. The importance of this distinction is that either an LEP itself or SEPP 1 — Development Standards permit some flexibility in the requirements to observe development standards, flexibility which is otherwise not permitted by an EPI as delegated legislation having force of law. Flexibility in relation to development standards is provided in cl 4.6 of the Standard Instrument. As LEPs prepared using the Standard Instrument remove the application of SEPP 1 (see cl 1.9), clauses modelled on cl 4.6 of the Standard Instrument will in future be the principal basis for providing flexibility in relation to development standards. Clause 4.6 of the Standard Instrument is covered further in the later chapter (Chapter ¶30) on SEPP 1 and development standards. The meaning of “development standard” and the operations of SEPP 1 plus cl 4.6 of the Standard Instrument will also be discussed later in relation to SEPP 1. LEPs conventionally include development standards relating to: • minimum subdivison lot sizes (cl 4.1 of the Standard Instrument) • heights of buildings (cl 4.3 of the Standard Instrument), and • FSRs (cl 4.4 of the Standard Instrument). They may also include development standards relating to: • building setbacks • building height planes, and

• minimum allotment size for the erection of a dwelling in rural areas.

¶24-110 Additional documentation may be required from an applicant An LEP may require an applicant of a DA to submit additional documentation. An example of this is the capacity for a consent authority to require an applicant to prepare and submit a heritage management document or a heritage conservation management plan under cl 5.10(5) and (6) of the Standard Instrument.

¶24-120 Requirement for consent authority to seek consultation or concurrence An LEP may require a consent authority to consult with or obtain the concurrence of another public authority in relation to a DA. Examples from the Standard Instrument of consultation and concurrence are as follows: • to notify and take into account advice of the Heritage Council in relation to development on an archaeological site (cl 5.10(7)), and • to obtain the concurrence of the Director-General of the Department of Planning to the variation of a development standard (cl 4.6(4)).

¶24-130 Impose conditions precedent on determination of a development application An LEP may include provisions imposing conditions precedent for the determination of a DA. Conventionally, these provisions require the consent authority not to grant consent unless it is satisfied as to certain matters. Examples of conditions precedent from the Standard Instrument are cl 2.8 in relation to temporary uses and cl 5.5 in relation to development in the coastal zone.

The effects of conditions precedent were discussed earlier in Chapter ¶23 in relation to zone objectives. The conclusions referred to in that earlier discussion also apply in relation to general conditions in an LEP, not just conditions precedent relating to objectives.

¶24-140 Clifford v Wyong Shire Council In Clifford v Wyong Shire Council (1996) 89 LGERA 240 (Clifford), Stein J in the NSW Land and Environment Court (NSWLEC) considered an application to declare a development consent granted by the Council to erect a 134 unit strata holiday hotel at The Entrance invalid. The land in question was owned by the Council which was also the consent authority. The Wyong LEP No 123 provided building height controls on the site of two and four storeys. However, cl 14(3) of the LEP provided that the Council may consent to a building which exceeds the maximum height if it was satisfied that: “(a) in comparison with a building which complies with the height limit, the proposed building will not be significantly more visually intrusive when viewed from the northern foreshore of Tuggerah Lake; (b) the building will not increase overshadowing of public places that are used by pedestrians (including any proposed pedestrian mall), particularly between the hours of 12 to 2pm in midwinter, compared with a possible building that complies with the height limit; (c) the building will not unreasonably deprive other buildings or sites of view; (d) approval of a taller structure is necessary in order to achieve a building design or a work, facility or other item that is of material benefit to the locality as a whole; (e) the building is otherwise in conformity with the objectives of this plan and the development principles referred to in clause 13;

(f) the building will not unreasonably overshadow any residential area or significantly reduced privacy or views; and (g) the building is designed in a manner which is appropriate to the topography of the site and the natural and built environment in which it is proposed to be situated.” The proposal was for a part 10 storey and part six storey building. The basis of the challenge included that satisfaction with cl 14(3) of the LEP was a condition precedent to approval by the Council and that the Council failed to form the requisite opinion. Alternatively, it was argued that if the Council had formed the requisite opinion, such a conclusion was not reasonably open to it and as such, it was manifestly unreasonable. Stein J held at p 249–251: “It is clear from the development application that it was in breach of cl 14(1) of the local environmental plan in that its height exceeded that permitted by the building height map. This specified a maximum of 4 storeys whereas the proposal was for 10 storeys. Unless the discretion arising under cl 14(3) could be exercised the application must fail. It is also obvious that the proposal was in breach of the development principles for the subject land spelt out in the Development Control Plan No 11 (cl 5 and fig 1). Therefore, in order that the development become permissible (as opposed to prohibited) the Council had to be satisfied as to each subparagraph of cl 14(3). These embrace the aims of the local environmental plan in cl 2 and, by reason of cl 10(3), the objectives of the 2(g) zone. It was necessary that the Council address itself to each of these matters (in so far as relevant) in order to form the requisite opinion and satisfaction. This, it must be stressed, is a separate consideration from the s 90 merit matters because cl 14(3) concerns the permissibility of the proposal. Turning to cl 14(3)(a), it is difficult to discern any part of the consultant’s report which is directed towards the issue, except perhaps indirectly in the context of s 90(1)(c). No comparison is made with a building which would comply with the height limit.

Accordingly it is extremely difficult, if not impossible, to see how the Council could conclude that the proposed 10 storey building would not be significantly more visually intrusive from the northern foreshore of the lake than a part four, part two storey building. Indeed, it is readily apparent from the material before the Council when it made its decision that the development must be significantly more visually intrusive from the northern foreshore than one which complied with the height restriction. To conclude, as the Council must have, that it was satisfied as to cl 14(3)(a) was, in light of the clear and obvious evidence to the contrary, irrational and manifestly unreasonable in the legal sense. As to cl 14(3)(b), again no comparison was made as required by the clause. The issue was touched upon briefly (at 104 of exhibit A) which stated that the building was designed to minimise overshadowing of the proposed mall, although reference is made to shadow impact on Bent Street and Oakland Avenue between 9 am and midday. Mr Andrews asked for the comparative shadow diagrams but did not receive them. Without the comparison required by the subclause there appears to be no proper basis for the Council to form the required opinion. Again, for the Council to so find was irrational. Clause 14(3)(c) concerns the unreasonable deprivation of views by the proposed building. There is no doubt that the building will deprive other buildings and sites of views to the lake. Again, the consultant’s report does not [p 250] appear to address the issue of the subclause itself. However, the question of views is canvassed under s 90 — eg 117, exhibit A. Since the subclause bespeaks ‘unreasonable’ loss of views, it was open to the decision-maker on the material before it to conclude (as it appears it did) that the building would not unreasonably deprive others of views. Considerations of weight inevitably arise. Clause 14(3)(d) was specifically addressed in the report (at 104– 105, exhibit A) and I referred to it earlier. However, what the

consultant said to the Council in his advice was not wholly to the point. Indeed, he applied the wrong test and clearly failed to understand what was required by (d). The Council had to be satisfied that a building taller than the height limit was necessary in order to achieve ‘material benefit to the locality as a whole’. Nowhere in the report is this addressed. All that is said is that a major tourist facility will provide benefit to the area by way of employment, enhanced facilities and encourage redevelopment. Accordingly, it appears that the correct test of necessity was not applied by the Council. On this issue the Council’s discretion must have miscarried. Clause 14(3)(e) directs one to the plan objectives (in cl 2) and development principles in cl 13. This latter clause adds little to the matter. However, the objectives of the Plan are important. Aim (a) is straightforward and was addressed. Aim (b) is a little more problematic. Since height is the issue under cl 14(3), it may be reasonable to conclude that the proposed building otherwise conforms with the aim of the Plan. Aim (c) of the Plan is even more problematic. There is an apparent inconsistency between the consideration of a height exceeding the maximum under cl 14(3) and the reference in aim (c) to ‘height’ and ‘tall buildings’. Were it not for the word ‘otherwise’ in cl 14(3)(e) it would be difficult, if not impossible, to see how the Council could be satisfied that it conformed with the objective. Subclause (e) is probably saying that the discretion under cl 14(3) should be exercised to permit tall buildings when the site has the ‘physical and visual capacity to accommodate them’. Viewed in this way it is difficult to see how the proposal could be seen to conform, but this is a matter on which minds might reasonably differ. Accordingly, I cannot find against the Council on this objective. Aim (e) of the Wyong Local Environmental Plan refers to the preparation of development control plans ‘to address in more detail particular aspects of the development of particular sites’. The Council adopted Development Control Plan No 11 to flesh out some of the planning principles for this and other sites in the area. It is extremely difficult to discern how the Council could be

satisfied that the building was in conformity with Development Control Plan No 11. It plainly was not. I should add that, for all intents and purposes, the only reference in Mr Andrews’ report to the aims of the local environmental plan is a statement that the proposal ‘generally conforms to the objectives’. As to cl 14(3)(f) concerning overshadowing of any residential area or significant reduction of privacy or views, this was touched on in the consultant’s report. Unfortunately, the shadow diagrams accompanying the development application were inaccurate and no new ones were obtained. The Council was therefore potentially misled by the bland statement that the ‘shadow effect on residential properties … is not considered significant’. This statement was unadorned by any real analysis of overshadowing, privacy or views, although the latter were touched upon in the s 90 considerations. Again, it must be emphasised that cl 14(3) requires separate consideration and [p 251] satisfaction from the merit considerations, which only come into play if cl 14(3) is satisfied. These then were the matters with which the Council was required to be satisfied (in a cumulative fashion) before it could approve a building which exceeded the maximum height specified in the Plan. In my opinion, it could not be satisfied in relation to cl 14(3) (a), (b), (d) and (f). Assuming, however, that the Council could have formed the required opinion, it still needed to form the opinion that the development was consistent with the zone objectives (cl 10(3)). I am of the view that, on the material before the Council at the relevant time, it could not reasonably conclude that the development was ‘compatible in scale and function to other residential development in the locality’ (objective (c) in the 2(g) zone). To do so would fly in the face of the plain facts and be an irrational opinion. In concluding that the exercise of the Council’s discretion miscarried, and that its purported satisfaction as to a number of matters required by cl 14(3) was unreasonable in the

administrative law sense, I am conscious of the strictures of the courts not to substitute its opinion for that of the decision-maker under the guise of judicial review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [PDF]. I have undertaken a cautious approach to the exercise of discretion by the decisionmaker. Where there was any material before the Council which could reasonably support the requisite opinion, I have not intervened. However, on a number of specific subclauses of 14(3) the Council either misunderstood its task or the conclusion it reached was so unreasonable that it could not have reasonably been arrived at: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. Unfortunately, I think the Council had difficulty in resolving its conflicting duties as applicant and decision-maker notwithstanding its employment of Mr Andrews as a consultant. The portion of its decision which involved satisfaction as to the permissibility of the project is one which was not reasonably open to the Council: Taylor v Hornsby Shire Council (1990) 69 LGRA 281. I am also mindful of the exposition of Wednesbury unreasonableness by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36 [PDF]. Properly applied, Wednesbury unreasonableness leaves the merits of the decision to the decision-maker. But that power must be exercised reasonably — thus the courts, in appropriate situations, may hold invalid a purported exercise of power where it is so unreasonable that no reasonable decision-maker could have taken it: see also Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410. A more recent example of the doctrine’s application in the Australian context is New South Wales Aboriginal Land Council v Aboriginal Torres Strait Islander Commission (1995) 131 ALR 559.” In Clifford, Stein J did not consider the first of the submissions put to him, namely that the Council had failed to form the requisite opinion required by the condition precedent. However, he did note that addressing the condition precedent is a separate matter from addressing the heads of consideration now in s 79C of the EPA Act

(previously s 90). Stein J relied on the alternative argument that the opinion of the Council was manifestly unreasonable. He formed this conclusion after a careful consideration of the material before the Council. He noted, that if there were any material before the Council which could reasonably support the requisite opinion, he would not have intervened. It is also noted that the condition precedent in Clifford was a provision relating to permissibility.

¶24-150 Currey v Sutherland Shire Council In Currey v Sutherland Shire Council (1998) 100 LGERA 365 (Currey), the NSW Court of Appeal considered a challenge to the validity of a development granted by Council for subdivision of waterfront land at Burraneer Bay. Clause 19(5) and (6) of the Sutherland LEP 1993 provided: “(5) The council must not consent to development on an allotment of land having a foreshore building line, unless it is satisfied that the following buildings or works (if any) will be removed before or within a reasonable time after, the development is carried out: (a) any building or work on the allotment between the line and the present mean high water mark, not being a building or work specified in subclause (4); or (b) any building or work below the present mean high water mark, being a building or work on the allotment or on land adjacent to the allotment which is in the same ownership as the allotment or to which the owner or occupier of the allotment has some form of occupancy rights. (6) However, subclause (5) does not apply to a building or work if the council is satisfied that requiring removal of the building or work: (a) would be inconsistent with any of the objectives of this clause; (b) is not necessary to achieve the objectives of this clause; or

(c) is unreasonable or unnecessary in the circumstances of the case, having regard to the provisions of any relevant development control plan.” On appeal, one of the issues raised was whether the Council had addressed the matters required under cl 19(5) and (6) of the LEP. Stein JA (with whom Mason P and Handley JA agreed) explored the extent to which he should draw an inference that the Council had not turned its mind to cl 19(5) and (6) given the absence of any other evidence. Stein JA noted that the inference may be drawn from the totality of events. He said that, while it was reasonable to assume that councillors had a general knowledge of their main planning instrument, there was no reason to assume such knowledge extended to a provision such as cl 19. He said a council will take account of a relevant consideration by reference to a previous decision, but that needs to be explicit. Stein JA held at p 374–375: “It is important to note (as I mentioned before) that the consideration of cl 19(5), and its exception in cl 19(6) comes before any merit considerations under s 90 are weighted: see Clifford v Wyong Shire Council (at 249, 251–252). Clause 19(5) is a prohibition on certain development within the foreshore building line unless the council is satisfied that the offending building will be removed. The exception in clause 19(6) requires council’s satisfaction that the removal of the building would not be inconsistent with the clause objectives and was unnecessary to achieve those objectives, or is unreasonable or unnecessary having regard to the provisions of any relevant development control plan. This consideration requires some positive attention by the council. [p 375] It would include consideration of the boatshed and its location, the clause objectives and the exercise arising under cl 19(6)(a), (b) and (c). Was it enough that the officer’s report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not.

Without some elucidation of the relevance of cl 19 to the application and the need to consider the existing two-storey boatshed in the context of cl 19(5) and (6), the bare reference to cl 19 was capable of misleading the council in its required task. This is principally because the report failed to refer to the prohibition in cl 19(5). Indeed, it may be observed from my earlier discussion of the report, that cl 19 was never identified as an issue for the council. Far from it, any councillor coming to the report (read with the appendices) would be likely to assume that there was no issue arising under cl 19 necessary to be addressed. Councillors would most likely be unaware of the prohibition contained therein or of the need to consider the possible exception under cl 19(6). Both cl 19(5) and (6) require the council to be satisfied. The rolled-up conclusion to the report would also be likely to lead members of the council to believe that the application complied with the LEP. There is, in fact, nothing in the report or its appendices to alert the council to the need to address cl 19(5) and (6) (in order to overcome the prohibition in cl 19(5) before proceeding to assess the merits of the application). In my view, the inference should be drawn that the council failed to address the precondition in cl 19(5). Accordingly, the prohibition operated and the development was prohibited under s 91(2) of the Act. The council simply adopted the officer’s recommendation which did not frame the question necessary to be addressed.” As in Clifford, Stein JA highlighted the need to address any condition precedent before addressing the heads of consideration for a DA. Stein JA’s judgment is also useful in identifying the grounds upon which it can be inferred a council failed to address a condition precedent.

¶24-160 Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Ltd

In Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Ltd [1999] NSWCA 134 (Franklins v Penrith), the NSW Court of Appeal considered a condition precedent but not in an objectives clause. The case related to a challenge to the validity of a development consent granted to Campbells Cash & Carry for a warehouse/retail store. The condition precedent in question was cl 32(2) of the Interim Development Order No 28 Penrith, inserted by LEP 231. Stein JA (with whom Powell JA and Giles JA agreed) said at paragraphs [17]–[18], [23] and [26]–[30] as follows: “17 The starting point for consideration of the appeal is the nature of cl 32(2) of LEP 231. I will repeat the content of the sub-clause: ‘(2) Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land.’ [Emphasis added] 18 The clause acknowledges that a wholesale and retail warehouse is prohibited on the subject land, but says that the prohibition may be relaxed if the Council forms a positive opinion that the ratio of wholesale to retail sales from the premises meets the requirement in the clause. The key words in the sub-clause are ‘but only if the Council is satisfied that’. It is clear that the Council had to be so satisfied prior to the granting of consent to Campbells. It had to be satisfied, as a pre-condition to approval, that Campbells’ operations from the premises comprised a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the ‘merits’ under s 90 of the Environmental Planning and Assessment Act 1979, see Clifford v Wyong Shire Council (1996) 89 LGERA 240 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 and 374. …

23 It must be remembered that the importance of the requirement in cl 32 (2) is that the development is prohibited unless the Council forms the opinion. Put shortly, the appellant submits that there was nothing in the documents before the Council to alert it to the need to be satisfied of the 60% requirement. The appellant disagrees with the three references relied on by the trial judge as establishing that Council did consider cl 32(2). The first reference in the officers’ report to Council to ‘wholesale and retail warehouse’ does no more than describe the nominated use and fails to draw attention to the provision prohibiting such a use unless satisfaction with the 60% requirement is met. The second reference to the summary of the site specific LEP is potentially misleading and contains no reference to the use being only permissible if Council formed the requisite opinion, which requirement Council was not told about. Moreover, the consultants’ report added nothing to Council’s knowledge of the need to be relevantly satisfied as a pre-condition to consent. In my opinion, none of these documents, contrary to the findings of his Honour, leads to an inference that the Council considered cl 32(2) and the 60% resale requirement. … 26 In Currey I noted that Moffitt P had referred to a Council’s ‘general knowledge, of all the relevant s 90(1) matters’ (Parramatta City Council v Hale (1982) 47 LGRA 319 at 346. See also Hemmings J in Somerville v Dalby (1990) 69 LGRA 422 at 429). Of course, in the latter case, his Honour noted that although a consent authority was under no duty to refer to all matters to be considered, it was usually sufficient to refer to ‘the most important matters or those having determining weight’. His Honour then referred to councillors’ individual expertise and local knowledge. Here local knowledge is irrelevant. What is needed is actual knowledge of the pre-condition of satisfaction to be held by Council. While it may be reasonable to presume, as I said in Currey, that councillors may have a general knowledge of their principal planning instrument and, given the history and the documents before Council, even general knowledge of the LEP

as submitted to the Minister to make, there is no reason to infer knowledge and understanding of Council’s role under cl 32(2) of LEP 321, unless it was drawn to attention. It is common ground that the precise requirement of the Council to form a satisfaction as to the 60% requirement as a pre-condition to consent was never before the Council in the documentation. 27 The circumstances of this case bear an extraordinary parallel with Currey. Although the facts are different, the situation faced by the Council in each case is similar. In Currey, the proposed development was prohibited unless the Council was satisfied that the offending building would be removed. An exception required Council’s satisfaction that the removal would not be inconsistent with the objectives of the clause and unnecessary to achieve those objectives. As I said in Currey, this consideration required some positive attention by the Council. It was a pre-condition to consent. 28 Before coming to the often difficult issue of whether the inference of failure to consider or form the requisite opinion should be drawn, it is convenient to deal with the question of the relevance of the presumption of regularity. As mentioned earlier, Bignold J thought it appropriate to apply the presumption and not to draw the inference urged by the appellant. In my opinion, the presumption of regularity has no place in a case such as this. What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an ‘essential condition’ or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paragraphs 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration. 29 Should the inference be drawn? Moffitt P cautioned in Hale about drawing the inference of failure to consider a relevant fact by a collegiate body without anxious consideration. However, he

added that if it was available to be drawn, the court should not hesitate. The inference may be more readily drawn in the absence of any evidence from Council officers with knowledge of the facts. In addition, no member of the Council was called, nor any of the authors of the reports before the Council. One might have thought that if the requirement of satisfaction had been reached by Council, but not recorded in writing, oral evidence would have been called. One cannot lightly cast aside the remarks of Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308 and many succeeding authorities, see for example, Burchett J in Alec Finlayson Pty. Limited v Armidale City Council (1994) 84 LGERA 225 at 243. 30 Accepting the documentary evidence before the court as the whole of the relevant material before the Council at the time it granted consent, one cannot escape the fact that none of it makes reference to cl 32(2) and its application or the 60% requirement. In the absence of any other evidence, this provides the foundation for a conclusion that the Council failed to consider cl 32(2) of the LEP and failed to form the requisite opinion of satisfaction as to the 60% requirement. In my opinion, the inference should have been drawn.” In Franklins v Penrith Stein JA held that, where a condition precedent is required to establish permissibility, a development is prohibited until the condition precedent is satisfied. He said that the condition precedent requires some positive attention by the consent authority evidenced in the material before the consent authority. The presumption of regularity plays no part in establishing whether the condition precedent had been met. Stein JA said a condition precedent relates to a question of power. If the condition precedent is not satisfied, there is no power to grant consent. In Franklins v Penrith, the NSW Court of Appeal was dealing with a condition precedent for something which is otherwise prohibited unless the condition precedent has been satisfied. Hence, this condition precedent is jurisdictional in nature, whereas other conditions precedent may not be jurisdictional as the matter is already within a power.

¶24-170 Bungendore Residents Group Inc. v Palerang Council and Anor (No 3) In Bungendore Residents Group Inc. v Palerang Council and Anor (No 3) [2007] NSWLEC 251 (Bungendore Residents Group Inc.), Pain J in the NSWLEC considered a challenge to the validity of a number of development consents for subdivision at Bungendore. The land in question was not connected to the existing water supply and sewer in Bungendore. Rather the applicant proposed a private sewage treatment plant. Clause 22(1) and (3) of the Yarrowlumla LEP 2002 (YLEP) provided as follows: “22.(1) Consent may be granted to the subdivision of land within Zone No 2 (v) so as to create an allotment that the consent authority is satisfied is intended to be used for the purpose of a dwelling only if the allotment has an area of 450 square metres or more in the sewered areas of Zone No 2 (v) and 2,000 square metres or more in the unsewered areas of Zone No 2 (v). … (3) Despite subclause (1), consent may be granted to a subdivision of land within Zone No 2 (v) to create allotments of less than 2,000 square metres, but not less than 1,000 square metres, in the unsewered areas of Zone No 2 (v), but only if the consent authority has had regard to a detailed analysis, including consideration of: (a) slope, and (b) ground cover, and (c) soil permeability, and (d) transpiration factors, and (e) proximity of proposed dwellings to flow lines, and (f) the location of proposed dwellings in relation to proposed waste disposal systems and to each other.”

The applicant argued that cl 22(3) was either a jurisdictional fact (Ground A) or a condition precedent (Ground B). Pain J held at paragraphs [59]–[61] and [69]: “59 I consider I should first determine whether cl 22(3) is a jurisdictional fact and/or a precondition to the exercise of power. The Applicant’s submissions referred to both as a failure to satisfy a jurisdictional prerequisite to the exercise of power by the Council. 60 The Applicant’s counsel stated the two grounds A and B were very similar and there was some overlap in the presentation of the two grounds, particularly in the application of Franklins, Currey and Hortis. I do not consider the grounds are interchangeable. I agree with the distinction drawn in the Second Respondent’s submissions that if a fact is in issue that is an essential preliminary step to the decision making process that is a jurisdictional fact. If a precondition to the carrying out of the power to grant consent is in issue then the enquiry is that undertaken in Currey, Hortis and Franklins. The Second Respondent considered the cl 22(3) issue raised by the Applicant’s two grounds A and B was more appropriately characterised as falling within the latter category, which I agree with. I will therefore determine this issue in relation to ground B in the Applicant’s submissions rather than ground A as the analysis relied on in relation to jurisdictional fact is not apposite given the wording of cl 22(3) and the provisions of the YLEP. 61 In relation to whether cl 22(3) is a ‘condition precedent’ which must be met by the Council before it can undertake a merits review as required by s 79C of the EPA Act, I agree with the Applicant’s submissions based on the Court of Appeal decisions in Currey, Franklins, Hortis that it is. … 69 The wording of cl 22(3) supports the conclusion that it is a condition precedent to the exercise of the power to grant consent by the Council as it states that consent may only be granted if the consent authority has had regard to a ‘detailed analysis’. Clause

22(3) sets out in (a) to (f) those matters to which regard must be had in the ‘detailed analysis’, providing specificity to what should be in a detailed analysis. Clause 27 states that a dwelling house must be on a lot in a subdivision consented to in accordance with cl 21 and 22. It is a matter which the Council must have regard to before it can grant consent to a subdivision of unsewered land in the Village Zone which is less than 2,000 m2 and more than 1,000 m2. It is a precondition to the exercise of the Council’s power to grant development consent in this circumstance and the reasoning in the cases set out above supports such a finding.” In Bungendore Residents Group Inc., the issue of note is that the condition precedent required a process to be carried out prior to the grant of a consent.

¶24-180 Barrick Australia Ltd v Williams In a different context in Barrick Australia Ltd v Williams [2009] NSWCA 275 (Barrick), a decision of the NSW Court of Appeal in relation to the provisions to modify a project approval under s 75W of the EPA Act, the Court addressed the question of whether a condition precedent is a jurisdictional fact. One of the issues raised was a jurisdictional issue, namely that the power of the Minister to modify an approval was constrained by whether the request to modify fell within the terms of s 75W. In relation to this issue, Basten JA (with whom McColl JA agreed) held at paragraph [26] as follows: “Where a power is said to depend upon, not the existence of a contingency, but the satisfaction of the decision-maker as to the contingency, the jurisdictional fact will be the relevant state of satisfaction: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [127]–[137]. Where there is no such express legislative statement, an inference may be drawn from surrounding provisions and from the nature of the contingency. Thus, if the contingency is something which the administrative decision-maker is required to investigate, it is more likely that the jurisdictional fact is the state of satisfaction of the officer: Sutherland Shire Council v Finch (1970) 71 SR (NSW)

315 at 324–326 (Mason JA, Moffatt [sic. Should read “Moffitt”] JA agreeing). Similarly, if the matter is one requiring evaluative judgment, it is more likely that the legislature intended that the officer form an opinion as to the contingency, rather than that the power be engaged only where the objective facts are established: cf Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [61]–[64]. By contrast, an intention to establish a jurisdictional fact, to be determined objectively, may be found where the precondition to the exercise of the power is distinct from the matters to be addressed in exercising the power and can thus be characterised as ‘an essential preliminary to the decision-making process’: Timbarra at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443; Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707 at [46]–[49]; cf Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [4.305].” While not dealing with conditions precedent within an LEP, Basten JA’s comments are of general application to such conditions precedent and indicate that the jurisdictional fact is the existence of the relevant state of satisfaction and does not extend to the facts to be determined in reaching the relevant state of satisfaction.

¶24-190 Hub Action Group Incorporated v Minister for Planning and Orange City Council In Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 (Hub Action Group Inc.), Preston CJ in the NSWLEC considered a merit appeal against the Minister’s decision to approve a waste disposal facility at Molong. The Cabonne Local Environmental Plan 1991 contained two relevant conditions precedent in cl 10(1). This provided as follows: “(1) The Council shall not consent to an application to carry out development on land within Zone No 1 (a), 1 (c) or 7 (c) unless it has made an assessment, where relevant, of the effect of the carrying out of that development on:

(a) the present and potential use of the land for the purposes of agriculture, … (2) In assessing the effect referred to in subclause (1), the Council shall have regard not only to the land the subject of the application but also to land in the vicinity.” Preston CJ held at paragraphs [37]–[38] as follows: “37 Clause 10(1) of the LEP imposes two preconditions to a consent authority exercising the power to grant consent to development on land to which the clause applies: (a) the consent authority has made an assessment of the effect of carrying out the development on the matters specified in paragraphs (a) to (f), the first of which is ‘the present and potential use of the land for the purposes of agriculture’; and (b) the consent authority is satisfied that the development will not have an adverse effect on the long term use, for sustained agricultural production, of any prime crop and pasture land. 38 The first precondition prescribes a process that must be undertaken: the making of an assessment of the kind specified. The second precondition requires the consent authority to form the requisite opinion of satisfaction. Both preconditions must be satisfied before the weighing of the merit considerations under s 79C(1) of the Act. Making the requisite assessment and forming the requisite opinion of satisfaction enlivens the power to grant consent to the development: see, in relation to the first type of precondition, Bungendore Residents Group Inc v Palerang Council & Anor (No 3) [2007] NSWLEC 251 (15 May 2007) at [69] and [70] and in relation to the second type of precondition, Clifford v Wyong Shire Council (1996) 89 LGERA 240 at 249, 251–252; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372, 374; Franklins Ltd v Penrith City Council [1999] NSWCA 134 (13 May 1999) at [18], [27], [28] and [35]; Hortis v Manly Council

(1999) 104 LGERA 43 at 87 affirmed Manly Council v Hortis (2001) 113 LGERA 321 at 329–330; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (20 April 2001) at [7]; and Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 at 22 [42]–[44].” In Hub Action Group Inc., Preston CJ identifies two types of conditions precedent: (1) a precondition which prescribes a process that must be undertaken, being in that case an assessment, and (2) a precondition which requires the consent authority to form a requisite opinion of satisfaction. Both preconditions must be met before embarking upon an assessment under the heads of considerations in s 79C, as the satisfaction of the preconditions enlivens the power to grant consent. It will be noted in Hub Action Group Inc. that both preconditions were prefaced by the requirement that the Council shall not grant consent unless the preconditions are satisfied. In forming the state of satisfaction in relation to a condition precent, the decision-maker must reach that state rationally, logically and reasonably (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS)). The second type of condition precedent requiring the formation of a requisite opinion is the most common, and clearly is a condition precedent. The first type of condition precedent is less clear for two reasons: (1) It differs only slightly from a head of consideration rather than a satisfaction precondition, the difference being that, in the latter, the consent authority is enjoined not to grant consent unless it has considered something, while in the former, the consent authority is required to consider something in deciding whether to grant consent. The distinction is that the precondition has both a temporal element (before granting consent) and a negative element (the consent authority shall not grant consent), which

must be present or capable of being inferred. (2) The process called for is merely consideration (which of course should occur in the process of determination), rather than some process more distinct from consideration, such as exhibition of or obtaining a particular document or study.

¶24-200 Impose additional heads of consideration in the determination of a development application An LEP may require the consent authority to take into account additional heads of consideration in the determination of a DA. An example of such a provision is cl 6.4 of the Canada Bay LEP 2008 which requires consideration of public areas along the foreshore of development in foreshore areas. While an LEP provides additional heads of consideration, these additional matters are required to be considered along with those matters mandated in s 79C of the EPA Act.

¶24-210 Principles relating to special provisions in a Local Environmental Plan The key principles derived from the discussion on special provisions in an LEP are as follows: Principle 1: In addition to the provisions contained in the Land Use Table of an LEP, providing that development for a specified purpose is permissible with or without consent, or prohibited, an LEP may contain provisions with some or all of the following effects: • to provide for a commencement date for the LEP, identify the land to which the LEP applies, provide for maps, definitions and savings and transitional provisions • to identify the consent authority or authorities (Such provisions need to be considered in the context of provisions in the regulations and SEPPs.)

• to control development on land not otherwise controlled by the zoning and Land Use Table, particularly on unzoned lands, land below mean low water mark and roads • to expand the definition of development to encompass controls on matters such as advertising, vegetation removal and damage, and heritage conservation • to permit development otherwise prohibited under the Land Use Table, including provisions for “spot re-zonings”, conservation incentives, temporary uses and flexibility near zone boundaries • to prohibit development otherwise permissible under the Land Use Table • to exempt development from control either by declaring it Exempt Development or infrastructure development and the use of existing buildings of the Crown • to provide for Complying Development which is permissible with consent but instead of requiring a development consent it requires a complying development certificate • to impose development standards on how permissible development is carried out, in relation to matters such as lot size, FSR, height and other standards. • to permit some flexibility in the need for absolute compliance with development standards • to require an applicant to submit additional documentation to accompany or support a DA • to require the consent authority to consult with or obtain the concurrence of another public authority before granting consent • to require a consent authority to satisfy conditions precedent prior to determining a DA, and/or

• to require a consent authority to take into account additional heads of consideration over and above the general standard heads of consideration in determining a DA. Principle 2: Where an LEP includes provisions which operate as a condition precedent to the exercise of the power to determine a DA, the following should be considered: • The condition precedent is expressed by requiring the consent authority either: – to be “satisfied” as to some matter (Clifford, Currey, Franklins v Penrith, Hub Action Group Inc.), or – to have undertaken some process prior to determining a DA (Bungendore Residents Group Inc., Hub Action Group Inc.). • If there is any jurisdictional fact involved, it is simply the existence of the relevant state of satisfaction, and not the facts to be determined in reaching the relevant state of satisfaction. Otherwise, it is simply a required precondition to the exercise of the power to determine a DA (Barrick, Bungendore Residents Group Inc.). • Addressing the condition precedent is a separate and distinct question from addressing the heads of consideration for a DA under s 79C and must be addressed before consideration of the general heads of consideration (Clifford, Currey). • The presumption of regularity plays no part in establishing whether a condition precedent has been met (Franklins v Penrith). In drawing an inference as to whether a condition precedent has been met, consideration is given to the totality of events including the reports and material before the consent authority (Currey, Franklins v Penrith). • The scope for judicial review for conditions precedent in an LEP is the same as for conditions precedent in relation to zone objectives outlined previously, namely whether the decision-

maker could have formed the required opinion or state of satisfaction rationally, logically and reasonably (SZMDS).

DEFINITIONS AND DICTIONARIES ¶25-010 Rules of statutory interpretation and meaning of words In applying an Environmental Planning Instrument (EPI), the usual rules of statutory interpretation must be used. Thus, words should be given their ordinary and natural meaning. In many instances words used in EPIs are specifically defined in definitions or dictionaries contained within each EPI. Where a word or term is specifically defined in an EPI, that definition applies and displaces the ordinary and natural meaning. Definitions in EPIs take a number of forms as follows: • An exhaustive and complete definition: Where a word is defined by the expression “means”, that definition is intended to be exhaustive. It may, according to its terms, expand, contract or alter the ordinary and natural meaning of the word or term. • An expansionary definition: Where a word is defined by the expression “includes”, that definition is intended to expand upon the ordinary and natural meaning of a word or term by adding to it whatever is included by the definition.1 Where a word or term is not defined in an EPI, some assistance may be obtained by referring to a regular dictionary to ascertain its ordinary and natural meaning. Footnotes 1

See additional discussion in Pearce, DC & Geddes, RS, 2006, Statutory Interpretation in Australia, 6th edition, Lexis Nexis, Australia, p 238ff.

¶25-020 House of Peace v Blacktown City Council — the meaning of “church” House of Peace v Blacktown City Council [2000] NSWCA 44 was a decision of the NSW Court of Appeal on the meaning of the word “church” in a development consent, and whether a consent for a church authorised its use as a mosque, Mason P (with whom Stein JA and Giles JA agreed) said at paragraphs [29]–[31], [33] and [54]: “29 The limitations of dictionaries are discussed with magisterial clarity by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 at 560–1. Because the passage is lengthy I do not set it out. However, I respectfully agree with what his Honour has written there. 30 The task in hand is not a philosophical, linguistic or etymological exercise probing the inner or outer limits of ‘church’ in 1954 Australian usage. In the end it is a search for the meaning of a particular document issued in a particular context. 31 With these caveats, I set out a range of dictionary definitions of ‘church’, confining myself to usage with reference to a building as distinct from a body of believers. … … 33 From this material I would draw the following tentative conclusions about the dictionary meaning of ‘church’ in Australian English in the 1950s: 1. There is a slight preponderance favouring an exclusive definition, confined to buildings used for Christian worship. 2. Nevertheless, the dictionaries provide ‘evidence’ of usage that extended beyond Christianity (eg Collins, OHP2), albeit that some (eg OED3) sources indicated this as an obsolete meaning.

3. The most authoritative Australian dictionary (Macquarie) supports the wider usage, albeit as at 1981. … 54 The 1954 Consent was not concerned to ensure that liturgy remained orthodox according to Christian standards. It was concerned to authorise the use of a building inter alia as a ‘church’, the word being apt to the proposed building but illustrative of the genus of a place of public worship being the relevant purpose in the CCPS.4 In my view, in the operative planning law context the preferable conclusion that ‘church’ was used in a sense in which the dictionaries indicate was open to use it, namely the sense of a place of public worship. The mosque fits this description.” Footnotes 2

CCH comment: “OHP” is the abbreviation for the Shorter Oxford Dictionary on Historical Principles.

3

CCH comment: “OED” is the abbreviation for the Oxford English Dictionary.

4

CCH comment: “CCPS” refers to the County of Cumberland Planning Scheme.

¶25-030 Drake & Ors; Auburn Council v Minister for Planning and Anor; Collex Pty Ltd — the meaning of “goods” In Drake & Ors; Auburn Council v Minister for Planning and Anor; Collex Pty Ltd [2003] NSWLEC 270, Bignold J in the NSW Land and Environment Court (NSWLEC) referred to the role of dictionaries to ascertain the meaning of “goods”. Bignold J held at paragraphs [66]–

[68]: “66. Although Collex’s argument that the word ‘goods’ is sufficiently wide to include putrescible wastes (destined for ultimate landfill disposal) gains some support from dictionary meanings of ‘goods’ I do not think that support (which I would regard as necessarily tenuous and inconclusive) captures the ordinary usage or understanding of the word in contemporary society. In this respect, the true meaning of the term ‘goods’ is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role: see Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541 at 560/561 per Mahoney JA and House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 at 447 per Mason P. 67. In the interests of economy, I would confine quotation from the illuminating judgment of Mahoney JA in Provincial Insurance to the first two paragraphs of the extended passage cited, where his Honour states: ‘Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply. In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained: see M P Metals Pty Ltd v Commissioner of Taxation (1968) 117 CLR 631 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304–305; Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2

NSWLR 32 at 53. But that meaning is the ordinary usage of society: Shore v Wilson (1842) 9 Cl & Fin 355 at 527; 8 ER 450 at 518 per Coleridge J and R v Peters (1886) LR 16 QBD 636 at 641. And it is to be taken from the judge’s understanding of the sense in which words are used: see, eg, NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514 per Kitto J. In Midland Railway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeit in dissent) said (at 35) that, in considering the meaning of a term such as mines and minerals, the opinion of particular judges may be a safer guide than any definitions or illustrations to be found in dictionaries.’ 68. In my opinion, the ordinary usage and meaning of the terms ‘goods’ in our contemporary society would not accommodate or include the concepts of ‘waste’, ‘garbage’, ‘rubbish’ etc.” Two noteworthy pieces of judicial advice on statutory interpretation in this field are as follows: (1) In Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249, Spigelman CJ held at paragraph [25]: “Judges no longer approach a statute with scissors in one hand and a dictionary in the other.” (2) In Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17, Biscoe J held at paragraph [21]: “The broad aim of legal interpretation of any written instrument, including a development consent, is to give it effect, not to frustrate it; to oil its wheels, not to put a spanner in its works nor even grit in its oil; to give effect to the reasonable expectations it engenders.”

¶25-040 Which is the correct definition? Where a definition in a statutory instrument is expressed as having the same meaning as in another statutory instrument, and the definition in

the other statutory instrument has been amended, the question arises as to whether the correct definition is that contained in the other statutory instrument under consideration or at the present date. This issue is addressed by Bignold J in Belle Design Group Pty Limited v Woollahra Municipal Council [2004] NSWLEC 284 at paragraphs [9]– [42] where his Honour concluded (after an extensive discussion of the authorities) that it should be at the date of the making of the statutory instrument under consideration.

¶25-050 Newcastle City Council v Kermir Pty Ltd Some general interpretive principles relating to EPIs have also been espoused by judges. In Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289 in a case dealing with an application for a declaration that a proposed exhibition centre was prohibited in a zone permitting recreation areas, recreation facilities and showgrounds, Stein J held at p 294: “The Court should also not lose sight of the fact that the LEP is a modern environmental planning instrument made under the Environmental Planning and Assessment Act 1979 (NSW). It is also subordinate planning legislation not drafted by lawyers with the particularity or specificity of a statute. Rather than an overtechnical approach to construction the LEP should be given a practical outcome if that is consistent with a reasonable interpretation. Such an approach also gives the planning objectives in the Table work to do.”

¶25-060 Egan v Hawkesbury City Council A less benevolent view was taken of the drafting of EPIs by Meagher JA in Egan v Hawkesbury City Council (1993) 79 LGERA 321 at p 331 where he held. “This ground of appeal concerns the meaning of one word, ‘industries’, in the Hawkesbury Local Environmental Plan 1989. If that instrument were expressed in rational concepts or drafted with clarity, the result which Mahoney JA reaches would be

inevitable. But in my view, his Honour’s view overlooks the fact that the instrument being construed is a local environmental plan, drafted in specialised bureaucratic jargon to whose authors neither logic nor clarity has urgent attraction. However irrational it might otherwise seem to be, the authors of the instrument seem to use the word ‘industries’ as meaning something like ‘industries other than industries specifically defined’.”

¶25-070 Matic v Mid-Western Regional Council In Matic v Mid-Western Regional Council [2008] NSWLEC 113, Jagot J in the NSWLEC held at paragraphs [7]–[9]: “7 The meaning of a provision in an environmental planning instrument must be determined having regard to its context and purpose (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37]–[46] and [63]; s 33 of the Interpretation Act 1987). ‘Context’ has a wide scope and may include the ‘mischief which … one may discern the statute was intended to remedy’ so that, by this method, an alternative construction to the literal meaning may be preferred if it is ‘reasonably open and more closely conforms to the legislative intent’ (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408). 8 Legislative intent, however, is not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable. Intent is to be objectively determined. It is manifested ‘by the use of language’ in the document to be construed (Wilson v Anderson and Others (2002) 213 CLR 401 at [8]). Accordingly: ‘… it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred’ (Singh v The Commonwealth and Another (2004) 222 CLR 322 at [19]).’

9 These requirements have particular significance for the construction of environmental planning instruments. The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context. There is no room for ‘some preconceived general notion of what constitutes planning’ (Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25] ‘any attempt to always find planning logic in planning instruments is generally a barren exercise’.”

¶25-080 Principal definitions in the Standard Instrument and the Model Provisions It is worthwhile to briefly examine some of the principal definitions contained in the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument) and its predecessor, the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions). Floor space ratio In relation to floor space ratio, the Standard Instrument provides in cl 4.4 and cl 4.5 as follows: “4.4 Floor space ratio [optional] (1) The objectives of this clause are as follows: (a) [set out objectives of the clause] (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.” “4.5 Calculation of floor space ratio and site area [optional] (1) Objectives

The objectives of this clause are as follows: (a) to define floor space ratio, (b) to set out rules for the calculation of the site area of development for the purpose of applying permitted floor space ratios, including rules to: (i) prevent the inclusion in the site area of an area that has no significant development being carried out on it, and (ii) prevent the inclusion in the site area of an area that has already been included as part of a site area to maximise floor space area in another building, and (iii) require community land and public places to be dealt with separately. (2) Definition of ‘floor space ratio’ The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out. In addition, subclauses (4)–(7) apply to the calculation of site area for the purposes of applying a floor space ratio to

proposed development. (4) Exclusions from site area The following land must be excluded from the site area: (a) land on which the proposed development is prohibited, whether under this Plan or any other law, (b) community land or a public place (except as provided by subclause (7)). (5) Strata subdivisions The area of a lot that is wholly or partly on top of another or others in a strata subdivision is to be included in the calculation of the site area only to the extent that it does not overlap with another lot already included in the site area calculation. (6) Only significant development to be included The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot. (7) Certain public land to be separately considered For the purpose of applying a floor space ratio to any proposed development on, above or below community land or a public place, the site area must only include an area that is on, above or below that community land or public place, and is occupied or physically affected by the proposed development, and may not include any other area on which the proposed development is to be carried out. (8) Existing buildings The gross floor area of any existing or proposed buildings within the vertical projection (above or below ground) of the

boundaries of a site is to be included in the calculation of the total floor space for the purposes of applying a floor space ratio, whether or not the proposed development relates to all of the buildings. (9) Covenants to prevent ‘double dipping’ When development consent is granted to development on a site comprised of 2 or more lots, a condition of the consent may require a covenant to be registered that prevents the creation of floor area on a lot (the restricted lot) if the consent authority is satisfied that an equivalent quantity of floor area will be created on another lot only because the site included the restricted lot. (10) Covenants affect consolidated sites If: (a) a covenant of the kind referred to in subclause (9) applies to any land (affected land), and (b) proposed development relates to the affected land and other land that together comprise the site of the proposed development, the maximum amount of floor area allowed on the other land by the floor space ratio fixed for the site by this Plan is reduced by the quantity of floor space area the covenant prevents being created on the affected land. (11) Definition In this clause, public place has the same meaning as it has in the Local Government Act 1993.” Gross floor area The Dictionary in the Standard Instrument defines “gross floor area” as follows: “gross floor area means the sum of the floor area of each floor of

a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to the car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.” The Dictionary in the Standard Instrument defines “site area” as follows: “site area means the area of any land on which development is or is to be carried out. The land may include the whole or part of one lot, or more than one lot if they are contiguous to each other, but does not include the area of any land on which development is not permitted to be carried out under this Plan.

Note. The effect of this definition is varied by clause 4.5 for the purpose of the determination of permitted floor space area for proposed development.” These contrast with the definition of “gross floor area” and “site” area in the Model Provisions as follows: “gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1 400 millimetres above each floor level excluding: (i) columns, fin walls, sun control devices and any elements, projections or works outside the general line of the outer face of the external wall, (ii) lift towers, cooling towers, machinery and plant rooms and ancillary storage space and vertical air-conditioning ducts, (iii) car-parking needed to meet any requirements of the council and any internal access thereto, (iv) space for the loading and unloading of goods.” “site area means the area of land to which an application for consent under the Act relates, excluding therefrom any land upon which the development to which the application relates is not permitted by or under the local environmental plan.” The Standard Instrument definition of gross floor area is more restrictive than previously applying under the Model Provisions. • It explicitly includes attic and basement habitable rooms where there are otherwise no external walls, and mezzanine areas where there is only part of an external wall. • It changes the reference point from the outer face of the external enclosing walls to now the internal face of external walls or walls separating from another building. • It excludes only basement storage, not all ancillary storage space.

• It includes (by virtue of cl 4.5(8)) the gross floor area of any building within the vertical projection (above and below ground) of the boundary of the site, and this includes stratum not owned by the applicant (see cl 4.5(5)). Building height Building height is defined in the Dictionary of the Standard Instrument as follows: “building height (or height of building) means the vertical distance between ground level (existing) and the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.” It is noteworthy that the “building height”, as defined, leaves doubt as to what is “the highest point of the building”. It could be the maximum vertical elevation of the building or the highest vertical point reached by the building. On a sloping site these could well differ.

¶25-090 Definitions of key purposes of development The Standard Instrument contains definitions of key purposes of development, which are fundamental to the proper construction of Local Environmental Plans (LEPs), and a standard Land Use Table, both of which form the basis of an LEP, which is based on the Standard Instrument. Standard Instrument — a hierarchy of purposes of development The Standard Instrument has been constructed on an explicit hierarchy of purposes of development, where there are higher order genus of terms under which sit a number of specific species of purposes (using a genus/species model) such as: • residential accommodation • agriculture • industry

• food and drink premises • commercial premises, and • retail premises. The hierarchy is illustrated graphically in Planning Circular LEPMaking Processes.5 The Standard Instrument in cl 2.3(3)(b) provides that “a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone”. Thus, in so far as the Land Use Table is concerned each of the definitions is mutually exclusive. Model Provisions — genus/species model applicable This is in contrast to the Model Provisions where the genus/species model was applicable, as was the case in Egan v Hawkesbury City Council (1993) 79 LGERA 321 where the majority of the NSW Court of Appeal held that an extractive industry was also an industry. Some level of mutual exclusivity was applied by the use of the phrase “but does not include a building or place elsewhere specifically defined in this clause” as an addition to a number of definitions in cl 4(1) of the Model Provisions (eg the definition of “commercial premises”, and “shop”). This rider was found by the majority of the NSW Court of Appeal in Council of the Shire of Warringah v Jennings Group Ltd [1992] NSWCA 50 to mean as follows: “The clear intention is to exclude purposes which would otherwise be a species of that genus.” (per Cripps JA). Some of the key definitions of purposes of development contained in the Standard Instrument are covered in the following sections. Footnotes 5

NSW Government, NSW Department of Planning, 10 March 2011, Planning Circular LEP-Making Process, No PS 11-

011.

¶25-100 Residential development definitions under the Standard Instrument and Model Provisions The Standard Instrument contains the following definitions: “residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers’ dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks.” “dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.”

“dwelling house means a building containing only one dwelling. Note. Dwelling houses are a type of residential accommodation — see the definition of that term in this Dictionary.” “dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note. Dual occupancies are a type of residential accommodation — see the definition of that term in this Dictionary.” “dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. Note. Dual occupancies (attached) are a type of dual occupancy — see the definition of that term in this Dictionary.” “dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. Note. Dual occupancies (detached) are a type of dual occupancy — see the definition of that term in this Dictionary.” “attached dwelling means a building containing 3 or more dwellings, where: (a) each dwelling is attached to another dwelling by a common wall, and (b) each of the dwellings is on its own lot of land, and (c) none of the dwellings is located above any part of another dwelling. Note. Attached dwellings are a type of residential accommodation — see the definition of that term in this Dictionary.” “residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.

Note. Residential flat buildings are a type of residential accommodation — see the definition of that term in this Dictionary.” The definitions of “dwelling” and “dwelling house” are the same in effect as those contained in s 4(1) of the Model Provisions. The definition of “residential flat building” in the Standard Instrument has increased the number of dwellings required from two (in the Model Provisions) to three. The definition of “dual occupancy” and “attached dwelling” are new definitions in the Standard Instrument with no comparable definition in the Model Provisions.

¶25-110 Industry definitions under the Standard Instrument and Model Provisions The Standard Instrument contains the following definitions: “industry means any of the following: (a) general industry, (b) heavy industry, (c) light industry, but does not include: (d) rural industry, or (e) extractive industry, or (f) mining.” “general industry means a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity. Note. General industries are a type of industry — see the definition of that term in this Dictionary.” “heavy industry means a building or place used to carry out an industrial activity that requires separation from other development because of the nature of the processes involved, or the materials used, stored or produced, and includes:

(a) hazardous industry, or (b) offensive industry. It may also involve the use of a hazardous storage establishment or offensive storage establishment. Note. Heavy industries are a type of industry — see the definition of that term in this Dictionary.” “light industry means a building or place used to carry out an industrial activity that does not interfere with the amenity of the neighbourhood by reason of noise vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise, and includes any of the following: (a) high technology industry, (b) home industry. Note. Light industries are a type of industry — see the definition of that term in this Dictionary.” “industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity.” The definition of “industry” in cl 4(1) of the Model Provisions is as follows: “industry means: (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962, or (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business,

but does not include an extractive industry.” “light industry means an industry, not being an offensive or hazardous industry, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise.” “offensive or hazardous industry means an industry which, by reason of the processes involved or the method of manufacture or the nature of the materials used or produced, requires isolation from other buildings.” The Standard Instrument provides for a new category of “general industry” being other than heavy industry or light industry. The Standard Instrument provides a new and broader definition of what constitutes “industrial activity”.

¶25-120 Food and dining definitions under the Standard Instrument and Model Provisions The Standard Instrument contains the following definitions: “food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following: (a) a restaurant or café, (b) take away food and drink premises, (c) a pub. Note. Food and drink premises are a type of retail premises — see the definition of that term in this dictionary.” “restaurant or café means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises,

whether or not liquor, takeaway meals and drinks or entertainment are also provided. Note. Restaurants or cafes are a type of food and drink premises — see the definition of that term in this Dictionary.” “take away food and drink premises means premises that are predominantly used for the preparation and retail sale of food or drink (or both) for immediate consumption away from the premises. Note. Take away food and drink premises are a type of food and drink premises — see the definition of that term in this Dictionary.” The Model Provisions contained a simple definition of “refreshment room” as follows: “refreshment room means a restaurant, café, tea room, eating house or the like.” This definition did not address the changes in dining with the growth of take away and convenience eating.

¶25-130 Commercial and retail premises definitions under the Standard Instrument and Model Provisions The Standard Instrument contains the following definitions: “commercial premises means any of the following: (a) business premises, (b) office premises, (c) retail premises.” “business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or

(b) a service is provided directly to members of the public on the regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. Note. Business premises are a type of commercial premises — see the definition of that term in this Dictionary.” “office premises means a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used. Note. Office premises are a type of commercial premises — see the definition of that term in this Dictionary.” “retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following: (a) bulky goods premises, (b) cellar door premises, (c) food and drink premises, (d) garden centres, (e) hardware and building supplies, (f) kiosks, (g) landscaping material supplies,

(h) markets, (i) plant nurseries, (j) roadside stalls, (k) rural supplies, (l) shops, (m) timber yards, (n) vehicle sales or hire premises, but does not include highway service centres, service stations, industrial retail outlets or restricted premises. Note. Retail premises are a type of commercial premises — see the definition of that term in this Dictionary.” “bulky goods premises means a building or place the principal purpose of which is the sale, hire or display of bulky goods, being goods that are of such size or weight as to require: (a) a large area for handling, display or storage, and (b) direct vehicular access to the site of the building or place by members of the public for the purpose of loading or unloading such goods into or from their vehicles after purchase or hire, and including goods such as floor and window supplies, furniture, household electrical goods, equestrian supplies and swimming pools, but does not include a building or place used for the sale of foodstuffs or clothing unless their sale is ancillary to the sale or hire or display of bulky goods. Note. Bulky goods premises are a type of retail premises — see the definition of that term in this Dictionary.” The Standard Instrument splits the definition of “commercial premises” in the Model Provisions into business premises and office premises and adds to the genus retail premises. The definition of “commercial premises” in cl 4(1) of the Model

Provisions is as follows: “commercial premises means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause.” The Standard Instrument retains a definition of “public administration building”, a renaming of “public building” in the definition in the Model Provisions. The Model Provisions dealt with retail premises within the definition of “shop” in cl 4(1) as follows: “shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, a building or place used for a purpose elsewhere specifically defined in this clause.”

¶25-140 Mining and extractive industries definitions under the Standard Instrument and Model Provisions The Standard Instrument contains the following definitions: “mining means mining carried out under the Mining Act 1992 or the recovery of minerals under the Offshore Minerals Act 1999, and includes: (a) the construction, operation and decommissioning of associated works, and (b) the rehabilitation of land affected by mining. Note. Extractive industries are not a type of industry — see the definition of that term in this Dictionary.” “extractive industry means the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging, tunnelling or quarrying, including the

storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming. Note. Extractive industries are not a type of industry — see the definition of that term in this Dictionary.” “extractive material means sand, soil, gravel, rock or similar substances that are not minerals within the meaning of the Mining Act 1992.” The Model Provisions contained no definition of “mining” — they contained a definition of “extractive industry” in s 4(1) as follows: “extractive industry means: (a) the winning of extractive material, or (b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land.” “extractive material means sand, gravel, clay, turf, soil, rock, stone or similar substances.” The Standard Instrument definition extends the meaning of mining to include decommissioning and land rehabilitation. The definition of extractive industry has been significantly narrowed in the Standard Instrument to exclude undertaking depending on the winning of extractive materials from the land on which it is carried out: see Blue Metal and Gravel (Country) Pty Ltd v Kiama Municipal Council (1985) 54 LGRA 305, although that change is largely rendered neutral by the operation of the SEPP (Mining, Petroleum Production and Extractive Industries) 2007 cl 7(4).

PART F SCOPE, POWER AND MAKING OF STATE ENVIRONMENTAL PLANNING POLICIES ¶26-010 State Environmental Planning Policies are Environmental Planning Instruments State Environmental Planning Policies (SEPPs) are one of the two types of Environmental Planning Instruments (EPIs) (the other being Local Environmental Plans (LEPs)). As such, SEPPs are subject to the same principles as applying to all EPIs (see Part B of this book). The current provisions relating to SEPPs are contained in s 37 and s 38 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as follows: “Division 2 SEPPs 37 Governor may make environmental planning instruments (SEPPs) (1) The Governor may make environmental planning instruments for the purpose of environmental planning by the State. Any such instrument may be called a State environmental planning policy (or SEPP). (2) Without limiting subsection (1), an environmental planning instrument may be made by the Governor to make provision with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance. 38 Consultation requirements Before recommending the making of an environmental planning instrument by the Governor, the Minister is to take such steps, if any, as the Minister considers appropriate or necessary:

(a) to publicise an explanation of the intended effect of the proposed instrument, and (b) to seek and consider submissions from the public on the matter. Note. See also section 34A. 39 (Repealed)” The provisions relating to SEPPs contained in the EPA Act as originally enacted were as follows: “Division 2 — State environmental planning policies Decision or direction to prepare draft State environmental planning policy 37. (1) The Director may, after consultation with such public authorities as he determines, prepare a draft State environmental planning policy with respect to such matters as are, in the opinion of the Director, of significance for environmental planning for the State, and may submit it to the Minister. (2) The Minister may, after consultation with such Minister as he determines, cause to be prepared by the Director for submission to the Minister a draft State environmental planning policy with respect to any matter specified by the Minister being a matter which is, in the opinion of the Minister, of significance for environmental planning for the State. Format of State environmental planning policies 38 Subject to this Act and the regulations, the format, structure and subject-matter of a State environmental planning policy or draft State environmental planning policy shall be as determined by the Minister. Making of State environmental planning policies by the

Governor 39 (1) The Minister may, on the submission to him by the Director of a draft State environmental planning policy, recommended to the Governor the making of a State environmental planning policy — (a) in accordance with that draft State environmental planning policy submitted to the Minister; or (b) in accordance with that draft State environmental planning policy with such alterations as the Minister thinks fit, or he may decide not to make that recommendation. (2) The Minister shall take such steps as he considers appropriate or necessary to publicise a draft State environmental planning policy and to seek and consider submissions from the public before he makes such a recommendation. (3) The Minister may not make such a recommendation except with respect to such matters as are, in his opinion, of significance for environmental planning for the State. (4) The Governor may make a State environmental planning policy in accordance with a recommendation made under this section. (5) A State environmental planning policy shall apply to the State or such part of the State as is described in the policy.” Section 38 of the original EPA Act was deleted by s 3 and Sch 2[6] of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW). Sections 37 and 39 of the original EPA Act were deleted by s 3 and Sch 1[10] of the Environmental Planning and Assessment (Amendment) Act 2008 No 36 (NSW) (2008 Amendments) and they

were replaced by the current s 37 and s 38.

¶26-020 Current provisions The current provisions relating to SEPPs made the following significant changes in relation to SEPPs: • They removed all references to the Director-General of the Department of Planning, similar to what was done in relation to LEPs. Thus, there is no necessity for the Minister to receive, let alone consider, a report from the Director-General. This reflects a legislative intention to remove a formal role for professional planning advice in the process of preparing SEPPs. • The provisions relating to the discretion for consultation with other public authorities and Ministers have been removed. • While s 37(1) refers to an EPI made by the Governor as a “State environmental planning policy (or SEPP)”, the remainder of s 37 and s 38 simply refer to them as an “environmental planning instrument made by the Governor”, thus avoiding the use of the term SEPP. While there are no specific legal consequences of this, when combined with the provisions relating to LEPs enacted in the 2008 Amendments to the EPA Act, they reflect the blurring of any distinction between State and local matters in the 2008 Amendments.

¶26-030 Power to make a State Environmental Planning Policy SEPPs are formally made by the Governor on the recommendation of the Minister. In relation to the power to make a SEPP, s 37(2) provides that an EPI may be made by the Governor “with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance”. Thus, the power to make a SEPP is constrained to matters in relation

to which the Minister has formed a subjective opinion that are of State or regional environmental planning significance. There is an interesting reformulation of the test for what a SEPP may make provisions about. In the provisions applying before the 2008 Amendments, the Minister could not make a recommendation to the Governor except with respect to such matters as the Minister considered are of “significance for environmental planning for the State” (s 39(3) of EPA Act pre-2008 Amendments). In addition, before the 2008 Amendments the Minister had the power to make a Regional Environmental Plan (REP) in relation to matters which were, in the opinion of the Minister, “of significance for environmental planning for the region or part of the region to which that regional environmental plan applies” (s 51(2) of the EPA Act pre-2008 Amendments). After the 2008 Amendments, the Governor was empowered to make EPIs “for the purpose of environmental planning by the State” (s 37(1)). It will be noted that the reference to “by the State” is simply to who makes them, a distinction now somewhat obscure given that LEPs are not merely made by the Minister but totally controlled by the Minister. Thereafter, s 37(2) is expressed as “without limiting subsection (1)” and proceeds to provide that an EPI may be made by the Governor in relation to any matter that, “in the opinion of the Minister, is of State or regional environmental planning significance”. By expressing s 37(2) as not limiting s 37(1), this appears directed at limiting the scope of judicial review of the Minister’s opinion. Also, by structuring s 37(2) as relating to the power of the Governor, it suggests that any action for judicial review would be directed against the Governor. As the Governor is part of the legislature, courts would be reluctant to intervene in relation to what could be perceived as a legislative matter. With these cautionary words, the following cases relating to the exercise of the power to make a SEPP and REP will be examined, noting that all of these cases relate to the EPA Act as it existed prior to the 2008 Amendments.

¶26-040 Leichhardt Municipal Council v Minister for

Planning and Director of Planning In Leichhardt Municipal Council v Minister for Planning and Director of Planning (1992) 78 LGERA 306 (Leichhardt v Minister), the NSW Court of Appeal considered a challenge by the Council to the validity of two EPIs made by the Minister, a SEPP (being SEPP No 32 — Urban Consolidation (Redevelopment of Urban Land) (SEPP No 32)) and a REP (being the Greater Metropolitan REP No 1 (Redevelopment of Urban Land) (GMREP)). SEPP No 32 aimed to promote the redevelopment of surplus lands for multi-unit housing and urban consolidation. It also provided criteria for the Minister to consider in deciding if the redevelopment of a site was a matter of regional environmental planning significance. The GMREP applied to four former industrial sites in Balmain and made the Minister the consent authority for the four sites. The Council challenged the validity of the SEPP and the REP on a number of grounds including that: • the provisions of the SEPP constituting the Minister as consent authority and imposing positive obligations on councils to select sites for urban consolidation were beyond power • the Minister, in forming the requisite opinion as to State and regional significance for environmental planning, had failed to have regard to relevant matters and further, he acted unreasonably in providing the opinions, and • the SEPP and REP were prepared for improper purposes. Sheller JA (with whom Priestley JA and Meagher JA agreed) held in relation to these grounds at p 328–331: “Power: The Council submitted that Div 2 of Pt 3 confined the Governor, on the recommendation of the Minister, to making environmental policy as distinct from making an environmental plan. State Environmental Planning Policy

[p 329] No 32, particularly cll 6, 7 and 10, was said to deal with matters not of policy but of planning. The extent of power is not described, in my opinion, by comparing dictionary definitions of ‘policy’ and ‘plan’. The parliament has used two words the meanings of which are different. But the noting of that difference takes us no distance in the task of determining whether cll 6, 7 and 10 could validly be included in an environmental planning policy made pursuant to the Act. The stated aim of State Environmental Planning Policy No 32 was to implement a policy of urban consolidation, its objective to ensure that urban land suitable for multi-unit housing and related development was made available for that development in a timely manner. These are matters which go to achieving the objects of the Act described in s 5: see s 24. Clause 6 and cl 7 enjoin councils to consider whether urban land is no longer needed or used for the purposes for which it is currently zoned and to implement the aims and objectives of the policy to the fullest extent practicable. This is not surprising. It would be surprising if the policy allowed councils to ignore it or failed to require councils to implement its aims and objectives. One of the express statutory purposes of an environmental planning instrument is to achieve any of the objects of the Act. Nor, where, in order to ensure that the aims and objectives of the policy are implemented, a regional environmental plan has been made in respect of a site, is it surprising to find that the Minister is to be the consent authority in respect of that site. That is consistent with achieving the postulated purpose of the regional environmental plan. The Council argued that the Act does not allow an environmental planning instrument to specify the Minister as having the function to determine a development application and hence to be the consent authority. It was argued that in regard to consent to development applications the Minister’s function or power was exclusively described in s 101. This argument runs counter to and is irreconcilable with the express provisions of the Act, in

particular ss 26(h), 30(1) and 32 and the definition of ‘consent authority’ in s 4(1). No persuasive reason was advanced against reading these sections as authorising the Minister to be specified in an environmental planning instrument as having the function to determine a development application and hence being the consent authority. Section 101 enables the Minister to exercise a quite distinct power to direct a consent authority to refer for determination by the Minister a particular development application or development applications of a particular class or description. Subsection (3) of that section acknowledges that a consent authority may be the Minister and makes provision for the case where the consent authority is not the Minister. In my opinion the making of State Environmental Planning Policy No 32 was within the power of the Governor, on the recommendation of the Minister, and the appeal on this ground fails. Propriety of purpose: In part the Council’s attack was founded on her Honour’s statement that she was persuaded that the Minister’s purpose was to gain planning control of the Balmain sites. ‘I think that is an inescapable inference from the [p 330] evidence as a whole. But I also think that he was motivated, too, by the purpose of implementing the Government’s policy of urban consolidation.’ The statement that the Minister’s purpose was to gain planning control of the Balmain sites, invites the question: ‘Why was this his purpose?’ If it were for personal gain it would be improper. But her Honour’s answer to that question, as I understand her judgment, would be that the Minister intended thereby to implement the Government’s policy of urban consolidation. In my opinion it is not an improper purpose to set out by the use of a State environmental planning policy and a regional environmental plan to gain planning control of particular land so as to implement

the Government’s policy of urban consolidation. Planning control in her Honour’s judgment must mean enjoining councils to implement the aims and objectives of the policy to the fullest extent practicable, taking steps to identify land for urban consolidation and vesting the Minister with the function of determining development applications. The Minister becomes, accordingly, the consent authority. The answer to the submission of any general impropriety in the Minister’s purpose is found in s 24. An environmental planning instrument may be made in accordance with Pt 3 for the purpose of achieving any of the objects of the Act. Encouragement of the proper management and development of natural and man-made resources, including cities and towns, for the purposes of promoting the social and economic welfare of the community and a better environment and promoting and co-ordinating the orderly and economic use and development of land, are stated objects of the Act. In my opinion, the purpose found by her Honour, properly understood, is a purpose within those referred to in s 24. The Council’s argument tended to concentrate on her Honour’s finding that the Minister’s purpose was to gain planning control of the Balmain sites. Looking at this alone it is not possible to say whether that purpose is a proper or improper purpose. However, her Honour’s further findings demonstrate the propriety of the Minister’s purpose. Mr Downes QC, who appeared for the Council, accepted that the Minister at all times believed that re-zoning in accordance with the Government’s policy of urban consolidation was desirable for proper use of the land. The Council’s underlying argument on the propriety of purpose can be summarised as follows: The sole purpose or predominant purpose in making State Environmental Planning Policy No 32 and Greater Metropolitan Regional Environmental Plan No 1 was to enable the Minister to re-zone the Balmain sites. Though wider purposes were asserted, the sole or predominant purpose was this very specific single purpose. While there had been for some time a Government policy of urban consolidation, in late 1991 the problem of re-

zoning the Balmain sites remained unsolved. Within the department it was thought that advantage could be taken of the ongoing urban consolidation policy to get rid of the problem in Balmain which had been festering for some period of years. The answer to this proposition was the finding made by her Honour concerning the Minister’s purpose, which I have quoted and explained. Integral to the Minister’s purpose was the implementation of the Government’s policy of urban consolidation. Indeed I think this purpose was the Minister’s sole purpose. [p 331] The Council’s argument, with the greatest respect, tended to confuse the means adopted with the purpose. The means adopted changed from the mechanism of local environmental plans prepared by the Council to a regional environmental plan prepared by the Minister, but the purpose remained constant. In their letter of 31 July 1991 to the Council the Commissioners of Inquiry said that the evidence indicated that residential use was the main and appropriate use compatible with the existing environment and satisfying public interest considerations directed to ‘urban consolidation’. To my mind the evidence was overwhelming that the Minister’s purpose in making State Environmental Planning Policy No 32 and Greater Metropolitan Regional Environmental Plan No 1 was to implement the Government’s policy of urban consolidation. This conclusion is consistent with her Honour’s finding. I do not think it is undermined by the failure of the Minister to give evidence. Ample evidence was to be found elsewhere.” Council also argued that before making a SEPP, the Minister was bound to consider the alternative statutory means available to him to gain planning consent of the Balmain sites. This argument was rejected as having no legal basis (at p 332). Council also argued that the matters covered by the SEPP were of local not State significance.

Sheller JA said at p 333: “Section 39(1) enables the Minister, on the submission to him by the Director of a draft State environmental planning policy, to recommend to the Governor the making of a State environmental planning policy in accordance with the draft with such alterations, if any, as the Minister thinks fit. Subsection (3) provides that the Minister may not make such a recommendation ‘except with respect to such matters as are, in his opinion, of significance for environmental planning for the State’. Whether matters are of such significance is to be determined by the opinion of the Minister. The subject matter of a State environmental planning policy shall be as determined by the Minister (s 38). In my opinion, the argument that the matters the subject of State Environmental Planning Policy No 32 could not validly be considered by the Minister to be of significance for environmental planning for the State is untenable. Section 51(2) provides that the Minister may not make a regional environmental plan except with respect to such matters as are, in his opinion, of significance for environmental planning for the region or part of the region to which that regional environmental plan applies. The Greater Metropolitan Regional Environmental Plan No 1 applies to part of the Greater Metropolitan Region, namely, the Balmain sites. Again I consider the argument that the Minister could not reasonably form the opinion that the plan was with respect to matters of significance for the environmental planning of that part of the region which consisted of the Balmain sites is untenable.” Conclusions The following conclusions can be derived from the Court of Appeal decision in Leichhardt v Minister: • While a policy and a plan have different dictionary meanings, the use of these different words does not have any effect on the extent of power which a plan or a policy may utilise. • A SEPP may lawfully specify that the Minister is the consent

authority for development. • It is a proper purpose to use a SEPP to gain planning control over particular land to implement a State planning purpose. It is important not to confuse the means adopted in a SEPP with the purpose of that SEPP. • There is no legal basis to suggest alternative statutory means available to achieve a purpose need to be considered before making a SEPP. • An argument that the Minister could not reasonably form the opinion that the SEPP and REP did not relate to matters of significance for the environmental planning for the State or region was untenable.

¶26-050 Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd In Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 (Darling Casino), Pearlman CJ in the Land and Environment Court of NSW (NSWLEC) considered a challenge to the validity of SEPP No 41 — Casino Entertainment Complex (SEPP No 41). This challenge dealt with the steps taken in the preparation of SEPP No 41 and the consultation process between Ministers under s 37(2) of the EPA Act (as it then was prior to the 2008 Amendments which removed these provisions). However, it is potentially applicable to the consequences of any breach of the current s 38 inserted by the 2008 Amendments giving the Minister a discretion to publicise the intended effects of a proposed SEPP and to seek and consider public submissions thereon. Pearlman CJ held at p 203–204: “The wording of s 37(2) makes it clear, in my opinion, that the Minister has a number of discretions. He ‘may’ cause a State environmental planning policy to be prepared by the Director, and he may determine the matter which is of significance for

environmental planning for the State. More importantly, for present purposes, the Minister’s discretion extends to determining those ministers with whom he wishes to consult. The only relevant obligation which s 37(2) casts upon the Minister is to make that determination, that is, to determine which ministers, and he may determine that there be no minister with whom he wishes to consult. There are no words of obligation in s 37(2) in relation to the consultation itself; there is no language such as ‘shall consult’ or ‘may consult’, or, as in Leichhardt, ‘shall ensure that consultations are held’. There are other important matters to note about s 37(2). It is, as I have already indicated, a preliminary step in a process. It relates to the ‘decision or direction’ to prepare a draft State environmental planning policy, and the Minister may or may not decide to request the Director to prepare a draft State environmental planning policy. Even if the Minister exercises his discretion to make such a request, the terms of the draft are not finalised by s 37. There remains the necessity for the Minister to settle the format, structure and subject matter of the State environmental planning policy under s 38, and even then, the draft may be amended under s 39(1)(b) or, [p 204] implicitly, as a result of the consideration of submissions made in response to any public exhibition of the draft, under s 39(2). In summary, there are four critical factors to take into account in considering the intention of the legislature. There is, first, the limited extent of the Minister’s obligation under s 37(2), secondly, the fact that he may determine to consult with no minister at all, thirdly, the absence of language of obligation, and fourthly, the fact that consultation if any will take place at a preliminary or conceptual stage of the process with no certainty that a State environmental planning policy will ultimately be promulgated or be promulgated in any particular form. I conclude, in the light of these factors, that consultation with ministers is not an essential or imperative part of the process of making a State environmental

planning policy; it is not a precondition of the validity of the State environmental planning policy that consultation under s 37(2) does in fact take place.” Thus, Pearlman CJ held that because the consultation provisions contained in s 37(2) prior to the 2008 Amendments were discretionary only, it was not an essential part of the process and hence, not a precondition to validity. As the consultation process in s 38 after the 2008 Amendments has similar features, any breach of those requirements may likewise not result in invalidity of a SEPP.

¶26-060 Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd and others In Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd and others (1996) 91 LGERA 31 (Rosemount v The Minister), the NSW Court of Appeal considered a challenge to the validity of SEPP No 45 — Permissibility of Mining. This case comprised part of the long running litigation by Rosemount seeking to stop the development of the Bengalla open cut coal mine west of Muswellbrook in the Hunter Valley. Rosemount owned vineyards, some of which were located less than one kilometre from the proposed mine site. The Minister had called in the Bengalla development application (DA) for this determination under s 101 of the EPA Act as it then existed. As was then provided for in s 101, the DA was the subject of a Commission of Inquiry, which recommended in its report to the Minister that development consent should be granted. In issue before the inquiry was the permissibility of the part of the proposal under the applicable LEP which contained a condition precedent to establish permissibility that it will not visually intrude into its surroundings except by way of suitable screening. The Commission found the proposal met the condition precedent. Rosemont commenced proceedings to declare the Commission’s report and findings were not a report and findings under the EPA Act as the conclusion on permissibility was manifestly unreasonable. In Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1, Waddell AJ in the NSWLEC held that the Commission’s findings were manifestly unreasonable and as a result, mining on part

of the land was not permissible. The Minister then approved but did not implement an exercise of his powers under the then s 100A of the EPA Act, which provided that the Minister could call for determination an application for prohibited development. The Minister then recommended and the Governor made SEPP No 45 on August 1995 which generally removed any requirement for satisfaction of a condition precedent relating to mining in all EPIs. On 7 August 1995, the Minister then determined the Bengalla DA by granting development consent subject to conditions. Rosemount commenced proceedings to challenge the validity of SEPP No 45 and Stein J in the NSWLEC held that SEPP No 45 was invalid (Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1). This decision was subject to appeal in the Court of Appeal. While judgment was reserved in the NSW Court of Appeal, the NSW Parliament enacted the State Environmental Planning (Permissible Mining) Act 1996 (NSW) which expressly validated SEPP No 45 and the development consent for the Bengalla proposal. This meant that the appeal must be upheld, but the NSW Court of Appeal agreed to deliver its reasons for judgment as if the Act had not been passed for the purposes of a costs hearing. At first instance Stein J held that SEPP No 45 rendered nugatory the environmental planning interest in LEPs which had been through the scrutiny and analysis of Pt 3 of the EPA Act. He held this was contrary to good environmental planning as it involved setting aside the first or planning stage contained in the LEP. He held the SEPP rendered otiose this first stage in the planning process and was manifestly unreasonable. Cole JA rejected this finding at p 74–76: “It is thus clear, in my view, that the objects clause, the provisions of Pt 3 relating to planning instruments at various levels, and the provisions of Pt 4 dealing with the control of development, are in harmony. The particular aspects addressed by the objects clause will inevitably conflict and require resolution within a planning instrument when the subject matter of the object is considered at the planning instrument stage. The conflict of objects may be

resolved differently depending upon the level at which the planning instrument applies. The subject matter of the objects, in so far as it may require consideration in a different context under Pt 4, and in particular pursuant to s.90, requires a new and different consideration in the weighing of competing matters in determining whether a particular consent is to be granted, refused, or granted upon conditions. [p 75] It is apparent from what I have said that the structure of the Act contemplates change to environmental planning instruments by subsequent instruments. Section 36 makes that obvious. It must follow in my opinion that a later instrument, in this instance a State environmental planning policy, which may have the effect of changing the Muswellbrook local environmental plan or its effect, is not to be regarded as being destructive of some earlier and integral planning stage. The fact that a State environmental planning policy might make permissible that which a local environmental plan made permissible only upon satisfaction of certain conditions is not to be regarded as destructive of the planning process, as Stein J thought when he said that it ‘rendered nugatory the environmental planning inherent in local environmental plans which are subjected to analysis and scrutiny by the public and public authorities by the plan making processes in Pt 3 of the Act.’ It follows that it is wrong, in my opinion, to say, as Stein J did that ‘this must be contrary to good environmental planning. It involves setting aside a fundamental stage in the system of planning established by and integral to the Act’. Nor is it correct to say that: ‘the effect of State Environmental Planning Policy No 45 is to render otiose this first planning stage in relation to mining by overriding prohibitions in local environmental plans’. It may have had that effect, but that is an effect contemplated and permitted by the statutory provisions, subject only to whether the exercise of the discretion is to be set aside as being unreasonable. Unreasonableness, however, is not established

from the circumstance that the exercise of a statutory power changes a previously existing provision in an earlier planning instrument, or its effect. Nor is it established simply by showing that there was an absence of consultation, advertising of the draft plan and consideration of submissions if that absence is permitted by statute, merely because it has the effect of over-ruling a prior environmental planning instrument which was promulgated after the required consultation, advertising and consideration of submissions for an environmental planning instrument of that character. Once it is recognised that an existing environmental planning instrument may be amended, altered, varied or replaced by a subsequent environmental planning instrument, as s 74 and s 36(b) explicitly provide, much of the basis for Rosemount’s contention upheld by Stein J disappears. That is particularly so when it is appreciated that a different regime is specified for the generation, consultation, advertising and consideration of submissions in relation to environmental planning instruments of different types. It seems to me not possible, against that background, to uphold the view that a planning instrument prepared in accordance with its designated statutory regime suffers the blight of unreasonableness because it alters a preexisting environmental protection [sic.] instrument created under a different statutory regime in the same Act, where such alteration is, in specific terms, permitted by that Act. Nor is it possible to expand the statutory requirements of a particular regime which specifies the manner in which a particular planning instrument may be made by reference to the objects of the Act. The content of a scheme may be required to conform with the objects of the Act, and the procedural steps, in so far as they have an object or policy content, may be controlled by the objects of the Act in the sense that if the steps are taken for a purpose foreign to the objects of the Act, the procedural step in truth may not be one within the statutory power. However, subject to those matters the issue descends, in my view, to the narrow issue of Wednesbury unreasonableness. It is not

[p 76] unreasonable to do that which the statute permits in performance of a statutory power or obligation and for purposes contemplated or permitted by the statute.” Stein J at first instance also held that SEPP No 45 itself was manifestly unreasonable. Cole JA disagreed and held at p 80: “The proper approach of the court in considering subordinate legislation such as State Environmental Planning Policy No 45 was stated by Kirby P in New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 320. The President said: ‘The function of the court in considering an attack on the validity of subordinate legislation is not to substitute its opinion about the policy of the delegated legislation nor to judge whether it considers that policy inexpedient or misguided. So to act would take the judicial branch of government beyond its proper function and into the province of the Executive Branch of government which, by the grant of power, is authorised by the Legislature to make the subordinate rule in question. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 per Mason CJ; Attorney-General (NSW) v Quin at 37–38 per Brennan J.’ For reasons I have previously given regarding the structure of the Act, the statute clearly contemplates amendment of existing environmental planning instruments by subsequent instruments. The later instrument cannot be said to be unreasonable merely because it amends a prior instrument. Nor does any such amendment interfere with the planning process in Pt 3 of the Act, or the consent process in Pt 4 of the Act. Indeed it is part of the planning process. Subordinate legislation is said to be unreasonable if it can properly be said not to be within the purview of the power conferred by the legislature to make subordinate legislation (Minister for Primary Industries & Energy v Austral Fisheries Pty

Ltd (1993) 40 FCR 381 at 381–382 per Lockhart J). If, however, it can be said that there is ‘a real connection’ between the subordinate legislation and the purpose for which the regulationmaking power was conferred, the legislation will be held within power and thus not ‘unreasonable’ (Clements v Bull (1953) 88 CLR 572 at 577; see cases cited by Lockhart J in Austral at 383– 384). In my opinion it is clear that State Environmental Planning Policy No 45 has the required ‘real connection’ with the power conferred by ss 37 to 39 of the Act. The structure of the Act contemplates the Governor on the recommendation of the Minister making a State environmental planning policy which addresses matters which are in the opinion of the Director and the Minister of significance for environmental planning for the State, and which may alter or negate planning provisions in a prior environmental instrument. In my opinion the very terms of the State environmental planning policy make clear it is within power and thus not unreasonable.” Rosemount also argued that SEPP No 45 was not a policy, but rather a plan. Cole JA held at p 90: “It is, in my opinion, sufficient to note that a State environmental planning policy means a document prepared with respect to such matters as are in the opinion of the Director and ultimately the Minister of significance for environmental planning for the State. I do not think it helpful to seek further to analyse the meaning of the word ‘policy’. It is apparent that ‘policy’ can be used in different senses and thus have a different meaning depending upon the context in which it is used. (See for instance Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 where Brennan J discussed a power to make a ‘policy in order to guide’ the Minister in the exercise of statutory discretion; Leppington Pastoral Company Pty Ltd v Department of Administrative Services (1990) 23 FCR 148 at 156; where the width or narrowness of the degree of specificity inherent in the expression and controlled by construction of the legislation was noted; Professional Promotions & Services Ltd v Attorney-

General [1990] 1 NZLR 501 at 509–510 where policy in relation to a government statement was held to have been ‘the course of action adopted or to be adopted by a government on a stated issue’.) Construed in its legislative context, the content of a State environmental planning policy is that which relates to matters which are in the opinion of the Minister of significance for environmental planning for the State, and the content of the policy may have the effect contemplated by ss 36 and 74 of amending prior and possibly more detailed environmental planning instruments. A policy of a government, or of a Minister may thus be to clarify planning controls, in this instance statewide, in relation to mining developments by making such developments permissible where they are otherwise permissible only on satisfaction of conditions.” On the issue of the substantive validity of SEPP No 45, Handley JA agreed with the rest of the Court’s analysis of s 37 and s 39 and the emphasis by Cole JA on the power to make a SEPP which overrides other EPIs, including LEPs, and the finding that this is not a subversion of the planning process on the issue of unreasonableness. Handley JA said at p 34: “There is no basis on which this Court could conclude that only one planning regime for particular land or for a particular purpose could be consistent with the objects of the Act. Planning involves the making of choices between alternatives suggested by the conflicting objects in s 5 (a). These include the proper development and conservation of natural resources, the promotion of the economic use and development of land, and the protection of the environment. The working out of these conflicting objects in a given policy, plan or decision will inevitably present to a legislative planner or decision-maker a range of choices within the scope of any power. Invalidity in legislative planning or in particular decision-making for lack of rationality can only realistically arise at the extremes of the range of available choices. A State environmental planning policy which prohibited all new mining, or one which made all new mining permissible without consent might attract invalidity, but a

State environmental planning policy which alters the existing planning balance between mining development and conservation of the environment cannot be irrational to the extent required to bring about invalidity.” Handley JA further held at p 36: “I agree with Cole JA that the legal test for the validity of subordinate legislation such as a State environmental planning policy on the ground that no reasonable mind could justify it is whether there is ‘a real connection’ between the delegated legislation and the purpose for which the power of delegated legislation was conferred by Parliament: see Clements v Bull (1953) 88 CLR 572 at 577; Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381. I find it impossible to hold that State Environmental Planning Policy No 45 could not rationally be thought to relate to matters of significance for environmental planning for the State. I agree with the conclusions of the other judges that State Environmental Planning Policy No 45 was not invalid on the ground that no reasonable Minister acting rationally could have recommended its making to the Governor.” Handley JA also agreed with the conclusions of the other members of the court on the other challenges to validity (at p 36). Sheller JA held in relation to the substance of SEPP No 45 at p 44– 45: “Local environmental plans and the processes through which they come to be made pursuant to Div 4 of Pt 3 are one type of environmental planning instrument which the Act contemplates. Another is the State environmental planning policy which is made by a different process and may or may not prevail in the case of inconsistency: s 36. That means that if it does prevail, which it may, the State environmental planning policy may quite legitimately and within the contemplation of the legislature, render nugatory environmental planning the result of the processes required for the making of an local environmental plan. Thus it

seems to me with the greatest respect not possible to say that the impact or effect of the State environmental planning policy is such that it must be outside what the legislature by implication intended and [p 45] therefore unreasonable, to adapt what Brennan J said in Attorney-General v Quin. Stein J regarded the State environmental planning policy as contrary to good environmental planning. But the fact that the Court regards it as having an undesirable effect is not to the point. In my opinion quite plainly an examination of the objects of the Act, to achieve which the Minister was empowered to make a State environmental planning policy, demonstrates that State Environmental Planning Policy No 45 had a real, that is to say a direct and substantial, connection with those objects. The terms of the memorandum accompanying the draft State environmental planning policy which the Director submitted to the Minister on 28 July 1995 confirmed this. The significant portions of the memorandum are set out in Cole JA’s judgment and I need not repeat them. Suffice it to say that it referred to the importance of the mining industry in New South Wales and the unacceptable level of uncertainty introduced by the provisions of some environmental planning instruments into the decision-making process for important mining projects. There were potential adverse implications not only for the developer, but for neighbouring property owners and the local community, who might be affected by the proposed mine. The so-called two stage process to determine whether or not development consent could be granted led to delays and uncertainties in the decision-making process for important mining projects. The Muswellbrook local environmental plan was an example of these types of provision. The State environmental planning policy was designed to overcome this problem. In my opinion this was a legitimate and reasonable design for an [sic.] State environmental planning policy serving the objects of the Act.”

Stein J at first instance held that SEPP No 45 was invalid on the grounds of lack of proportionality, namely that SEPP No 45 was a disproportionate response to the problem it sought to address. Cole JA held at p 81–84: “It is unresolved in Australia whether the concept of proportionality in the consideration of the validity of subordinate legislation is to be regarded as an independent ground of invalidity, or a sub-ground of irrationality. In the United Kingdom, although not finally resolved, members of the House of Lords appear to be disinclined to adopt proportionality as an independent ground for judicial review: see R v Secretary of State for Home Department; Ex parte Brind [1991] 1 AC 696 at 749 per Lord Bridge, 750 per Lord Roskill, 762–763 per Lord Ackner and particularly 766–767 per Lord Lowry. The concept was adopted by Deane J in the Tasmanian Dam case (1983) 158 CLR 1 (at 260) where his Honour said the requirement for validity of legislation based on a specific power involved ‘a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it … the law must be seen, with ‘reasonable clearness’, upon consideration of its operation, to be ‘really, and not fancifully, colourably, or ostensibly, referable’ to and explicable by the purpose or object which is said to provide its character.’ That test was accepted by the parties in South Australia v Tanner (1989) 166 CLR 161 at 165; 67 LGRA 84 at per Wilson, Dawson, Toohey and [p 82] Gaudron JJ without disapproval, and with approval by Brennan J (at 178; 97). In discussing the validity of regulations made in exercise of a power, Brennan J made clear that consideration of validity involved consideration of the relationship between the power and its statutory object. His Honour said (at 178–179; 98): ‘First, as the validity of the regulation depends on whether it

answers the statutory description, the problem is one of characterisation. Next, the character of a regulation is ascertained by reference to its operation and legal effect in the circumstances to which it applies. The character of the regulation is ascertained by the court’s own assessment of the directness and substantiality of the connection between the likely operation of the regulation and the statutory object to be served. If the directness and substantiality of the connection between the likely operation of the regulation and the statutory object is so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object, the regulation is invalid. Moreover, it must be steadily borne in mind that the fulfilling of the statutory object is a limitation on the power to make the regulation. A regulation which is so widely drawn as needlessly to embrace a field of operation which is quite unconnected with the statutory object cannot reasonably be adopted in exercise of a power so limited. These are broad tests, involving matters of degree. (at 178–179; 98)’ Dawson J accepted the concept of proportionality as being applicable where a purposive power was involved, but doubted its applicability as a separate head of invalidity in other circumstances: see Cunliffe v Commonwealth (1994) 182 CLR 272 at 356–357; see also New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 321 per Kirby P; Qiu v Minister for Immigration & Ethnic Affairs (1994) 55 FCR 439 at 446 per Lockhart J. The power to make a State environmental planning policy as contained in ss 37 to 39 of the Act is a purposive power. It confers the power to make such a policy with respect to such matters as are, in the opinion of the Director and ultimately the Minister, of significance for environmental planning for the State. Stein J held (at 26), correctly in my view, that there was no reason ‘why ‘certainty and transparency’ in planning controls which determine the permissibility of mining (or any other use for that matter) cannot be seen as of significance for environmental planning for

the State’. … [p 84] I see no reason why a State environmental planning policy cannot, to ensure clarity and transparency in relation to mining permissible in zones subject to compliance with conditions, whether they be subjective or objective, simply introduce a provision rendering mining permissible in those zones and rendering such conditions material to permissibility, although they may remain material at the consent stage. Such a policy results in it being unnecessary to consider the nature of any such conditions or to determine whether a particular environmental instrument expressed the condition with clarity, whether it be subjective or objective. For these reasons, in my opinion, the challenge to State Environmental Planning Policy No 45 upon the basis of lack of proportionality fails.” In relation to the challenge on proportionality, Handley JA said at p 38: “In my judgment the requirement of proportionality is not relevant to the Minister’s power under s 39(3) to recommend the making of a State environmental planning policy to the Governor ‘with respect to such matters as are, in his opinion, of significance for environmental planning for the State’. Planning for the State is not ‘the statutory object’ which the policy must serve, but the statutory subject with which it must deal. The power in s 39 is not purposive and its exercise is not required to be conducive to a statutory object. In my opinion therefore a State environmental planning policy cannot be declared invalid for lack of proportionality. State Environmental Planning Policy No 45 operates upon environmental planning in the State, and the question of its proportionality goes to the merits or otherwise of the policy, and that is not something which can concern a Court.” In relation to proportionality, Sheller JA held at p 45–46: “However Stein J was also of opinion that the response of the

State environmental planning policy to the problem was a disproportionate one because it applied to all planning instruments containing provisions which make mining permissible upon satisfaction of certain criteria, and not just to those lacking clarity and transparency. In Minister for Resources v Dover Fisheries Pty Ltd (at 576), Gummow J said that in Australia the proportionality doctrine has taken root and extended its reach into the heartland of Federal constitutional law. If subordinate legislation depends upon a purposive power a court may conclude that the means chosen to achieve the ends intended reveal a disproportion which is too onerous or oppressive if a less harmful or more suitable means is apparent. Such at least will be the case where the legislation touches upon the entrenched rights of citizens: see, for example, R v Oakes (1986) 26 DLR (4th) 200 at 227. But I think it correct to say that a much higher threshold must be passed before the Court will intervene to strike down a decision about policy which the legislature has left to its subordinate, in this case the Minister, to make, particularly when the subordinate must choose and balance between competing objects. English law has embraced from European Community law the concept of a margin of appreciation or discretion in the decision-maker which in such cases would normally be far wider than in the case of an administrative decision; see generally De Smith, Woolf and Jowell, Judicial Review of Administrative Action, at pars 13-007, 13-055 and 13-079 and following. Bearing in mind that the mischief perceived was one affecting mining generally in New South Wales, I see nothing disproportionate in applying the provisions State wide and including all planning instruments [p 46] containing provisions which make mining permissible only upon satisfaction of certain criteria. In my opinion and with respect Stein J erred in holding that the substance of State Environmental Planning Policy No 45 was manifestly unreasonable.” Stein J at first instance held that the decision not to publicise the draft SEPP was contrary to the express object of the Act in s 5(c) and that the scope, purpose and subject matter of the draft SEPP were such as

to require consultation and publication. Cole JA held that such a finding negates the discretion conferred by the Act. As Cole JA said at p 78–80: “With due respect, this approach negates the fact of a discretion conferred by s 37 and s 39. In 1993, the words ‘if any’ were inserted in s 39(2) so that the section now reads: ‘The Minister shall take such steps, if any, as he considers appropriate or necessary to publicise a draft State Environmental Planning Policy and to seek and consider submissions from the public before he makes such a recommendation.’ [Emphasis added] The insertion of the words ‘if any’ make clear there reposes in the Minister a discretion. It is thus not correct to say that the section, or the Act, ‘requires publication’ (Mitchell v The Queen (1996) 70 ALJR 313 at 319–320). Stein J reversed the statutory discretion to impose an obligation and in so doing fell into error. The exercise of the statutory power to publicise must be considered, but there remains a discretion whether it be exercised. Further, whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language (see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4th ed (1996) section 4.34), or command a particular outcome of exercise of discretionary power. … Prior to the making of a State environmental planning policy in accordance with s 39(4) the Minister is obliged to address the question of publication of the draft policy and to determine whether he regards such publication as necessary. It may be that if he had not done so any resulting State environmental planning policy would have been invalid for failure to comply with a condition precedent to its making: (see Leichhardt Municipal Council v Minister for Planning [p 80] (1982) 78 LGERA 306 at 338–339 per Sheller JA) but here the

question of exercise of discretion was addressed and, in my opinion, a determination reached which was not infected by unreasonableness.” Sheller JA agreed at p 46–48. Stein J at first instance held that the Director’s decision under the then s 37(1) to only consult the chief executives of the Department of Mineral Resources and the Department of State Development was manifestly unreasonable. Cole JA held the Director had an unrestricted discretion as to whom to consult and the objects of the Act are not to be read into that direction to expand or restrict the discretion. He held that it would not be said that the Director’s decision was manifestly unreasonable in the Wednesbury sense. Sheller JA agreed at p 46. Rosemount argued that it had a right to procedural fairness due to assurances given, due to the course of dealings with the Minister, and because of the specific consequences to it of being denied a hearing, and from the existence of statements supporting a reasonable legitimate expectation. Cole JA held Rosemount lacked a special interest in SEPP No 45 sufficient to give rise to a legitimate expectation to be heard as it was no different from any person with an interest in mining shares. Cole JA held that Rosemount had a reasonable opportunity to present its case in various forums. He held that nothing was found from the course of dealings which would give rise to a legitimate expectation of a hearing. Sheller JA agreed at p 48. Cole JA also held that if, contrary to his finding, SEPP No 45 was an invalid exercise of power and thus inoperative to provide the Minister with a power to grant the consent to Bengalla, the then s 100A (to call in and approve prohibited development) was a valid and available source of power upon which the validity of the consent could rest (see p 85–89). Sheller JA agreed with Cole JA at p 48. Handley JA disagreed with Cole JA in relation to the alternative head

of power argument. He held at p 40–41: “In my judgment therefore the power under s.100A(2) to consent to the proposed development although it was prohibited was legally and factually available for exercise by the Minister at the relevant time. Both powers are exercisable subject to and in accordance with s.101 but they are nevertheless distinct powers. The practical result of the exercise of the two powers will be the same in that a consent will be granted, and the development can lawfully proceed. However the legal effect of the exercise of the two powers will be different. In one case the development is permissible with consent, and the Minister’s decision takes effect within the ordinary law. In the other case the development is prohibited and the Minister’s decision operates to override or dispense with the ordinary law. The existence and exercise of a power in the Crown to suspend or dispense with the ordinary law was a controversial question during the reign of the later Stuarts. Such powers placed the sovereign above the law, but the Bill of Rights 1688 (UK) denied the Crown such a power without the consent of Parliament. The power to consent to prohibited development is therefore an extraordinary power, and its exercise would have a legal operation on what would otherwise be an absolute prohibition. On the other hand the power to consent to permissible development is an ordinary power which operates to relax a conditional prohibition which contemplated and authorises that course. [p 41] … In the present case the legal distinction appears to reflect practical and political realities. The Minister preferred to recommend the making of State Environmental Planning Policy No. 45, with its associated risks of litigation, rather than grant consent to prohibited development with its associated risks of litigation. This suggests some reluctance on the part of the Minister to exercise the extraordinary power, and there was no

such reluctance in the case of the ordinary power. Had I concluded that State Environmental Planning Policy No. 45 was invalid, I would not have been prepared to uphold the Minister’s decision to grant a consent as an exercise of the power under s.100A. Judges should be cautious before upholding a decision as an exercise of another head of power that a politician has hesitated to use.” Conclusions The following conclusions may be derived from Rosemount v The Minister: • A SEPP may lawfully change an LEP by making a development permissible without any condition precedent, where the LEP only made it permissible subject to meeting a condition precedent. Such a provision is not destructive of the planning process (Cole JA, Handley JA, Sheller JA). • It is not manifestly unreasonable to use a SEPP to change planning provisions in another EPI (Cole JA, Handley JA, Sheller JA). • It is not manifestly unreasonable to do that which the statute permits in performance of a statutory power or obligation and for purposes permitted by the statute (Cole JA, Handley JA). • An EPI is within power and is not manifestly unreasonable if there is a real connection between the EPI and a purpose for which the legislation provides that EPIs can be made for (Cole JA, Handley JA, Sheller JA). • A SEPP is a document prepared with respect to such matters as are in the opinion of the Minister of significance to environmental planning for the State. No useful purpose is served by further analysing the meaning of the word “policy” (Cole JA). • As the making of a SEPP is a purposive power, there needs to be a reasonable proportionality between the purpose and the means

taken to achieve it. There must be a direct and substantial connection between the likely operation of an EPI and to a statutory objective sought to be achieved. Certainty and transparency in planning controls are a matter of significance for environmental planning for the State (Cole JA). In contrast, Handley JA held that the making of a SEPP is not a purposive power and hence proportionality is irrelevant and a SEPP cannot be held to be invalid on the grounds of lack of proportionality. Sheller JA appeared to accept that lack of proportionality could be a ground for invalidity of a SEPP as he found there was nothing disproportionate in the making of SEPP No 45. • As the power to publicise a draft SEPP is discretionary, there is no basis to negate that discretion. However, the consideration of whether to exercise the discretion for publicising is a condition precedent and failure to comply with the condition precedent may render any resulting SEPP invalid (Cole JA and Sheller JA). • Where a SEPP purports to make development permissible which is otherwise prohibited by an LEP and the Minister issues a consent, that consent may remain valid even if the SEPP is found to be invalid if the Minister has a power to approve by alternative means prohibited development (Cole JA and Sheller JA, contra Handley JA).

¶26-070 Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 (Save the Showground), the NSW Court of Appeal considered a challenge to the validity of SEPP No 47 — Moore Park Showground. This SEPP rezoned the Sydney Showground at Moore Park to permit a film and television studio and made the Minister the consent authority for DAs. On appeal to the NSW Court of Appeal, the sole ground argued was a claim that SEPP No 47 was invalid because of a denial of procedural fairness in its making. Following a decision to move the site for the Royal Easter

Show to Homebush, the Fahey Government in New South Wales announced that the future use of the showground site would be considered by a REP and a s 22 Committee was established for consultative purposes. In 1995, the Carr Government was elected and decided to change this process and prepare a SEPP instead. The REP Committee was never reconvened or consulted. It was submitted that the REP Committee had a legitimate expectation to be consulted and that a failure to consult the committee involved a breach of procedural fairness and as a consequence SEPP No 47 was invalid. Gleeson CJ (with whom Powell JA agreed) held at p 40–41: “Considered against the statutory background, what occurred in the present case was essentially as follows. A decision was taken to control development in an area including the Showground and the adjacent areas of Moore Park and Centennial Park by way of REP. For that purpose the REP Committee was constituted. Subsequently, the REP proposal was abandoned, and a decision was taken to control development in a smaller area by way of SEPP. The change of government which occurred in March 1995 explains the change of policy, but it is not legally relevant. No different legal issues would have arisen if the Coalition government had remained in power but, by reason of some change in circumstances, or simply by reason of a change of mind, the policy had altered. This appeal has been argued upon the assumption that it was open to the Minister, in 1995, to form the opinion that the matter of the future use of the Showground, and the proposed development by Fox Studios, was of State, and not merely regional, environmental significance. There is nothing in the Act which compelled the Executive to adhere to the approach towards controlling the development of the Showground and adjacent areas reflected in the REP proposal. On the contrary, the Act imposed on the [p 41]

Executive a duty to exercise a free and unhindered discretion in the exercise of the powers of environmental planning conferred by the legislation. Once it is accepted, as it has been for the purpose of this appeal, that the new policy adopted in 1995 was within the ambit of the discretion of the Executive, a discretion which was to be exercised in the public interest, then it follows that the Executive could not, by promise or representation, fetter itself in the exercise of that discretion (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17). It is not claimed that the REP Committee had a reasonable or legitimate expectation that the Executive would not decide that the issues concerning land use of the Showground were of State significance and that it would be more appropriate to deal with them by way of SEPP. Such an expectation would have been unreasonable. The Executive could not have fettered its discretion in that way, and the REP Committee could not reasonably have expected it to do so. Nor could the REP Committee reasonably have expected to be consulted about such a change of policy. The REP procedure was what brought the Committee into existence. It was set up as part of that procedure. It had no function to perform independently of, and outside, that procedure. The decision to abandon the procedure was admittedly within the power of the Executive, and the Committee had no reasonable expectation either to be consulted about that decision or to be consulted about the land use of the Showground notwithstanding such abandonment. The Committee was set up for a specific purpose, which was lawfully abandoned. The appellant’s argument also appears to assume that, if there were aspects of the abandonment of the proposal that the Minister should make a REP which disappointed legitimate expectations, then that means that there was a relevant lack of procedural fairness in relation to the Governor’s decision to make a SEPP. That assumption has its own problems, but it is unnecessary to explore them. In my view the legitimate expectations for which the appellant contends have not been established.”

Beazley JA provided a detailed discussion on legitimate expectation at p 46–49. She then found: • A new government is not bound by representations made by its predecessor (at p 49). • The legitimate expectation for consultation held by the Committee (and found to apply by Pearlman CJ at first instance) was confined to the REP process (contrary to a finding by Pearlman CJ) and did not extend beyond that process (at p 49–50). • A right of procedural fairness does not arise in relation to a matter of broad policy or political decisions of government as opposed to the application of that policy to an individual (at p 51–53). • The power to initiate or abandon the making of a SEPP is a decision for the Minister and they are matters of policy which government is free to make, unfettered by any previous representation or promise. In this case there was no such promise (at p 53). • The decision on whether to publicise a draft SEPP is one left for the consideration of the Minister. Nothing in the statute imports a requirement for procedural fairness in relation to the decision whether to publicise a draft SEPP (at p 54).

¶26-080 Principles in relation to State Environmental Planning Policies The key principles derived from the discussion on SEPPs are as follows: Principle 1: Despite a SEPP being described as a “policy” rather than a “plan”, the use of these different words does not have any bearing or effect on the extent of power it may use (Leichhardt v Minister). A SEPP is an EPI prepared with respect to such matters as are, in the opinion of the Minister of State, of regional environmental planning significance. There is no useful purpose served by further analysing

the meaning of the word “policy” (Cole JA in Rosemount v The Minister). Principle 2: A SEPP may lawfully specify that the Minister is the consent authority for development (Leichhardt v Minister). A SEPP may lawfully change an LEP by making permissible something which is not (Rosemount v The Minister). It is not manifestly unreasonable to make a SEPP in performance of a power and for a purpose permitted by the EPA Act (Rosemount v The Minister). It is not relevant to the validity of a SEPP whether available alternative statutory means to achieve the outcome sought are considered before making a SEPP (Leichhardt v Minister). Principle 3: It is a proper planning purpose to use a SEPP to gain planning control over particular land to implement a State planning purpose. It is important not to confuse the means adopted by a SEPP with the purpose of that SEPP (Leichhardt v Minister). Principle 4: A SEPP is lawful and not manifestly unreasonable if there is a real connection between the SEPP and a purpose for which an EPI can be made under the EPA Act (Rosemount v The Minister). It is unclear, however, whether reasonable proportionality is required between the purpose of a SEPP and the means taken in a SEPP to achieve it (Rosemount v The Minister). Principle 5: As the power to publicise a draft SEPP is discretionary, there is no basis to negate that discretion (Rosemount v The Minister, Save the Showground). As the consultation requirements for a SEPP are discretionary only, any breach of those requirements will not result in invalidity of a SEPP (Darling Casino). The consideration of whether to exercise the discretion for consultation is a condition precedent to the making of a SEPP, and failure to comply with that condition precedent may render any resulting SEPP invalid (Rosemount v The Minister).

NATURE OF STATE ENVIRONMENTAL

PLANNING POLICIES MADE ¶27-010 List of State Environmental Planning Policies A large number of State Environmental Planning Policies (SEPPs) have been made since the commencement of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in 1980. Originally SEPPs were numbered sequentially, but this no longer occurs. A number of SEPPs have been repealed. Following is the list of different SEPPs with their respective policy numbers: • 1 Development Standards (SEPP 1) • 4 Development Without Consent and Miscellaneous Complying Development (SEPP 4) • 6 Number of Storeys in a Building (SEPP 6) • 14 Coastal Wetlands (SEPP 14) • 15 Rural Landsharing Communities (SEPP 15) • 19 Bushland in Urban Areas (SEPP 19) • 21 Caravan Parks (SEPP 21) • 22 Shops and Commercial Premises (SEPP 22) • 26 Littoral Rainforests (SEPP 26) • 29 Western Sydney Recreation Area (SEPP 29) • 30 Intensive Agriculture (SEPP 30) • 32 Urban Consolidation (Redevelopment of Urban Land) (SEPP 32)

• 33 Hazardous and Offensive Development (SEPP 33) • 36 Manufactured Home Estates (SEPP 36) • 41 Casino Entertainment Complex (SEPP 41) • 44 Koala Habitat Protection (SEPP 44) • 47 Moore Park Showground (SEPP 47) • 50 Canal Estate Development (SEPP 50) • 52 Farm Dams and Other Works in Land and Water Management Plan Areas (SEPP 52) • 55 Remediation of Land (SEPP 55) • 59 Central Western Sydney Economic and Employment Area (SEPP 59) • 60 Exempt and Complying Development (SEPP 60) • 62 Sustainable Aquaculture (SEPP 62) • 64 Advertising and Signage (SEPP 64) • 65 Design Quality of Residential Flat Development (SEPP 65) • 70 Affordable Housing (Revised Schemes) (SEPP 70) • 71 Coastal Protection (SEPP 71) • Housing for Seniors or People with a Disability 2004 • Building Sustainability Index BASIX 2004 • Major Development 2005 • Sydney Region Growth Centres 2006

• Mining, Petroleum Production and Extractive Industries 2007 • Temporary Structures 2007 • Infrastructure 2007 • Rural Lands 2008 • Exempt and Complying Development Codes 2008 • Affordable Rental Housing 2009 • Kosciuszko National Park — Alpine Resorts 2007 • Western Sydney Employment Area 2009 • Western Sydney Parklands 2009 • Urban Renewal 2010 • Sydney Drinking Water Catchment 2011, and • State and Regional Development 2011. In addition, some former Regional Environmental Plans (REP) are deemed to be SEPPs (see Chapter ¶28 which discusses REPs).

¶27-020 Of general relevance or frequently requesting consideration SEPPs of general relevance and frequently requesting consideration are as follows: • SEPP 1 — Development Standards: This SEPP permits flexibility in development standards and is considered further in Chapter ¶30. • SEPP 4 — Development without Consent: This SEPP has been significantly amended and its scope reduced. The majority of

exemptions in cl 6 to 10 do not apply to most Local Government Areas in New South Wales (Sch 2 of the EPA Act). • SEPP 6 — Number of Storeys in a Building: This SEPP provides a uniform definition for calculating the number of storeys in a building. • SEPP 22 — Shops and Commercial Premises: This SEPP permits changes with a business zone between shops and commercial premises. • SEPP 33 — Hazardous and Offensive Development: This SEPP provides for the assessment of hazardous and offensive developments. • SEPP 44 — Koala Habitat Protection: This SEPP requires special procedures for development in potential koala habitat and core koala habitat. • SEPP 55 — Remediation of Land: This SEPP provides a statewide approach to the remediation of contaminated land. • SEPP 60 — Exempt and Complying Development: This SEPP applies to only a limited area in Metropolitan Sydney and regional areas, as such matters are usually contained in a council’s Development Control Plan. • SEPP 64 — Advertising and Signage: This SEPP deals with advertising and signage. • SEPP 65 — Design Quality of Residential Flat Development: This important SEPP deals with design quality principles and design review panels for residential flat buildings of three or more storeys or buildings containing four or more self-contained dwellings. • SEPP 71 — Coastal Protection: This SEPP makes provision for the regulation of development in the coastal zone.

• SEPP (Housing for Seniors or People with a Disability) 2004: This SEPP provides for seniors living development throughout New South Wales. • SEPP (Building Sustainability Index: Basix) 2004: This SEPP provides for the appropriation of the scheme to encourage sustainable residential development. • SEPP (Major Development) 2005: The SEPP provides for state significant sites which are subject to Div 4.1 of Pt 4 of the EPA Act. • SEPP (Mining, Petroleum Production and Extractive Industries) 2007: This SEPP regulates permissibility of mining, permits co-location of industry and provides for special considerations for mining developments. • SEPP (Temporary Structures) 2007: This SEPP regulates the erection of temporary structures. • SEPP (Infrastructure) 2007: This SEPP regulates the permissibility of infrastructure and categories of infrastructure from the need to obtain development consent concerning areas such as air transport terminals, correctional centres, educational establishments, electricity generating and transmission systems, emergency and bush fire hazard reduction, flood mitigation works, forestry, gas transmission and distribution, health services facilities, parks and public reserves, ports, wharf and boating facilities, public administration buildings, railways, research stations, roads, sewerage systems, soil conservation, stormwater systems, telecommunication facilities, waste or resource management facilities, water supply systems and waterway or foreshore management activities. Of importance for private developments are provisions relating to development on classified roads and consultation with the Roads and Traffic Authority for development applications for traffic generating developments (Div 4.1 of Pt 4).

• SEPP (Rural Lands) 2008: This SEPP provides principles for rural planning and subdivision. • SEPP (Exempt and Complying Development Codes) 2008: This SEPP provides a general code for exempt and complying development for minor activities. • SEPP (State and Regional Development) 2011: This SEPP provides for State significant development and State significant infrastructure. In addition it identifies regional development where a joint regional planning panel is the consent authority instead of the Council.

REGIONAL ENVIRONMENTAL PLANS ¶28-010 Regional planning to original Environmental Planning and Assessment Act 1979 Complementary to State Environmental Planning Policies (SEPPs), under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), prior to the Environmental Planning and Assessment (Amendment) Act 2008 No 36 (NSW) (2008 Amendments), there was a further type of Environmental Planning Instrument (EPI), called Regional Environmental Plans (REPs). The provisions relating to REPs were contained in s 40–52 in various forms prior to their repeal by the 2008 Amendments. Prior to the enactment of the EPA Act, the NSW Planning and Environment Commission and its predecessor, the State Planning Authority of NSW, had prepared a number of major regional planning documents on a non-statutory basis, including The Sydney Regional Online Plan, The Hunter Regional Plan, The Illawarra Regional Plan, The Macarthur Growth Centre Structure Plan, The Gosford-Wyong Structure Plan and The Botany Bay Sub-Regional Plan. Regional planning was a central part of the EPA Act when originally enacted for the following reasons:

• Regional planning comprised the principal basis for planning to represent a clear and coherent policy basis, responsive to changing circumstances, based on land capability assessment, and imparting clear directions for planning, development and environmental protection in a spatial dimension, unencumbered by local detail. This followed the report of the Planning Advisory Group in the United Kingdom (UK) entitled “The Future of Development Plans” (1965) and the Town and Country Planning Act 1968 (UK).1 • Regional planning provided a vehicle for defining the respective roles of State and local government, with the State responsible for State policies and regional plans and local government responsible for local planning. • Regional planning is inherently strategic in nature outlining key approaches in the spatial planning of a region. • Regional planning provided a basis for planning to be perceived as a relevant and useful policy lever of government, rather than a reactive instrument of bureaucratic regulatory zeal. • Regional planning provided a vehicle to integrate concerns regarding the coordination of the provision of services and infrastructure, the need to better respond to environmental challenges and meet the social and economic aspirations of the community. • Regional planning provided a suitable basis for community engagement as the policy choices and directions are explicit and clear and more readily understandable. Footnotes 1

Delafons, J, 1998, “Reforming the British Planning System 1964–5”, Planning Perspective, Volume 13, p 373–387.

¶28-020 Planning reforms package released in 2004 In September 2004, the Minister for Infrastructure, Planning and Natural Resources, Craig Knowles MP, released a package of planning reforms. These reforms had four main plans:2 “1 Strategically assess and plan for priority growth areas. 2 Simplify plan making by reducing the layers of planning instruments and making the local environmental plan the primary instrument. 3 Improve development assessment. 4 More flexible use of developer financial contributions for local facilities and services (under section 94 of the Environmental Planning and Assessment Act 1979).” In relation to strategic assessment and planning, the 2004 Reform Package stated:3 “The strategic reforms will focus on high-priority, big-picture planning for the future. The Government will develop up-front strategies for regions in NSW. … The Government is keen to ensure that its strategic objectives are reflected in all decisions about land use. A State Strategic Planning Framework (‘the framework’), comprising regional strategies and other key documents, will be created under the Environmental Planning and Assessment Regulation 2000. The Regulation will list the types of documents that can be included in the framework. Specific documents will be added to the framework, as they are developed by a Ministerial order published in the NSW Government Gazette. The Regulation will require local councils to prepare local environmental plans that translate key parts of the framework documents into legally enforceable requirements. The framework will greatly clarify the State’s strategic plans, circulars and

guidelines that local planners need to consider. The NSW government will no longer need to constantly make or amend State environmental planning policies and regional environmental plans when responding to key issues. DIPNR’s highest priority over the next two years is to coordinate whole-of-government regional strategies for key priority areas. These will strategically direct how sustainable development will occur in these regions over the next 30 years. They will: identify where growth will occur; the infrastructure required to support economic development; inform the budgeting process; and, therefore, ultimately create regions that are better places to live and work. These new strategies will not be legal instruments. They will also differ significantly to existing regional environmental plans, which often contain detailed development controls and instructions for additional studies to be undertaken as part of making local environmental plans. The regional strategies will identify: • settlement patterns • major land release areas • infrastructure and transport priorities • infrastructure costs, budgets and financing arrangements • appropriate sites for development • locations for economic development and jobs • high conservation areas. … As part of developing the regional strategy, a strategic assessment will be undertaken. This will help identify constraints and opportunities, and test the impacts of various alternatives or scenarios for development. It will add rigour to the strategy’s

direction and implementation. Eventually rural and regional communities will also benefit from better strategic planning by local councils, new local environmental plans, simplified delivery of development controls and links to natural resources planning. Legislative changes will make sure that catchment action plans and the State Strategic Planning Framework both work towards the same outcomes. Partnerships between catchment management authorities and local government will also be fostered to generate consistency in objectives and outcomes. The regional strategies will be part of the new State Strategic Planning Framework. This will ensure that local councils translate the critical parts of relevant regional strategies into enforceable development requirements within their local environmental plans.” Footnotes 2

NSW Government, NSW Department of Infrastructure, Planning and Natural Resources (DIPNR), 2004, Improving the NSW Planning System, Sydney, ISBN 0 7347 5530 9, p 4.

3

ibid, p 4–6.

¶28-030 Regional strategies in place of State Strategic Planning Framework The State Strategic Planning Framework never eventuated, although the Department did proceed to prepare a series of regional strategies. The 2004 Reform package noted that these strategies would not be legal instruments and would differ from existing REPs. No reasons were proffered as to why these regional strategies would not be made as REPs under the EPA Act.

In the paper entitled “Improving the NSW Planning System” (Discussion Paper), released by the Department of Planning in November 2007, the REPs received peremptory treatment as follows: “The making of REPs has tended to be ad hoc and in response to particular pressures in a region. In some cases, REPs have dealt with a specific issue, such as Sydney REP No 9 — Extractive Industries or Sydney REP No 10 — Blue Mountains Open Space. There has been some criticism that REPs do not provide the necessary regional strategic guidance for local planning. This criticism draws from the overly procedural nature of preparing/amending REPs which means they do not respond to changing circumstances in a timely manner. The recent release of the Metropolitan and Regional strategies has provided a non statutory way of providing key policy to identify sustainable development outcomes and address matters of regional significance. This approach provides a much more effective, robust and timely approach to regional planning than is the case with the more cumbersome REP process under the EP&A Act.”4 “Rationalising SEPP and REPs The preparation and implementation of regional and subregional strategies enables the option of progressively reviewing and reducing the number of REPs. Consideration could also be given to enabling SEPPs to be prepared for issues of regional significance. This initiative, together with the incorporation of REP provisions into the comprehensive LEPs being prepared by councils, and the strategic guidance provided by the regional and subregional strategies, can potentially enable this layer of plan-making to be abolished. By removing REPs the system would be greatly simplified. The continued rationalisation of SEPPs to simplify the number of planning controls that apply to any parcel of land is an ongoing initiative. For example, the draft infrastructure SEPP consolidates

21 separate instruments into a single, overarching plan. To further simplify the system a review of SEPPs could be undertaken on a sectoral basis (for example, housing, natural resources, industry sectors) which could be supported by best practice principles and guidelines.”5 The Discussion Paper then recommended as follows: “P8. The Department of Planning should continue to streamline and reduce the number of REPs and SEPPs by: P8.1 Preparing and implementing the regional and subregional strategies. P8.2 Enabling SEPPs to be prepared for issues of regional significance. P8.3 Further consolidation of SEPPs. P8.4 The possible removal of REPs from the plan-making system. P9. The Department of Planning would issue guidelines for different levels of LEPs and DCPs to support a new system that would identify the appropriate content and timeframes of these Plans and non-compliance with State policies such as SEPP 65 would be prevented. P10. The following measurable outcomes are recommended for the changes to plan-making. P10.1 Reduce processing time for LEPs by 50 per cent. P10.2 Reduce the number of SEPPs/REPs by 50 per cent.”6 In essence, it appears that the Department’s position is that regional strategies are the best approach to regional planning and that utilising the statutory framework for such regional strategies is not favoured because: • existing REPs (prepared by the very same Department) do not

provide strategic guidance, are overly procedural and are not timely, and • removing REPs would simplify the system. It is curious that the criticisms levelled by the Department are essentially criticisms not of the statutory framework but of its own performance in relation to REPs. Left unsaid of course is that, with no statutory framework, regional strategies have no accountability, no public rights and no set of checks and balances for public scrutiny and review in the case of failure to observe those accountabilities, rights and checks and balances. Footnotes 4

NSW Government, NSW Department of Planning (NSW DoP), November 2007, Improving the NSW Planning System: Discussion Paper, Sydney, p 33.

5

ibid, p 43.

6

ibid, p 48.

¶28-040 Repeal of provisions relating to Regional Environmental Plans Following this Discussion Paper, the NSW Parliament enacted the 2008 Amendments, which repealed all of the provisions of the EPA Act relating to REPs. In his Agreement in Principle Speech, the Minister for Planning, Frank Sartor MP, said on 15 May 2008:7 “I now refer to the parts of the Environmental Planning and Assessment Bill 2008 dealing with plan making. Land use planning provides the guiding framework for balancing economic

development and investment and infrastructure to meet State, regional and local needs as well as protecting sensitive environmental areas. However, the plan-making process in New South Wales has become lengthy, complex and confused. Even small amendments take on average 196 days. To simplify the planning regime, one layer of plans — regional environmental plans will be removed from the Act. The bill also provides for some minor changes to the State environmental planning policy process. The big reforms are to the local environmental planmaking process.” Following the 2008 Amendments, cl 120 and cl 121 of Sch 6 of the Savings and Transitional Provisions of the EPA Act (enacted by s 159 of the EPA Act) provide the continuance in force of existing SEPPs and REPs and for a review process for existing REPs. Footnotes 7

NSW Parliament, Legislative Assembly Hansard, 15 May 2008, p 7695.

¶28-050 Strategic planning documents produced The Department of Planning has produced a number of strategic planning documents including: • December 2010 update to the 2005 Metropolitan Strategy for 10 subregions • Central Coast Regional Strategy (2008) • Lower Hunter Regional Strategy (2006) • Far North Coast Regional Strategy (2006) • Mid North Coast Regional Strategy (2009)

• Illawarra Regional Strategy (2007) • South Coast Regional Strategy (2007), and • Sydney-Canberra Corridor Regional Strategy (2008). The s 117 directions issued by the Minister require planning proposals to be consistent with regional strategies8 and with the Metropolitan Plan for Sydney.9 This implementation of the Regional Strategies and the Metropolitan Plan is achieved through the back door of s 117 directions, while avoiding the plan making statutory process of the EPA Act. Footnotes 8

Direction under s 117(2) of EPA Act, s 5.1, issued 1 July 2009.

9

Direction under s 117(2) of EPA Act, s 7.1, issued 1 February 2010.

DEVELOPMENT STANDARDS AND STATE ENVIRONMENTAL PLANNING POLICY NO 1 ¶29-010 Background Under State Environmental Planning Policy No 1 — Development Standards (SEPP 1) flexibility is provided in the application of development standards. It was originally gazetted on 17 October 1980. In Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919), predecessors to SEPP 1 existed in relation to “minimum requirements” in a prescribed planning scheme in s 342NA and in Interim

Development Orders (IDOs) in s 342VA. Both of these provisions were inserted by the Local Government (Appeals) Amendment Act 1971 No 78 (NSW), the legislation that established the then Local Government Appeals Tribunal (the Tribunal) as a merit appeal tribunal for planning decisions. The key issues of note in relation to these provisions were as follows: • The range of development standards (here called “minimum requirements”) were significantly less than is encompassed by the definition of “development standards” in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). In particular, paragraphs (c) (in part only), (f), (h), (j), (k), (l), (m), (n) and (o) of the definition of “development standards” were not included in the definition of “minimum requirements” in s 342NA(1) and s 342VA(1) of Pt 12A of the LG Act 1919. • They required an objection to compliance with minimum standards to be lodged with a development application (DA) provided that a consent authority could approve the DA, provided compliance with the minimum requirements was “unreasonable and unnecessary in the circumstances of the case”. This is similar to the current test under SEPP 1, except that SEPP 1 requires that the granting of consent is consistent with the aims of the policy. • The major difference between these provisions and SEPP 1 is that under s 342NA and s 342VA the consent authority was not empowered to uphold an objection to compliance with minimum requirements. Rather, the objection had to be referred to the Tribunal for the issue of a direction in relation to the objection and the Tribunal’s direction was required to be embodied in any consent granted by the consent authority. In SEPP 1, objections do not require reference to and upholding by the Land and Environment Court of NSW (NSWLEC). Under SEPP 1, the constraint on a consent authority is the requirement for concurrence by the Director-General of the Department of Planning, a concurrence power which, in many instances, has been delegated to the Council’s principal planner.

Even the narrower regime in relation to minimum requirements under Pt 12A of the LG Act 1919 had its critics. Leon Hort, the Solicitor to the NSW Planning and Environment Commission, wrote in 1976 in relation to s 342NA:1 “It is considered that this jurisdiction should clearly be exercised where the variation proposed is of minimal significance. Any extension of its application beyond these circumstances would be a complete mockery of the complicated and detailed process followed in the prescription of the planning scheme which imposed the minimum requirements. A surprising number of these cases are dealt with by the Tribunal.” Footnotes 1

Hort, LD, 1976, “Prescribed Town and Country Planning Schemes”, in H Whitmore (ed), Butterworths Local Government Legislation Service, Chapter 11, paragraph 11.200, Butterworths Pty Ltd, Chatswood, p 43.

¶29-020 Application of State Environmental Planning Policy No 1 to development standards SEPP 1 applies to “development standards” as defined in s 4(1) of the EPA Act as follows: “(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building, or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed.”

¶29-030 Key features of State Environmental Planning Policy No 1 The key features of SEPP 1 are as follows: • A DA for development which does not comply with a development standard may be lodged with a written objection under SEPP 1. • The non-compliance can only relate to a “development standard” (defined in cl 2 of SEPP 1 as having the same meaning as provided in s 4(1) of the EPA Act). • The objection is that compliance with the development standard in

question is unreasonable or unnecessary in the circumstances of the case, and the grounds for this are required. • The consent authority is empowered to grant consent to a DA which does not comply with a development standard if: – it is satisfied the objection is well-founded, and/or – if it considers approval of the DA would be consistent with aims set out in cl 3 of SEPP 1. These aims are to provide flexibility in the application of development standards where strict compliance would be: • unreasonable • unnecessary, and/or • tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the EPA Act. • The consent authority needs the concurrence of the DirectorGeneral of the Department of Planning in granting consent to a DA with an objection under SEPP 1.

¶29-040 I.D.A. Safe Constructions Pty Ltd v Woollahra Municipal Council — issue of validity The issue of the validity of SEPP 1 was considered by McClelland CJ in the NSWLEC in I.D.A. Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 (I.D.A. Safe Constructions) where the NSWLEC heard a merit appeal against Council’s refusal of a DA for a residential flat building at Point Piper. One of the applications, the subject of this appeal, breached the applicable floor space ratio (FSR) control. During this case, the Council argued that SEPP 1 was void. McClelland CJ held at p 78–81: “Mr McClellan submitted that the effect of State Policy No. 1 is not to deal with matters of significance for environmental planning for the State but rather is related to matters of purely local concern.

The policy purports to give power to a council to vary a provision of a local planning scheme (a development standard) which may control the development of a particular site. This particular development cannot be a matter of significance for the State but is merely a matter of significance to the local environment. There can be no suggestion of a matter of State significance in the subject application. He stated that the State policy purports to amend local environmental plans by providing a discretion to approve development applications which do not accord with the mandatory provisions of the plan. A strict code of provisions is contained in the Environmental Planning and Assessment Act, 1979 for the making and for the variation of local plans. No provision is contained for a plan to be varied by a State policy. If, he submitted, the legislation had intended that a local plan could be varied by a State policy it would have included a provision to this effect in the Act. It did not do this for the obvious reason that local plans are to be made only after an exhaustive process of public exhibition and objection designed to ensure that there is public participation in that planning process. This public participation will include submissions in relation to development standards. It is a direct contradiction of this process to purport to amend the plan by a policy which has not been the subject of any public participation and in respect of which the public have had no opportunity of making representations. … [p 80] … The Environmental Planning and Assessment Act does not envisage the erection of a Berlin wall between State environmental planning policies, regional environmental plans and local environmental plans. … [p 81]

… The obvious aim of the policy is to temper uniformity with flexibility. The absurd result which may ensue from the rigid application of the terms of planning instruments is illustrated by the fact that, if the policy did not permit a modification of its application, the Woollahra Planning Scheme Ordinance would absolutely forbid the present development if the floor space ratio were 1:16:1 instead of 1:15:1. To contend, as Mr McClellan does, that the recognition and cure of this planning absurdity is a matter of purely local and not of State significance, is to take a very narrow view of the purposes of the Act. It is difficult to see how the perpetuation of the rigidity which the policy is designed to modify would lead to ‘the promotion and co-ordination of the orderly and economic use and development of land’: s.5(1)(ii). Mr Bingham correctly submitted that the fact that a State Environmental Planning Policy will find expression in individual local instances does not deprive it of ‘significance for environmental planning of the State’. Such significance depends, not on its individual application but on the principles embodied in the policy. Mr McClellan’s submission that, if the legislature had intended that a local plan could be varied by a State policy it would have included a provision to this effect in the Act misconceives the effect of the policy. It does not vary any local plan but merely confers on a consent authority with the concurrence of the Director of the Department of Planning and Environment a discretion to grant consent to a development application if satisfied, on application to that effect, that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case. A local plan would not be varied by the exercise of such a discretion in a particular case.” Conclusions The following conclusions can be derived by McClelland CJ’s decision in I.D.A. Safe Constructions: • The fact that the application of a SEPP based on a general policy will be expressed in individual local decisions does not deprive

the policy of significance for State or regional environmental planning. • The legislature clearly intended that a SEPP could vary an LEP.

¶29-050 SCMP Properties Pty Ltd v North Sydney Municipal Council — nature of a development standard In SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351 (SCMP), Senior Assessor Bignold (as he then was) of the NSWLEC considered a merit appeal by an applicant relating to a DA to construct a residential flat building at Kirribilli. The application was accompanied by an objection under SEPP 1 in relation to noncompliances with development standards in the applicable Environmental Planning Instrument (EPI) in relation to density controls, landscaped area, height of buildings, number of storeys, maximum site occupation of a building, separation between buildings and setbacks. In SCMP the respondent made three general submissions relating to SEPP 1: (1) The policy was invalid. (2) Assuming the validity of the policy as a matter of construction, the dispensing power conferred by the policy had not been found and could not be invoked in the circumstances of this case. (3) Assuming the dispensing power was available in the circumstances of this case, as a matter of discretion and based on considerations of principle and policy, the Court should refuse to exercise it. Examining each of these issues, Bignold SA held: (1) Validity of policy: Bignold SA followed the decision by McClelland CJ in I.D.A. Safe Constructions that SEPP 1 was valid. However, Bignold SA noted in that case that ultimately, SEPP 1 was not required and hence, McClelland CJ’s finding was

strictly obiter. (2) Dispensing power of SEPP 1 not available: In this case, the applicant founded the SEPP 1 objection on the grounds that compliance with the standard was “unnecessary” in the circumstances of the case. Bignold SA noted the SEPP 1 objection was not based on the alternative basis, namely that compliance would be unreasonable. Council argued that compliance could only be “unnecessary” if the object of the development standard or its underlying purpose were not relevant to the proposed development. Bignold SA rejected that submission but declined to outline exhaustively the ambit of what is unnecessary. However, Bignold SA did say at p 379: “The Court does not think it desirable or prudent to attempt to exhaustively define the limits of the dispensing power based upon an objection that compliance is unnecessary in the circumstances of a case. It is sufficient to say in the context of this appeal that it is open to a consent authority or, on appeal, this Court, to conclude that an objection under the policy that compliance with a development standard is unnecessary is well founded within cl 7 of the policy if it is demonstrated that the underlying object or purpose of a development standard is satisfied by the particular development proposal. Of course this proposition is not to be taken as exhaustively defining the scope of the dispensing power in relation to objections that compliance is unnecessary. But it is clear that such proposition is not accommodated by the respondent’s restrictive interpretation.” The Council argued further that compliance with a standard could not be held to be “unnecessary” in circumstance where doing so would involve a subjective value judgment or a matter of degree, because the very purpose of a standard is to avoid such problems. Bignold SA rejected this argument and stated at p 385: “It follows from the foregoing discussion that there can be no

support for the respondent’s restrictive interpretation of the dispensing power based upon the nature and function of development standards. It is abundantly clear that the purpose or object of development standards is not to avoid the need for planning value judgments to be made, as was contended by the respondent. Indeed there is a long line of authority in the former Land and Valuation Court to the effect that compliance with the standards of a residential flat building code or with the standards of Sch 7 of the Local Government Act 1919 (NSW) did not pre-empt or unduly influence the exercise of discretion by a consent authority to refuse development consent on grounds including grounds or matters dealt with by the code or Sch 7: see KR Wilson Pty Ltd v Kogarah Municipal Council (1966) 12 LGRA 259; Arena v North Sydney Municipal Council (1969) 17 LGRA 405 and Stuart Bros Pty Ltd v Woollahra Municipal Council (1960) 6 LGRA 215.” (3) Dispensing power should not be exercised: The Council argued that the Court should not exercise the dispensing power as the Court would be stepping outside its role of being a planning adjudicator and into the role of a planner or the maker of planning parameters. Bignold SA rejected this submission stating at p 386–387: “This submission is closely linked with the respondent’s submission that development standards are in the nature of legislative rules. Moreover, it is argued, such ‘rules’ are made by planning authorities responsible to the public for their decision-making and should be made in accordance with the provisions of Pt III of the Environmental Planning and Assessment Act. If the Court were to become involved in ‘making rules’ by virtue of personal value judgments there is the likelihood of inconsistent judgments by different members of the Court with the likely result of a lack of acceptability by the [p 387]

public of the Court’s decisions generally. Hence the respondent’s admonition to the Court not to exercise the discretion conferred by the policy. The Court is unable to accept this submission for to do so would be tantamount to declining, without just or proper cause, to exercise the jurisdiction conferred upon the Court by the combined operation of the policy and the Environmental Planning and Assessment Act. Moreover the gloomy scenario painted by the respondent appears to derive from its fundamental misapprehension not only of the nature of development standards but the nature of the dispensing power conferred by the policy. To describe the exercise of the power as ‘the making of the rules’ grossly overstates the effect of the relief granted in relation to a particular development application and particular circumstances. To suggest that to exercise the dispensing power is to usurp the legislative power to ‘make the planning rules’ totally fails to appreciate that the dispensing power has been granted by the chief ‘planning rule maker’ namely, the minister, in recommending the making of the SEPP. Moreover it fails to recognise that the dispensing power is conferred, in the first instance, upon consent authorities (that is, planning bodies who have the responsibility for preparing and making environmental plans) and hence ‘the rule makers’. It is only in cases such as the present where the consent authority refuses (or is deemed to have refused) development consent that the Court has any role under the policy. That role is to determine the appeal brought under s 97 in respect of the consent authority’s refusal of development consent.”

¶29-060 Woollahra Municipal Council v Carr In Woollahra Municipal Council v Carr (1995) 62 LGRA 263, the NSW Court of Appeal considered what constituted a development standard. The case involved an appeal from a decision of the NSWLEC to grant a merit appeal in relation to a DA for dental consulting rooms where it was proposed that more than three persons would be used to assist

the dentist. In the applicable zone, development for the purpose of professional consulting rooms was permissible with consent. However, the applicable EPI defined “professional consulting rooms” as: “… a number of rooms forming part of … a dwelling house and used or intended for use by not more than … three dentists … who practice therein the profession of … dentistry … and, if more than one, practice in partnership, and who employ not more than three employees in connection with such practice.” The DA was accompanied by an objection under SEPP 1 in relation to the number of employees. The Court of Appeal (Samuels JA, Priestly JA and McHugh JA) agreed that this was not a development standard and hence, SEPP 1 was not applicable. In the course of the hearing, Council abandoned a challenge to the validity of SEPP 1 and the Court of Appeal did not decide this issue but proceeded with the appeal on the assumption that SEPP 1 was valid. McHugh JA held at p 269–270: “The respondent submits that, ‘but for’ the ‘development standard’ requiring that a dentist shall not employ more than three persons in connection with his practice, development could be carried out under the Act. The respondent in argument particularised the development as the use of a building for a dental surgery. But the Woollahra Planning Scheme makes no provision for the use of a building as a dental surgery. It does make provision, however, for the use of a building as ‘professional consulting rooms’. For the purposes of cl 6 of SEPP No 1 this is the relevant development. Once the development is particularised in this way, I think that the appeal must succeed. It is not correct to say, as the respondent submits, that the development, ie the use of the building as professional consulting rooms as defined could be carried out under the Act ‘but for’ the prohibition of having more than three employees. The development could not be carried out even if that requirement was eliminated, because there is no other relevant

category in the Woollahra ordinance which permits a dental surgery with more than three employees in this residential zone. The use of premises as a dental surgery with more than three employees is not the use of a building for professional consulting rooms. It is not within any permitted use or purpose as defined in the Planning Scheme. The respondent’s submission requires the rewriting not of a ‘development standard’ but of the definition of a permitted use — ‘professional consulting rooms’. I have reached this conclusion with no enthusiasm, because it places a premium on form and penalises the substance of the matter. Counsel for the appellant conceded that, if the prohibition against employing more than three persons had been contained in the body of the ordinance and not as part of the definition, it would be a ‘development standard’ within cl 6 of SEPP No 1 and s 4(1) of the Act. This shows how arbitrary is the conclusion which is required in this case. The learned assessor appreciated the logical force of the appellant’s submission. But he said: ‘The fact that the limitation on the number of employees is an element of the defined term ‘professional consulting rooms’ does not per se disqualify it from being a provision specifying a requirement in respect of an aspect of that development. Accordingly the court has concluded that the limitation on the number of employees is a development standard within the meaning of the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy No 1.’ This analysis, however, overlooks the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or [p 270] fixed standard ‘in respect of’ an aspect of a development until the development and its aspects are defined. For example, the two

storeys of a duplex building are not in any relevant sense requirements specified or standards fixed in respect of any aspect of the use of a duplex. In my opinion the appeal should be allowed. The appeal to the Land and Environment Court should be dismissed, and the development application refused.” McHugh JA noted that he reached his conclusion reluctantly because it places a premium on form and penalises substance. But the emphasis that requirements specified or the standards fixed in respect of a development must be requirements or standards that are external to the development rather than an integral part of what the development itself is.

¶29-070 Hooker Corporation Pty Ltd v Hornsby Shire Council In Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 (Hooker), Cripps J in the NSWLEC considered a merit appeal against the refusal by Council of a commercial office tower with ground floor retail in land zoned General Business 3(a) under the Hornsby Planning Scheme Ordinance, a deemed EPI. Clause 80 of the Ordinance provided for a maximum FSR of 1:1. The applicant had lodged an objection under SEPP 1. Cripps J did not uphold the objection under SEPP 1. He held at p 441–442: “It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the Court has urged a generous application of SEPP No 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression

‘circumstances of the case’, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose: see SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351, Gergeley & Pinter v [p 442] Woollahra Municipal Council (1984) 52 LGRA 400, Claude Neon v Rockdale Municipal Council (unreported, Land and Environment Court, NSW, 10 September 1985) and Hooker-Rex Estates v Hornsby Municipal Council (unreported, Land and Environment Court, NSW, 27 July 1983). Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the planmaking procedures set out in Pt III of the Environmental Planning and Assessment Act.”

¶29-080 North Sydney Municipal Council v P.D. Mayoh Pty Ltd [No 2] The question of what is included in the meaning of “development standard” was considered by the NSW Court of Appeal in North Sydney Municipal Council v P.D. Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 (Mayoh). This case dealt with whether cl 14A(1)(a) of the North Sydney LEP 1989 (NSLEP) was a development standard. Clause 14A(a) provided: “A residential flat building shall not be erected on land in zone 2(c) if: (a) Any principal building on adjoining land is less than 3

storeys measured vertically above any point at natural ground level.” The respondent had lodged a DA to erect a residential flat building at Kirribilli on land zoned Residential 2(c). There were principal buildings on the land adjoining the DA site which were less than three storeys. The majority of the Court (Mahoney JA and Clarke JA) held that cl 14A(1)(a) was not a development standard, but a prohibition. Kirby P was in dissent. Mahoney JA held at p 232–233: “‘Development standard’ is defined by the Environmental Planning and Assessment Act, s 4 as being: ‘… provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of: (a) ….’ The definition, in its form, specifies the species of the ‘provisions of an environmental planning instrument’ with which it deals, namely, ‘provisions … in relation to the carrying out of development’; and then specifies that part of that species to which it is directed, namely, ‘provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development’. If the definition is to be construed according to its terms, three things may be said. First, the definition applies, in the first instance, only to provisions which are ‘provisions … in relation to the carrying out of development’. Therefore that with which the definition deals is provisions relating, not to whether development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out,

particular things are required to be done or particular standards to be observed. And the requirements or standards are to be those fixed ‘in respect of’ ‘that development’. Secondly, the use of the phrase ‘requirements are specified or standards are fixed’ provides some (though, of course, not conclusive) support for the view that that with which the definition deals is the details of a development [p 233] which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all. And, thirdly, the matters detailed in subpars (a) to (n) of the definition, in so far as a pattern can be seen from them, provide further support for this view. They assume that development of a kind, for example, the erection of a residential flat building, can be carried out and they provide for the things which are required and the standards which are to be observed in the carrying out of that development. They deal, for example, with the ‘siting’ of a flat building which is to be erected on the land and ‘the distance of’ relevant things from any specified point.” Clark JA held at p 236–237: “I would conclude, therefore, that it is erroneous to categorise cl 14A(1)(a) as a development standard relating to an aspect of a permitted development. In my opinion it lays down a prohibition against a specific land use applying to blocks of land within the zone which have the characteristics set out in the clause. The point is reinforced by the fact that cl 14A(1)(a) lays down an absolute prohibition on the use of certain land for a particular purpose whereas development standards lay down requirements or standards against which the proposed development is to be measured: see Warringah Shire Council v K V M Investments Pty Ltd (1981) 45 LGRA 425 at 432, 440. There is, in my view, a great difference between a clause which prohibits the carrying out of a particular development on identified land and one fixing

requirements to be complied with in carrying out that development. This point was made with some force by Holland J in Kruf v Warringah Shire Council (15 December 1988, unreported): ‘Flexible though the definition of ‘development standard’ in s 4(1) of the Environmental Planning and Assessment Act 1979 may be, it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality or under specified conditions is setting a standard for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards. In terms of definition, there cannot be ‘requirements specified or standards fixed in respect of any aspect of that development’ when there may not be any such development.’ Subject only to the reservation that there may be difficulties flowing from the inclusion of the words ‘or under specified conditions’ I agree with his Honour’s statement. Accordingly I would conclude that Bignold J was in error. Clause 14A(1)(a) is not, in my opinion, a development standard and his Honour ought to have dismissed the application. Before concluding this judgment there are three other matters to which I should refer. In the course of his discussion the trial judge said that the proposed development was relevantly external to that aspect of the development which related to its location and siting. That statement followed the quotation of a portion of the judgment of McHugh JA in Woollahra Municipal Council v Carr (1985) 62 LGRA 263. There his Honour said: ‘This analysis, however, overlooks the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or fixed standard ‘in respect of’ an aspect of a development

until the development and its aspects are defined.’ It seems to me that Bignold J has wrongly applied that passage in this case and it may be helpful if I explain my understanding of the thrust of McHugh JA’s observations. In Carr the proposed development in question was that of professional consulting rooms which was defined in the relevant instrument to mean a number of rooms, inter alia, ‘used or intended for use … by not more than three dentists … and who employ not more than three employees’. The submission was that the condition restricting the number of employees was a development standard as it specified a requirement in respect of an aspect of that development. The argument was rejected upon the ground that the restriction appeared in the definition of the development which was under consideration. The point being made by his Honour was simply that the provision did not lay down a standard against which the proposed development could be measured but itself formed part of the definition of the development. If, for instance, in the present case, residential flat buildings were defined in the table in cl 9 as meaning residential flat buildings with no more than two storeys no part of that definition could be regarded as a development standard. In this case the Court is not concerned with the definition of residential flat buildings and with the greatest respect to Bignold J the passage in McHugh JA’s judgment does not assist in the resolution of the question whether cl 14A(1)(a) lays down a development standard. The second observation concerns statements by counsel during argument that there is a conflict between the decision in Kruf and a number of other decisions in the Land and Environment Court. These statements mirrored observations to similar effect by Bignold J when he said that Kruf had been distinguished in two later cases (now three) and not followed in one (which was another decision of Bignold J). As I understood it the suggestion being conveyed was that there was a division of opinion in the Land and Environment Court and

that the majority of judges did not favour the approach of Holland J in Kruf. I should say at the outset that I have not found the decisions in any of the other cases helpful to the resolution of this appeal for the simple reason that each concerned markedly different provisions in different planning instruments. The court was in each case concerned to construe the relevant clauses in the instrument in question in order to determine whether it laid down a development standard. Likewise this Court has been concerned with cl 14A(1)(a) appearing in NSLEP. Decisions on other clauses in other instruments, particularly if they concern provisions markedly different to the one under consideration, are, at best, of limited assistance. The court is required to determine the meaning and effect of the clause under consideration. While observations in cases concerning other clauses on the approach to construction may prove helpful, or afford some guidance, the actual decision has no relevance.” Thus, Mahoney JA noted the following aspects of the definition of “development standard”: • The definition only applies to provisions of an EPI related to the carrying out of development. It does not extend to provisions about whether the development may be carried out at all, but is limited to how it is carried out. • The definition relates to the details of a development to be carried out or standards which need to be observed while carrying it out, not whether the development can be carried out at all. • The detailed list of matters in the definition assumes that the development can be carried out and they provide for things which must be observed in carrying out that development. Clarke JA explained the need to distinguish between a development standard relating to an aspect of permissible development and a prohibition against a land use which has certain characteristics. Clarke

JA also cautioned against reliance on the outcome in other cases dealing with markedly different provisions. In dissent, Kirby P considered that cl 14A(1)(a) was a development at p 224–230: “The establishment of a specialised court to superintend planning decisions and the provision of many discretions to local government authorities, and to that court, suggest that the new regime of planning law in this State contemplated an avoidance of the rigidities which sometimes marked its predecessor. Inflexible administrative law is a bane of the age. The introduction of structured discretions, subject to the obligation of reasons and to review, frequently mitigates the injustice which can arise from the application of unbending rules. Fact situations, including those in planning matters, are frequently so special and particular that the provisions of discretions to mollify the operation of general rules can often advance the public good. So much appears to be recognised in the overall scheme of the Act and the environmental plans made under it: cf Warringah Shire Council v Sedevicic [sic. Should be “Sedevcic”] (1987) 10 NSWLR 335; 63 LGRA 361 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82; 64 LGRA 177 at 192–193. … [p 229] But does the clause amount to a provision ‘in relation go [sic. Should read “to”] the carrying out of development’? Holland J in Kruf thought not. He thought it was one prohibiting development. But even a prohibition can ‘relate’ to the carrying out of development. So much is plain from s 26 of the Act: the only provision of the Act in which work is provided for the defined phrase ‘environmental planning instrument’. As has been pointed out, it may make provision with respect to ‘controlling (whether by the imposing of development standards or otherwise) development’. And ‘controlling’ includes prohibition. Therefore, the mere fact that cl 14A(1)(a) of the LEP here in question prohibits the erection of a residential flat building does not, of

itself, take the clause outside the description of a ‘development standard’. Accordingly, because elsewhere in the Act prohibition is contemplated to be perfectly consistent with the laying down of standards, it must be assumed that the definition of ‘development standards’ in s 4 of the Act itself contemplates prohibition as being a provision ‘in relation to the carrying out of development’. But is the prohibition in cl 14A(1)(a) a provision ‘by or under which requirements are specified or standards affixed in respect of any aspect of that development’? The generality of these words must be noted. … The ‘development’ relevantly is ‘a residential flat building’. The ‘aspects’ of the development include its ‘character’, its ‘design’, its ‘location’ and its ‘relationship … to development on adjoining land’. The requirements imposed by cl 14A(1)(a) of the LEP are ‘external’ to any and all of these ‘aspects’. Furthermore, the requirement imposed by the clause that all principal buildings on an adjoining land must be three storeys or more in height is one which is specified ‘in relation to’ any and all of the foregoing aspects. Accordingly, the third condition of the definition of ‘development standard’ in s 4(1) of the Act is fulfilled. Holland J’s approach to the meaning of ‘development standards’ has, it must be conceded, a logical attractiveness when those words are given their ordinary English meaning. If development is prohibited, ‘standards’ for that ‘development’ are inapplicable. One does not descend into the detail of the ‘standards’ because the ‘development’ is simply forbidden. However, when one turns to the special statutory definition of the phrase appearing in s 4(1) of the Act, with the light cast upon the intended operation of the phrase by s 26 of the Act, it becomes clear that a wider definition of ‘development [p 230] standards’ is contemplated. Even one which (in offence to pure logic) envisages the carrying out of development where generally it is prohibited.”

While at first sight attractive, Kirby P’s call for greater flexibility in relation to development standards is at odds with a statutory scheme that explicitly provides for absolute prohibition, and seeks only to import flexibility other than in relation to those prohibitions.

¶29-090 Winten Property Group Limited v North Sydney Council In Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 (Winten), Lloyd J in the NSWLEC heard an appeal on a question of law from a decision of the Senior Commissioner of the Court in relation to a merit appeal against Council’s decision to refuse six DAs relating to land at Berrys Bay, Waverton. The applicable LEP contained a height limitation of a maximum of two storeys. An objection had been lodged under SEPP 1 in relation to compliance with this development standard, as well as other standards relating to the building height plane, and landscaped area requirements. In allowing the appeal against the Senior Commissioner’s decision to grant consent and uphold the SEPP 1 objections, Lloyd J held at paragraphs [23]–[28]: “23. Clause 6 of SEPP 1 provides that where a development could, but for any development standard be carried out, the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard ‘is unreasonable or unnecessary in the circumstances of the case and specifying the grounds of that objection’. 24. Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of the Policy, as set out in clause 3, it may (with the concurrence of the Director) grant consent to that development application notwithstanding the development standard the subject of the objection referred to in clause 6 (clause 7). The reference to the concurrence of the Director does not deprive the Court of

jurisdiction since section 39(6) of the Land and Environment Court Act enables the Court in an appeal to determine the appeal notwithstanding the absence of such concurrence. 25. The judgment of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) has been described as a classic statement of the approach to be taken when considering an objection under SEPP 1 (see, for example, the judgment of Talbot J in Memel Holdings Pty Limited v Pittwater Council (2000) 110 LGERA 217 at 220). In the Hooker Corporation case Cripps J said (at 6): ‘It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression ‘circumstances of the case’, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. … Furthermore it is now established that although the discretion conferred by SEPP No. 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.’

26. In applying the above-mentioned judgment, it seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case. 27. Memel Holdings Pty Limited v Pittwater City Council, to which I have referred was an appeal against a decision of the Senior Commissioner. Talbot J said (at 221): ‘The failure to identify the objectives of the development standard and then to consider whether, in the light of those objectives, it was unreasonable or unnecessary to apply the development standard in the subject case means that the Senior Commissioner fell into legal error on a matter which was fundamental to the ultimate decision.’ 28. It seems to me that the Senior Commissioner has in the present case fallen into the same error which he committed in Memel Holdings. I refer to the Senior Commissioner’s statement that ‘the development is seen as entirely acceptable as amended and should be supported by the relief available under State Environmental Planning Policy No. 1’. In this respect the Senior Commissioner has misdirected himself. His reference to ‘the development’ instead of to the non-compliance and to it being seen as entirely ‘acceptable’ without reference to the object or purpose of the standard or to the objects of the Act suggests that he has undertaken a merit assessment rather than assessment

under SEPP 1.” Lloyd J’s decision in Winten is largely a restatement of the principles decided in Hooker, but with one very significant addition. His outlining of the five questions to be considered in relation to a SEPP 1 objection conform with the decision in Hooker. Those five questions are: (1) Is the planning control a development standard? (2) What is the underlying purpose or object of the standard? (3) Is compliance with the development standard consistent with the aims of SEPP 1 and in particular does compliance with the development standard tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the EPA Act? (4) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (5) Is the objection well founded? However, Lloyd J noted that, in relation to question 4, “it seems to me that one must also look to see whether a development which complies with the development standard is unreasonable or unnecessary”. In support of this, Lloyd J states that this was noted by Cripps J in Hooker, although Hooker provides no such support. This expansion of question 4 proposed in Winten would significantly restrict the operation of SEPP 1. There clearly would be circumstances where a development complying with the development standard would be unreasonable or unnecessary, such as a requirement for a lot size of 100 hectares to erect a dwelling where the particular lot in question is 99 hectares, thus making it impossible to comply. But many successful SEPP 1 objections do not fall within such a category. Indeed, in many circumstances, a reduced return to the developer is a major effect of requiring compliance with the development standard (the subject of a SEPP 1 objection).

¶29-100 Design 23 Pty Limited v Sutherland Shire Council

When put to the test on this new restriction on SEPP 1 objections, Lloyd J appeared to resile from the issue. In Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90, Lloyd J heard an appeal on a question of law against a decision of a Commissioner to grant consent to a merit appeal in relation to a DA for housing for older persons or persons with a disability. In the appeal, Council sought a review of the Commissioner’s decision to uphold the SEPP 1 objections. Lloyd J held at paragraphs [20]–[21] and [29]–[32]: “20 Both parties agree that in considering the application of SEPP No. 1 to a development standard the following principles apply: it is not sufficient merely to point to an absence of environmental harm to found an objection; it is not to be used as a means to effect general planning changes; it is necessary to identify the objectives of the relevant development standard and then consider whether in the light of such objectives it is unreasonable or unnecessary to apply the standard; and it must be assumed that the development standard has a planning purpose (Hooker Corporation Pty Ltd v Hornsby Shire Council, NSWLEC, Cripps J, 2 June 1986, unreported, Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217). 21 The parties also agree that the application of SEPP No. 1 requires answers to the following questions: (i) is the planning control in question a development standard?; (ii) what is the underlying object or purpose of the standard?; (iii) is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act?; (iv) is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?; (v) is the objection well founded? (Winten Property Group v North Sydney Council [2001] NSWLEC 46 at [26]). Ms Duggan relies, in particular, on an alleged failure on the part of the Commissioner to answer the fourth question. Reliance is also placed on the following statement made in Winten: ‘In relation to the fourth question, it seems to me that one

must also look to see whether a development which complies with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case’. This is a reference to the following statement by Cripps J in Hooker Corporation (at 6): ‘To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case.’ Stating the question in the converse way is a good way of testing the answer to the question, but a failure to do so in that way does not amount to an error of law. … 29 As to the tests posed in Winten, it is not suggested that the Commissioner erred in failing to determine whether the controls in cl 13 of SEPP No. 5 are development standards. It seems to have been accepted by the parties that this was so. The Commissioner has identified the underlying object or purpose of the development standard. It is also clear that the Commissioner was of the view that compliance with the control was consistent with the aims of the Policy including the objects specified in s 5(a)(i) and (ii) of the EPA Act, as appears from the substance of his discussion in pars [138] to [150] of his decision. The real criticism advanced by Ms Duggan is said to be the Commissioner’s failure to consider and apply the fourth question identified in Winten: that is, a failure to see whether a development which complies with the development standard is unreasonable or unnecessary. 30 It is to be noted that, after referring to the objectives of the height control, the Commissioner states that such objectives ‘are not diminished by this small exceedence and in this case it is unnecessary and unreasonable to require compliance’. 31 The fourth question posed in Winten is: ‘is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?’ As noted above, in Winten the following statement also appears: ‘In relation to the fourth question, it seems to me that one must also look to see whether a development which complies with the development standard is

unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case’. As I have said, this is a reference to the statement by Cripps J in Hooker as follows: ‘To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case’. 32 In the present case the Commissioner did not pose the question of whether a development which complies with the development standard is unreasonable or unnecessary. If the question had been posed in that form and had then been expressly answered then there would have been no room for doubt that the fourth question in Winten had been considered, and it would have been better if the Commissioner had done so. In stating his finding in the converse way, however, the Commissioner did not fall into legal error. The Commissioner was simply stating the finding required by the fourth question in another way. To repeat, as Cripps J said in Hooker Corporation: ‘… it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case’. This is precisely what the Commissioner found. To adopt the language of Pearlman J in Martin & Spork in upholding a decision of the then Senior Commissioner: ‘the language used by the [Senior] Commissioner is cryptic, and there is no doubt that his reasoning could have been better articulated’. As long as the Commissioner’s reasoning and conclusions are disclosed, there is no error of law. I do not think that any error of law in the present case is demonstrated. The criticism of the Commissioner’s decision amounts to an impermissible ‘fine-tooth comb’ or pernickety approach, contrary to the authorities to which I have referred.” It is interesting to note that Lloyd J considered that this new test in Winten, instead of being sourced in Hooker (as he said in Winten), is merely the converse of the question posed in Hooker and cl 6 of SEPP 1, which is whether compliance with the standard is unnecessary or unreasonable in the circumstances of the case. However, it is a quite different test to that in the statutory provisions.

Hence, the additional test posed by Lloyd J in Winten must be regarded with some caution.

¶29-110 Wehbe v Pittwater Council The question of the meaning of “unreasonably or unnecessary” in the test in cl 6 of SEPP 1 that a person may make a DA “supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case” was considered by Preston CJ in the NSWLEC in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe). This case was a merit appeal against the refusal by Council of a DA to demolish a restaurant and kiosk and to subdivide land to create two allotments each of 514 square metres at Whale Beach. The subject land was zoned Residential 2(a) under the Pittwater LEP 1993. Clause 11 provided a development standard in relation to minimum lot sizes as follows: “(1) The aim of this clause is to create more varied allotment sizes, improve residential amenity and enhance the environment in relation to land to which this clause applies. (2) A person shall not subdivide land in Zone No 2(a) or 2(b) generally north of Mona Vale Road, Mona Vale and east of Chiltern Road, Ingleside, unless each allotment to be created by the subdivision will have an area of not less than 700 square metres within Zone No 2(a) or 2(b), exclusive of any access corridor.” The DA was accompanied by an objection under SEPP 1 to the application of the development standard. Preston CJ outlined the requirements to uphold a SEPP 1 objection at paragraphs [37]–[41] as follows: “37 The Court exercising the functions of the consent authority, must be satisfied of three matters before it can uphold the SEPP 1 objection and grant development consent to a development application for development that could, but for a development standard, be carried out under the Act with or without

development consent. 38 First, the Court must be satisfied that ‘the objection is well founded’ (clause 7 of SEPP 1). The objection is to be in writing, be an objection ‘that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case’, and specify ‘the grounds of that objection’ (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that ‘granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3’ (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 ‘and is also’). The aims and objects of SEPP 1 set out in clause 3 are to provide ‘flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act’. The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: ‘(1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (2) the promotion and coordination of the orderly and economic use of developed land.’ 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fast buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney

City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: ‘(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument’. 41 Although the Court has power to uphold a SEPP 1 objection without the concurrence of the Director-General by reason of s 39(6) of the Land and Environment Court Act 1979, the matters in clause 8(a) and (b) are still relevant when the Court is considering exercising its power: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100.” Preston CJ then considered the various ways of establishing that compliance with a development standard is unreasonable or unnecessary at paragraphs [42]–[52] as follows: “Ways of establishing that compliance is unreasonable or unnecessary. 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding noncompliance with the standard: see SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 379; Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, pp 16, 18 and 20; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 406–407, 412– 413; Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGRA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of

Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382 at 386; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282–283; Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 220–221; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 88[25]– 89[28] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387 [20]–[21]. 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). 44 However, although this way is commonly invoked, it is not the only way to establish that compliance with a development standard is unreasonable or unnecessary: North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13 November 1986, Stein J at p 5; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282–283. Other ways are explained in the authorities. 45 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary: SCMP Properties Pty Limited v North Sydney Municipal Council (1983) 130 LGERA 351 at 378–379; North Sydney Municipal Council v Parlby, unreported, LEC No 10613 of 1985, 13

November 1986, Stein J at p 5. 46 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable: Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J at p 18. 47 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable: North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11–12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 202; City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 282 [69]–283 [70]. 48 A fifth way is to establish that ‘the zoning of particular land’ was ‘unreasonable or inappropriate’ so that ‘a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land’ and that ‘compliance with the standard in that case would also be unreasonable or unnecessary’: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 97. 49 However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focused on ‘particular land’ and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather because the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require

compliance with the standard in these circumstances would be unreasonable or unnecessary. 50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10–11. 51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council, unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby, unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council, unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11–12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201–202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113]. 52 The requirement that the consent authority form the

opinion that granting consent to the development application is consistent with the aims of SEPP 1 as set out in clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land) makes it relevant ‘to consider whether consent to the particular development application encourages what may be summarised as considered and planned development’ or conversely may hinder a strategic approach to planning and development: Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 [26]–[27], 101 [30]–[31], [35].” In applying these principles Preston CJ held that he was not satisfied that the SEPP 1 objection was well founded. Preston CJ held that, in this instance, the aims in cl 11(1) of the LEP were descriptive of the result the clause achieves by adherence to the development standard itself. Moreover Preston CJ held at paragraphs [75]–[76]: “75 Thirdly, it is not sufficient merely to point to an absence of environmental harm: see Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411–412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89; and Memel Holdings Pty Ltd v Pittwater Council [2001] NSWLEC 240 (17 October 2001) at [102]. 76 In relation to each of the three stated aims in clause 11, nowhere does the original SEPP 1 objection assert that development that complies with the development standard would be unreasonable or unnecessary. Such a consideration is relevant in determining whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case: see Gergely and Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 411–412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441–442; Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at 89 [26] and Design 23 Pty Ltd v Sutherland Shire Council (2003) 125 LGERA 380 at 387.” Preston CJ noted that to uphold a SEPP 1 objection, three matters

must be concluded by the Court: (1) It must be satisfied that the objection is well founded, with the onus on the applicant to satisfy the consent authority that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. (2) It must be of the opinion that granting consent to the DA must be consistent with the aims of SEPP 1 for flexibility in the application of development standards, where strict compliance in the particular circumstances of the DA would be unreasonable or unnecessary, or tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the EPA Act. (3) It must be satisfied of the matters in cl 8(a) and (b) of SEPP 1 regarding: • whether non-compliance raises any matter of State or regional environmental planning significance, and • the public benefit of maintaining the planning controls in the LEP. Preston CJ then outlined the range of ways whereby it could be established that compliance is unreasonable or unnecessary, as follows: (1) The objectives of the development standard are achieved notwithstanding non-compliance with the standard. Under this approach, development standards are viewed not as the planning objectives but as a means to achieve those objectives. If there is an alternative means to achieve the objective, then the objective would be achieved anyway (and hence, compliance with the standard is unnecessary) and there is no purpose served by requiring compliance with the standard (and hence, compliance would be unreasonable). This tends to be the most common way of establishing that compliance is unreasonable or unnecessary. (2) To establish that the underlying objective or purpose of the

standard is not relevant to the development and hence, compliance with the standard is unnecessary. (3) To establish that the underlying objective or purpose of the standard would be defeated if compliance was required and hence, compliance with the standard is unreasonable. (4) To establish that the development standard has been virtually abandoned or destroyed by Council’s own decisions departing from the standard and hence, compliance with the standard is unnecessary or unreasonable. (5) To establish that the zoning of the particular land was an anomaly or inappropriate, and as a result the development standard applying to that zoning is also an anomaly or inappropriate and hence, compliance with the standard is unnecessary or unreasonable. Preston CJ correctly notes that great care needs to be exercised not to expand the fifth way of establishing that compliance is unreasonable or unnecessary. He noted that this way does not suggest an objection would be well-founded by an opinion that the development standard is not appropriate for the particular zoning, but rather, that the particular land should not have been included in that zoning. Such an approach is dangerously close to usurping the processes for plan making in Pt 3 of the EPA Act and needs to be treated with great caution. Similarly, caution needs to be exercised in relation to the fourth way suggested by Preston CJ of establishing that compliance is unreasonable or unnecessary as it suggests that a succession of planning mistakes should be perpetuated, although there is clearly a need for fine balance faced with such circumstances. Interestingly, Preston CJ also endorses the expression of the tests in Hooker as proposed by Lloyd J in Winten (discussed earlier). Preston CJ also repeats that absence of environmental harm is not a test in upholding a SEPP 1 objection.

¶29-120 Strathfield Municipal Council v Poynting

In Strathfield Municipal Council v Poynting [2001] NSWCA 270 (Poynting), the NSW Court of Appeal dealt with an appeal from the NSWLEC on questions of law arising from the determination of a merit appeal in respect of a DA for subdivision of land at Strathfield into two lots. The rear block would have become a “battle-axe” block, accessed from the road by a right of way over the other lot. In the applicable EPI, the Strathfield Planning Scheme Ordinance, cl 41 provided for minimum lot sizes as follows: “41. (1) The council shall not grant consent to the subdivision of land within Zone No 2(a) or 2(b) which creates allotments intended to be used for the erection of single dwellings, attached or detached dual occupancies, or multiple-unit housing, unless each proposed allotment has an area of not less than 560 square metres and a width at the front building line of not less than 15 metres. (2) A single dwelling, attached dual occupancy, detached dual occupancy or multiple-unit housing must not be erected on an allotment of land within Zone No 2(a) or 2(b) which has an area of less than 560 square metres or a width at the front building line of less than 15 metres. (3) For the purposes of subclause (1) and (2), the area of a battleaxe shaped allotment shall not include the area of the access corridor. (4) Nothing in this clause shall operate to prohibit the erection of a single dwelling in Zone No 2(a) or 2(b) on an allotment of land that was in existence as a separate allotment of land on the appointed day (21 February 1969).” The question was whether cl 41(2) constituted a development standard or a prohibition. Council contended it was a prohibition. Council contended that cl 41(4) provided some relief from the prohibiting effects of cl 41(2) and its presence suggested that cl 41(2) was not a development standard. At first instance, Bignold J found cl 41(2) was a development standard. In the NSW Court of Appeal, the principal judgment was delivered by Giles JA (with whom Heydon JA agreed and Young CJ in Eq agreed, but added some additional

comments). Giles JA noted that a development standard is something imposed to control development and that “control” is defined in s 4(1) of the EPA Act as encompassing a power to prohibit (paragraphs [30]–[31]). He noted that not all provisions controlling development in an EPI are development standards, as is made clear in s 26(1)(b) and the definition of “development standard” in the EPA Act. Giles JA noted that following Mayoh “… in determining whether the definition is satisfied, a distinction between a provision prohibiting carrying out development and a provision stating requirements or standards for carrying out permitted development” (paragraph [49]) is required. Note: these extra words are not part of the quote. Giles JA noted at paragraph [50]: “50 The cases deciding whether or not a particular provision is a development standard are legion. In Fencott Drive Pty Ltd v Lake Macquarie City Council Bignold J said (at 330) that many of them resorted to ‘the dichotomy of ‘prohibition v regulation’ ’, and that there were ‘overwhelming inherent limitations both in the validity and utility of doing so’: see later in these reasons. His Honour meant the distinction endorsed in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2), which he described (at 333) as ‘the high water mark of the influence of the dichotomy’.” The respondent argued firstly that a provision imposing a prohibition can be a development standard and that the dichotomy between a prohibition or regulation only arises where the prohibition is outside one of the matters listed in paragraphs (a) to (n) in the definition of development standard. Giles JA described this argument as novel, but one which was unsound, as it did not take account of the prefatory words of the definition that a development standard must be a provision “by or under which requirements are fixed in respect of any aspect of that development.” The Council argued that there are two types of provisions: (1) One kind of provision is in the form “On land of characteristic X development may be carried out in a particular way to a particular extent”. These kind of provisions have been held to the development standards.

(2) Another kind of provision is in the form “On land of characteristic X no development may be carried out”. These kind of provisions have been held to be a prohibition. Giles JA held at paragraphs [93]–[103] as follows: “93 I do not think it profitable to go to further decided cases, which will only reveal how a provision has been categorised in the interpretation of the particular environmental planning instrument. It is evident that a process of construction to find regulation on the one hand or prohibition on the other hand will bring finely divided decisions. Care must be taken lest form govern rather than substance. A provision in the form, ‘A building may be erected on land in a particular zone if the land has an area greater than a particular area’ appears regulatory, whereas a provision in the form, ‘A building must not be erected on land if the land has an area less than a particular area’ appears prohibitory, but the substance is the same. 94 As was done in, for example, Fencott Drive Pty Ltd v Lake Macquarie City Council, the provision must be seen as part of the environmental planning instrument as a whole. Regulation or prohibition may depend on the governing characteristic perceived in the provision. In the second form of provision just set out, if the characteristic is land in the particular zone the area requirement may be seen as stating a permissible way or extent of development, but if the characteristic is land with the particular area no development may be carried out. I do not find the socalled dichotomy, or its expression in the two different kinds of provision, either clear or providing ready answers. 95 There must be found a distinction between a provision which is a development standard and a provision which controls development in some other way, and the guidance of the dichotomy in providing a conceptual basis for the distinction must be acknowledged. But neither the dichotomy itself nor its expression in the two different kinds of provision can replace the definition in the Act.

96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of ‘development’ in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour’s reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of ‘development standards’, there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave

room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of ‘development standards’ in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA’s comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed — siting of the building (Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council), number of storeys of the building (Scott Revay & Unn v Warringah Council), minimum subdivisible area (Bell v Shellharbour Municipal Council). Clause 41(2) at last 100 The development in question in the present case is, or at least on the basis on which the separate questions were put

forward must be taken to have been, the erection of a building on the Residential 2(a) land for the purpose of a single dwelling, an attached dual occupancy, detached dual occupancies or multipleunit housing. 101 So far as cl 41(2) is concerned with multiple-unit housing, the effect of cl 22(b)(ii) is that a building may not be erected on Residential 2(a) land for that purpose at all. There is no development in respect of an aspect of which it specifies a requirement or fixes a standard, and to that extent cl 41(2) is not a development standard. 102 So far as cl 41(2) is concerned with a single dwelling or with the dual occupancies, erection of a building on Residential 2(a) land for those purposes is generally permissible with consent (cl 22(b)(ii)). Clause 41(2) then provides that consent shall not be given unless the land has an area not less than 560 square metres. Reading the provision as part of the Ordinance as a whole, this is not a prohibition on the erection of a building for the stated purposes on Residential 2(a) land in any circumstances. It is prohibitory so far as it precludes development in particular cases, but not prohibitory of development by erection of a building for the stated purposes on Residential 2(a) land. The development is permissible in the circumstances (negatively) expressed in cl 41(2). 103 Does cl 41(2) specify a requirement or fix a standard in respect of an aspect of the development? In my opinion it does. On one view the area of the land on which the building is to be erected is not an aspect of the development. The size, height, distance from boundaries and so on of the building are aspects of the development, but it matters not to the development whether the building is to be erected on a small or large parcel of land. On a wider view, the aspects of the development include the size of the parcel on which the building is to be erected, and both independently and because para (a) of the definition of ‘development standards’ includes area and dimensions of land I consider that to be correct. The opinion expressed in Bell v Shellharbour Municipal Council, although on a different worded

provision and not elaborated, is consistent with this.” Young CJ in Eq while agreeing with Giles JA added some comments, including the following at paragraphs [123]–[126] and [133]: “123 Thus, the task of the Court, as Mahoney JA said in Mayoh at p 233, is to discern the intention of the instrument, which is to be derived from the words which have been used and the meaning of them in their context. 124 That task is not an easy one as appears from the number of times in which there has been a reported dispute. The difficulty has been exacerbated by what Meagher JA described in Egan v Hawkesbury CC (1993) 79 LGERA 321, 330 as instruments ‘drafted in specialised bureaucratic jargon to whose authors neither logic nor clarity has urgent attention.’ Obscure drafting is, of course, not the only reason for long and expensive process in this area of the law, but it is certainly a factor in the overall problems. Of course, drafting of such instruments is a difficult matter since, as Giles JA points out, mere form of drafting will not necessarily disclose whether a provision is a development standard. 125 The analysis of Giles JA sets out the true and workable approach to these problems. 126 The dichotomy between a development standard and an absolute prohibition provides a valuable guideline as long as it is remembered that a development standard may contain expressly or impliedly some sort of prohibition. However the sort of prohibition involved is a prohibition on the extent of development, not a prohibition as to whether development is possible at all. … 133 Finally, I might be permitted to note my concern, not only in this appeal, but also in others that the environment law is getting far too technical and expensive. The arguments presented are often chocked full of sophistry. This is quite against the public interest. Councils should be able to use their scarce resources on roads and services rather than on administration and legal fees.

Members of the public seeking to protect the environment through the courts are also entitled to a speedy and cheap resolution on the merits. People should be able to improve our society by development without having to face unexpected delays and bills for legal costs and holding charges while the stately saraband of the law takes its course.” Conclusions The following conclusions may be derived from the NSW Court of Appeal decision in Poynting: • In deciding whether a particular clause of an EPI is a prohibition or a development standard, care must be taken to ensure that form does not govern substance. You must look at the substantive effect of a provision and not the form in which it has been drafted. • To establish whether a provision in an EPI is a development standard, there are two steps: (1) The first step requires that there is a development at all. A provision which prohibits the development in question under any circumstances will not be available. Anything less than a complete prohibition means that there can be a development in question. (2) The second step is whether the provision specifies a requirement or fixes a standard in relation to an aspect of the non-prohibited development. It is necessary to identify a relevant aspect of the development in paragraphs (a) to (n) of the definition of “development standard”. However, the two-step process outlined in Poynting does not greatly assist in discerning the difference between a prohibition and a development standard.

¶29-130 Lowy v The Land and Environment Court of NSW & Ors

In Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353 (Lowy), the NSW Court of Appeal considered whether the foreshore building line (FBL) control in the Woollahra LEP constituted a development standard. The relevant provision in the LEP was as follows: “22. Foreshore Building Lines (1) … (2) Except in accordance with a development consent referred to in subclause (4), a building shall not be erected between a foreshore building line referred to in subclause (1) (a) and the mean high water mark of the waters of Port Jackson. (3) In the case of a foreshore building line referred to in subclause (4), a building shall not be erected between that building line and the mean high water mark of the waters of Port Jackson. (4) The Council may, after having made an assessment of the probable aesthetic appearance in relation to the foreshore of the proposed structure, consent to the erection of any of the following structures between a foreshore building line and the waters of Port Jackson. (a) baths (swimming pools) and ancillary buildings, (b) boat sheds, (c) wharves, (d) jetties, (e) structures or works below or at the surface of the ground. (5) The Council may, by resolution, alter or abolish any foreshore building line to the extent that it affects a site if the levels, depth or other exceptional features of the site make it

expedient to do so.” The case involved a DA by Mr Paino to extend the existing balcony on an existing dwelling by Mr Paino in Wolsely Road, Point Piper. The FBL covered part of the subject land and the proposed balcony extension was wholly within the FBL. The neighbouring landowner, Mr Lowy, objected to the balcony extension and submitted that the FBL constituted a prohibition rather than a development standard. Giles JA (with whom Mason P agreed, with Handley JA in dissent) cited his reasoning in Poynting with his suggested two-step approach. Giles JA held at paragraph [116] as follows: “116 … It has been said many times that whether a provision is a development standard depends on the particular provision seen as part of the planning instrument as a whole. Rather than be caught up in a raft of decisions on their own facts and fine distinctions, I consider it better to address the LEP by regard to principle and its own structure and provisions.” At paragraph [117], Giles JA cited his conclusions in Poynting and then continued from paragraphs [118]–[125]: “118 I go to the first step in the present case. The development is the erection of a building for the purpose of a dwelling house. Is it prohibited under any circumstances? 119 Clause 8 of the LEP states development control tables, establishing zones applying to land and identifying for each zone development which is prohibited, may be carried out only with consent, or may be carried out without consent. 106 Wolseley Road is within zone 2(a), as to which development for the purpose of dwelling houses may be carried out only with consent: other kinds of development either are prohibited or may be carried out without consent. 120 Clause 8(4) provides that the development control table for each zone ‘must be read subject to the special provisions and heritage provisions in Parts 3 and 4 of this plan, respectively’, and that in the event of an inconsistency between a provision of a development control table relating to a zone and a special

provision or a heritage provision ‘the special provision or heritage provision shall prevail’. Paragraph 7 within the development control table for zone 2(a) states that Parts 3 and 4 to the LEP ‘must be read in conjunction with this development control table as they also affect the nature of development which can be carried out’. Clauses 22AA and 22 are within Part 3 of the LEP. 121 Part 3 of the LEP is headed ‘Additional provisions for the development of land’. It contains many disparate provisions, apart from cll 22AA and 22. They concern the need for consent to subdivision of land; allotment sizes for dwelling houses; site area and site frontage requirements; floor space ratio requirements; building height requirements; community use of facilities and sites with consent; acquisition and development of land reserved for roads; acquisition of land reserved for open space; how excavation of land is to be carried out; development in the harbour foreshore scenic protection area; development of land adjoining public open space; water and sewerage services requirements; classification and reclassification of public land as operational land; and identification of exempt and complying development. They also make particular provision with respect to development of identified parcels of land. Some of the provisions describe their requirements as ‘standards’ (site area and frontage standards, floor space ratio standards), and the maximum building height requirements are described as ‘development standards’. As has been seen, cl 22AA refers to ‘foreshore building line standards’. 122 Considering these provisions as a whole, I do not think that the effect of cl 8(4) and para 7 in the development control table for zone 2(a) is that the special provisions in Part 3 of the LEP should be seen as prohibitory of development permitted in accordance with the development control table. Rather, the special provisions deal with associated requirements material to the permitted development and regulate the carrying out of the permitted development. Development of 106 Wolseley Road by the erection of a building for the purpose of a dwelling house is a permitted development, even though carrying out the

development may be subject to the special provisions. 123 I have described this as development of 106 Wolseley Road. In the identification of the development. I do not accept Mr Lowy’s submission that, when considering whether a development is prohibited, the relevant land is confined to that the subject of the provision the categorisation of which is in question, here the land on the foreshore side of the foreshore building line. If the land be confined in that way, of necessity there is a prohibition (save that even then consent may be granted in the circumstances in cl 22(4) and (5)). The LEP is a planning instrument. It primarily addresses land in zones, with prohibited or permitted kinds of development. The development is by reference to the land in the zone, here 106 Wolseley Road. 124 Going to the second step, cl 22(2) specifies a requirement in respect of an aspect of the permitted development of 106 Wolseley Road. The development is permitted, but by cl 22(2) is subject to location or siting of the building (the extension of the terrace) on the land within the zone: it can not be placed on the foreshore side of the foreshore building line. This is an aspect of the development, see para (c) of the definition of ‘development standards’ in s 4 of the EPA Act. 125 Accordingly, in my view cl 22(2) is relevantly a development standard amenable to dispensation pursuant to SEPP 1, and Lloyd J correctly so held.” Thus, the majority of the NSW Court of Appeal in Lowy held that, in examining the first step as provided in Poynting, the relevant land to be considered is the entire property that presumably was the subject of the DA. The basis of the dissenting judgment of Handley JA did not lie in any difference of approach to that outlined in Poynting. Rather, it lay in whether the focus of attention should be the whole of the developer’s land or simply the land within the FBL. Handley JA initially referred to Cripps J in Quinn O’Hanlon Architects Pty Limited v Leichhardt Municipal Council (1989) 68 LGRA 114 at paragraphs [56]–[58] and [64]–[65]:

“56 It will be seen that his Honour focussed on the whole of the developer’s land and not just the land within the FBL. He first distinguished Kruf v Warringah Shire Council (15 September 1988, Holland J unrep) (Kruf), saying (119) that the prohibition in that case applied to the whole of the land but concluded that the case was wrongly decided (119–120). 57 In Mayoh Mahoney JA did not refer to Kruf or Quinn O’Hanlon but Clarke JA referred to both. He approved the decision in Kruf ((1990) 71 LGRA at 236, 238) but said that in his tentative view Quinn O’Hanlon was correctly decided although the point had not been fully argued (238). 58 In my view cl 22 of the Plan and the relevant FBL, in the language of Stein J in Napper v Shoalhaven Shire Council (12 February 1988 unrep), ‘served a zoning function’. They created what is in substance a special foreshore protection zone with its own regime of controls overlaid on the development control tables for the various zones within the foreshore protection area. There is no requirement for zoning control to follow title boundaries and it is common for a parcel of land in the one ownership to include areas within different zones. Development prohibited by the zoning table for land within one of those zones is not brought within SEPP 1 merely because it is permissible under the zoning table applicable to adjoining land in the same ownership. … 64 In my judgment the correct question in this case is whether cl 22 in its application to land within the FBL is a development standard. It is not whether it is a development standard in relation to land outside the FBL, or land partly within the FBL and partly outside it. The question is not to be answered by reference to the development control table for the zone, because this is subject to cl 22 (pars 23, 24). Moreover s 76B in explicit terms requires the Court to focus on the land which is the subject of the prohibition (par 21). 65 When one considers cl 22 in relation to the land which is directly affected there can only be one possible answer. Although

the proposed development involves an addition to an existing building it is itself a building for the purposes of the Act. The whole of the proposed development is to take place within the FBL and no part of it is permissible.” As Handley JA noted, by changing the description of the land which is the point of reference to establishing the first step in accordance with Poynting, the conclusion as to whether a provision is a prohibition may alter. This leads to a potentially anomalous outcome that the same provision may be a prohibition in some circumstances and a development standard in other circumstances, an outcome at odds with the definition of development standard, unless the words “carrying out of development” in the definition mean the carrying out not of development generally, but a particular development.

¶29-140 Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd In Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323 (Chase), the NSW Court of Appeal heard an appeal on questions of law arising from a decision of the NSWLEC to grant development consent for a tourist and residential development at Blackheath in the Blue Mountains. One of the issues raised in the proceedings was whether cl 10.8(e) of the Blue Mountains LEP 1991 was a development standard or prohibition. This clause provided: “(e) The Council shall not consent to the subdivision of land to create additional lots or to the carrying out of development the Council considers is significant in the Residential Bushland Conservation zone unless— (i) each of the lots to be created which will require effluent disposal or the site on which the development will be carried out is to be serviced by a reticulated sewerage system; and (ii) the Water Board [now Sydney Water] has previously

provided certification to the Council that the sewerage treatment plant serving the area concerned has the capacity to accommodate the additional development.” Tobias JA (with whom Giles JA and McClellan CJ at CL agreed) cited at paragraphs [60]–[61] with approval the summary of relevant principles in Poynting by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at paragraphs [26]–[31]. Tobias JA held at paragraphs [60]–[61]: “60 The first appellant referred to the distillation of the relevant principles by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 at [26]–[31] which her Honour had derived from Poynting, Lowy and Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and which she recently reiterated in McCabe v Blue Mountains City Council (2006) 145 LGERA 86 at 101–2. 61 It is convenient to set out the following propositions adopted by her Honour as I regard them as accurately summarising the principles articulated by Giles JA in Poynting: ‘(1) The provision in question must be ‘seen as part of the environmental planning instrument as a whole’ (Poynting at 342 [94]). The ‘wider context’ of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182–183 [2] per Mason P). (2) If a provision falls within one of the matters in subparagraphs (a) to (o) of the definition of ‘development standard’, that fact alone does not mean that the provision is thereby a development standard. The provision must be ‘in relation to the carrying out of development’ and must fix requirements or standards in respect of an aspect of the development (Poynting at 333–334 [58]). (3) Although we must distinguish between a provision that is a development standard and a provision controlling

development in some other way, the dichotomy between ‘regulation’ and ‘prohibition’ cannot replace the definition in the EPA Act. As this conceptual division ‘will bring finely divided decisions’, ‘care must be taken lest form govern rather than substance’ (Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then ‘in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development’. Hence: ‘Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard.’ (Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 269–270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of ‘development standard’ is that the ‘requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development’ (Carr at 269–270 per McHugh JA). (8) Hence, the key consideration in any debate over this

second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paragraphs (a) to (n) of the definition of ‘development standard’ shows that ‘a broad view of what is an aspect of a development should be taken’ (Poynting at 343 [99]).’ ” Tobias JA analysed cl 10.8(e) and held it was a development standard. McClelland CJ at CL provided additional comment at paragraphs [212]–[216]: “212 This is yet another case in which this Court and the LEC have been required to consider whether a provision in a local environmental plan (LEP) is a ‘development standard.’ As Tobias JA makes plain in his reasons for judgment the task of construing a particular provision in an LEP can be difficult. The history of judicial decisions over many years demonstrates that properly informed minds may legitimately reach different conclusions about whether a particular provision is a development standard. There has been and will continue to be very significant burdens on public funds and costs to private individuals and corporations from this type of litigation unless steps are taken to alter the situation. 213 It is instructive to reflect on the purpose for which SEPP 1 was made. The intention was to allow for development to take place which was environmentally appropriate notwithstanding that it did not comply with a numerical requirement or other provision of an LEP which controlled development on that site. Experience had shown that the constraints which at the time a local plan was made were thought to be generally appropriate may not be necessary or reasonable in a particular case. The limitation of only minor departures from an applicable numerical standard which was commonly allowed when development was controlled by the Local Government Act 1919 (the 1919 Act) was also

believed to be unnecessarily rigid. Accordingly, a power of general dispensation was provided — see Legal & General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201. It is now apparent that the complexity of particular provisions in LEP’s and the difficulty in determining whether they are a development standard, has meant that the benefit of flexibility which SEPP 1 was intended to provide has been eroded in many cases by the monies and time wasted in litigation. A change is long overdue. 214 There are a number of approaches which could be taken to deal with the problem. Although I understand that efforts are being made to bring consistency of expression to similar provisions in different LEP’s, the reality is that, although desirable, a return to the uniform approach originally taken to provisions in Planning Scheme Ordinances made under the old Pt 41A [sic. Presumably this should read “12A”] of the 1919 Act may not be entirely possible. An alternative solution needs to be found. 215 Section 36(2) of the EPA Act relevantly provides that a SEPP prevails over an LEP whether made before or after the LEP to the extent of any inconsistency, if the SEPP expressly so provides. SEPP1 so provides: see cl 5. The relevant inconsistency is between the obligation imposed by the LEP that development consent cannot be granted unless there is compliance with a provision which is a development standard and the power in cl 7 of SEPP1 to grant such a consent notwithstanding noncompliance with that standard. 216 The effect of s 36(4) of the EPA Act is to enable SEPP1 to be amended by a later LEP to provide for a way in which that inconsistency is to be resolved. Accordingly, one method of avoiding the problem would be to amend existing LEPs and to insert into new LEPs a provision which amends SEPP1 to provide that its provisions are not to apply to identified clauses of the LEP which are development standards. Those clauses would be those which the Minister does not, as a matter of policy, wish to be made subject to an objection under SEPP1 in respect of their non-compliance.”

In relation to this issue, Tobias JA held at paragraph [92] as follows: “92 … However, I would take the opportunity to wholeheartedly endorse the remarks of McClellan CJ at CL in [212] of his judgment which I have had the benefit of reading in draft with respect to the unnecessary and time consuming litigation that had been generated over many years concerning whether a provision of a local environmental plan is a development standard. The responsible authorities should carefully consider the solution proffered by his Honour.” The suggestions of McClellan CJ at CL had in fact been utilised a decade previously, long before his judgment in Chase, for example in Central Sydney LEP 1996 (made on 20 December 1996) where SEPP 1 was declared not to apply to the sun access planes (cl 30) and the overshadowing requirements (cl 31). There are of course many possible options to address what the decision in Chase highlights as an unsatisfactory position with the identification of what are development standards and what are prohibitions. Some of these options include: • more standardised LEP provisions, such as are now provided with LEPs prepared using the Standard Instrument • explicitly providing in LEP provisions where SEPP 1, or similar dispensatory provisions, do not apply, and • relaxing the extent to which an LEP can prohibit development, either wholly, or in a more limited way, such as in the example in cl 12 of the Bankstown LEP 2001 (discussed in Chapter ¶20). The approach to SEPP 1 outlined by the NSW Court of Appeal in Poynting lasted barely four days before the Court had second thoughts. Tobias JA gave the leading judgment in the NSW Court of Appeal in Chase, a decision delivered on 23 November 2008, in which he and the rest of the Court followed Poynting. Yet four days later, the Court gave judgment in Blue Mountains City Council v Laurence Browning

Pty Ltd [2006] NSWCA 331 (Laurence Browning), in which the majority of the Court unceremoniously, and in the case of Ipp JA, derisorily, dumped Poynting.

¶29-150 Blue Mountains City Council v Laurence Browning Pty Ltd Laurence Browning dealt with an appeal arising from a DA for the consolidation of a 1914 subdivision at Wentworth Falls in the Blue Mountains of 84 lots into 14 new lots and the erection of a dwelling house on each of the newly created lots. The Blue Mountains LEP 1991 zoned the subject land Bushland Conservation within which the zoning map and cl 8 provided for what were described as six “zone subscripts”. Clause 29.2 of the LEP provided as follows: “29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.” The subject land was entirely within the area enclosed by the heavy black line. The DA did not comply with this consolidation requirement, in relation to which a SEPP 1 objection was lodged. The issue in the proceedings was whether cl 29.2 was a development standard. At first instance, Jagot J in the NSWLEC held it was a development standard. The NSW Court of Appeal held it was not a development standard.

Basten JA held at paragraphs [74]–[82] and [85]: “74 More than 25 years after its introduction, the concept of ‘development standards’, as defined in s 4(1) of the EPA Act, continues to produce conflicting views, not only as to the proper outcome in a particular situation, but also as to the appropriate articulation of the principles to be applied. The significant expenditure of public and private resources, without settled principles emerging, seems unfortunate. In North Sydney Municipal Council v P D Mayoh Pty Ltd [No. 2] (1990) 71 LGRA 222 at 224, Kirby P pronounced that ‘[i]nflexible administrative law is a bane of the age’. It appears that his Honour was referring to inflexible rules governing administrative decision-making. That is supposedly because such rules will not allow for the variability of circumstances to which they must be applied. On the other hand, clear, if rigid, principles can provide greater certainty, and minimise litigation. If a person purchases particular land, knowing it is only capable of specified developments in specified circumstances, no great injustice is done by an application of those restrictions. In any event, there is no great merit in the application of ‘flexible standards’ when their operation is itself manifestly uncertain. 75 The list of matters which may constitute development standards, contained in paragraphs (a)–(n) of the definition provides a helpful indication of the scope of the concept being defined, but they are expressly stated not to be limiting, nor are they determinative in relation to a particular form of regulation: see Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at [56]–[58], [99] and [103] (Giles JA, Heydon JA agreeing). A second proposition which flows from the language of the definition, taken as a whole, is that the use of the word ‘standards’ should not be given too much weight. Thus the defined term applies to provisions of an environmental planning instrument by which ‘requirements are specified or standards are fixed’. Again, that language provides an indication of the breadth of the concept, but is unlikely to be determinative in relation to the classification of particular provisions.

76 A third aspect of the definition may carry more weight. Thus it applies to provisions ‘in relation to the carrying out of development’, a concept which has been said to be inconsistent with a provision which prohibits development. However, as will be seen, there is little land on which no development of any kind can take place and accordingly a provision which prohibits some, even many, forms of development may be said to constitute a standard or requirement, if the particular development is identified in sufficiently imprecise terms. 77 The language of the definition which provides the surest foundation for distinguishing development standards from other provisions is found in the requirement that they be ‘in respect of any aspect of that development’. Two important elements of the definition can be derived from that language, albeit read within its statutory context. First, the words ‘in respect of’ indicate a nexus or connection between, on the one hand, the requirement or standard and, on the other hand, the development. As explained by McHugh JA in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 269–270, such language not only must be premised on that dichotomy, but also, and importantly, requires the development and its aspects to be defined, before the test can be applied: see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at, eg, 242 (Dawson J). Thus a prohibition on a particular kind of development will not be a development standard if the characteristic or criterion engaging its operation is an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development: see Lowy v Land and Environment Court (NSW) (2002) 123 LGERA 179 at [36] (Handley JA). … 78 In other cases, statements are to be found as to the importance of preferring substance to form. However, those statements should be read in their context, which is usually concerned with the difficulty in distinguishing conditional prohibition from regulation. … 79 This concern rests on attempts to distinguish a prohibition from regulation. However, in the abstract, that distinction is unhelpful in

this, as in many other contexts, as recognised by Handley JA in Lowy at [32]–[33]. On the other hand, a particular result may be achieved in different ways and, for relevant legal purposes, the means adopted may be important. Thus, in the present context, it was not suggested that the principles espoused by McHugh JA in Carr were wrong, no doubt because they have been widely affirmed: see, eg, Poynting at [97] (Giles JA). Furthermore, those principles appear to underlie the broadly accepted distinction, not challenged by the parties in the present proceedings, that a zoning requirement was not a development standard: see Lowy at [58] and [62] where the term ‘a zoning function’ was used by Handley JA. Thus, if an LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. Self-evidently, the drafter of an LEP may be able to achieve the desired result either by a zoning provision, or by a development standard: the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition. A legitimate concern about substance and form should not be allowed to blur the distinction between result and means. 80 The approach required by the definition, so understood, places considerable weight on the degree of specificity with which the proposed development is defined. If the proposed development is very broadly defined, even its essential elements will become external standards. On the other hand, to include within the identification of the proposed development all aspects of the proposed use of the land is likely to incorporate what should properly be seen as aspects regulated by development standards, because external to the essential elements of the development. The correct approach depends on the terms of the planning instrument in the particular case. Thus, if an LEP distinguishes by zoning between residential flats and dwelling houses, an application to erect a block of flats should not be

treated simply as an application to erect a building, or an essential distinction between a dwelling house and a block of flats will be obscured. The reason why that distinction is important (on the present hypothesis) is that the relevant LEP distinguishes between a dwelling house and residential flats for zoning purposes. 81 The appropriate course is said to depend on what are the essential elements of a development. The use of the (nonstatutory) phrase ‘essential element’ seems to have gained acceptance as a reflection of the principle set out above: see Poynting at [36] (Giles JA). So understood, it is a convenient label. It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. That proposition was expressly accepted by the majority in Lowy: see Mason P at [2] and by Giles JA at [123]. 82 Before applying these principles to the present case, it is necessary to note a final aspect of the approach which has found favour in this area, namely that it be undertaken in two steps. As will be seen, the adoption of a staged approach was critical to the reasoning in the Court below. … … 85 There are two aspects of this approach which cause difficulty, at least in the present circumstances. First, there appear to be two categories of provisions controlling development, namely a prohibition on the development proposed and a standard or requirement controlling the carrying out of the development. If a control falls into the former category, it will not be a development

standard: if it falls into the latter category it will be. The cases do not demonstrate the existence of a third category: if a provision does not fall within one category, it will fall within the other. Accordingly, the idea of a two stage process seems inappropriate. Secondly, it is curious that Carr’s case is invoked at the ‘second step’, rather than the first. McHugh JA in Carr held that the development must be identified in order to determine whether it was, in its terms, a permissible development under the relevant instrument. Because the permissible use was ‘professional consulting rooms’, defined as a use involving less than a specified number of employees, a development seeking to use premises for a greater number was not a permissible development. That conclusion involved an application of the instrument, in its terms, to the development as proposed. Identification of the development does not help with the construction of the planning instrument: it merely allows identification of the relevant provision in the planning instrument. Whether or not that provision constitutes a development standard must be determined as a matter of construction of the definition in the EPA Act, and its application to the particular provision.” In applying these principles, Basten JA held at paragraph [93]: “93 The fact that a consolidation requirement is imposed as part of the zoning under the LEP is significant. Indeed, it is not even a provision identifying which kinds of development are permissible and which are prohibited, but rather it is a provision which precludes all forms of development, absent compliance with its terms. It requires a step to be taken (namely consolidation of lots) which is not itself a form of development, as a precondition to any permissible development. It does not identify any aspect of a particular development and fix a standard or specify a requirement with respect to it. It applies, indiscriminately, to every permissible development within the area covered. It is thus incapable of falling within the definition of ‘development standard’ in s 4(1) of the EPA Act.” Basten JA identified why he considered that Jagot J at first instance was in error. Noting that the two-step process propounded in Poynting

was conducive to creating errors, he held at paragraphs [99]–[103]: “99 Because of the clarity with which her Honour set out her reasoning process, it is possible to identify more readily than might otherwise be the case the error which underlies it. Reliance was placed on a ‘two step’ approach. As the first step she concluded that consolidation achieves a parcel of land of ‘certain dimensions and area’. That was said to be analogous to a requirement in relation to a provision prescribing an area of land on which development may be carried out. However, the description is misleading and the analogy false. Every block of land, once identified, will have a ‘certain’, in the sense of identifiable, area. That area may be 0.5 hectare, 10 hectares or 100 hectares. But cl 29.2 is indifferent, in its terms, to the actual area achieved. It is therefore not relevantly analogous to a provision which prescribes a minimum or maximum area for development. 100 Her Honour then considered, as the second step, the statutory question of what ‘aspect of that development’ the consolidation requirement regulated. She held, at [41] ‘that the arrangement of land on which the development may be carried out as required by cl 29.2 is an aspect of the development, being development which is otherwise permissible’. However, this conclusion failed to recognise that the requirement would regulate any permissible development on the land, whether it be the erection of an advertising sign, a communications facility or a high-technology industry (all being permissible uses). This renders it unnecessary to identify the particular development proposed. Something which is common to every permissible development does not readily fall within the concept of ‘an aspect of that development’. Furthermore, to describe ‘the arrangement of land’ on which the development is to be carried out as an aspect of the development, whatever the development may be, is to invite the conclusion that every aspect of a valid planning instrument will be a development standard. The distinction between controls which constitute development standards and those which do not, which has been accepted as inherent in the

definition in the EPA Act, is in danger of being lost. That may be because the division of the reasoning process into two steps can distract attention from the exercise required by the statute. 101 However, the critical error arose before the ‘two step’ approach was addressed. Her Honour commenced by identifying the development. She described the proposed development as ‘the erection of dwelling houses on land zoned Bushland Conservation under the LEP’. That description was provided without reference to the terms of the LEP and without discussion as to why that description was adopted. What followed in the reasoning, at least in part, flowed from that identification of the development. 102 Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different. The lacuna in her Honour’s reasoning is the failure to consider whether the consolidation requirement, identified as a ‘zoning subscript’, should properly have been incorporated into the identification of the development. If it had been, the development should properly have been described, adopting her Honour’s language, as ‘the erection of dwelling houses on 14 lots, on land zoned bushland conservation and comprising part only of an area subject to a consolidation requirement’: see [85] above. If that had been the description of the development, no doubt her Honour would have reached a different result. 103 On one view it may be thought that there is an element of circularity in this approach, because the decision to include an element of the provision in question into the description of the development will dictate the answer to the ultimate question,

namely whether that provision is a development standard or not; failure to include the element taken from the relevant provision will dictate the contrary conclusion. What the approach in fact demonstrates is not circularity, but the danger of dividing the statutory question into two or three stages, to be addressed sequentially. Her Honour reached the wrong conclusion because she derived, from existing authority, a sequential approach based on two steps which was at least conducive to error, because it distracted attention from the critical question. That question involved defining the elements of the proposed development which were essential elements in the context of the LEP.” Conclusions The following conclusions arise from Basten JA’s judgment in Laurence Browning: • Conflicting views continue to arise regarding the appropriate principles to be used in the application of SEPP 1, as well as the proper outcome in a particular situation. Whatever the merits of flexibility in relation to rules, there is no merit in flexibility where their operation is manifestly uncertain. • Three aspects of the definition of development standard are noted: (1) The list of matters which may be development standards in paragraphs (a)–(n) of the definition are helpful, but not limiting, nor are they determinative in any particular clause of an EPI. (2) The word “standards” should not be given too much weight as it also includes requirements and suggests a broad meaning, but it is unlikely to be determinative in relation to a particular clause of an EPI. (3) Of greater weight is that a development standard applies to provisions “in relation to the carrying out of development”. This is inconsistent with a provision which prohibits development. But a provision which prohibits some development can often also appear to be a standard.

• The best guide to distinguishing what is a development standard is the requirement that it is “in respect of any aspect of the development”. There needs to be nexus or connection between the standard and the development. • This requires the development and its aspects to be defined before the rest can be applied. • A prohibition of a particular kind of development will not be a development standard if the characteristic of the prohibition is an essential element of the particular development. In such a case, the prohibition has a zoning function. • Despite the need to exercise care in case form governs rather than substance, it should be recognised that an LEP can be drafted to achieve the desired outcome by using a zoning provision or a development standard. • The approach requires considerable weight on the specificity with which a development is defined. How a development is defined is governed by the terms of the LEP. Hence, the correct approach requires identification of the essential elements of a development, which are zoning provisions. But it needs to remember that it is not only the Land Use Table that contains zoning provisions, but that they are also in the special provisions. • The two-step approach used in Poynting is inappropriate, because provisions controlling development are either a prohibition on the development or a standard controlling the carrying out of the development, with no other alternative. Identifying the development does not assist in the task. It only identifies the relevant provisions which then need to be construed as to whether they are a development standard or not. The proper interpretation of an LEP requires all of the provisions to be considered to identify what are zoning provisions and what are development standards, and dividing this process into two steps tends to lead to error.

Ipp JA was concerned that the definition of a standard in s 4(1) of the EPA Act did not accord with its natural meaning. He considered this was akin to defining a cat as including a dog (paragraph [10]). Ipp JA found the approach of identifying essential elements of a development versus an aspect of a development to be equally obscure (paragraph [13]). He criticised the test of distinguishing between requirements that are external to a development and those that are internal on the basis that that answer depends upon the way in which the development is defined (paragraph [14]). He ridiculed the two-step approach advocated in Poynting, favouring a zoning criterion test, holding at paragraphs [15]–[17] and [19]–[20]: “15 Yet another test, which may be described as the Development Standard Twostep, as Tobias JA points out has been applied several times. It is, however, no light fandango. The first step involves determining whether the provision being considered prohibits the proposed development. The second step is determining whether the provision specifies a requirement or a standard in relation to an aspect of the development. 16 Basten JA has drawn attention to inherent difficulties with this process. The authorities hold that, in determining whether a requirement is a development standard or a prohibition, one must first identify the development. The authorities hold, further, that a requirement relating to a development is a development standard unless it is a prohibition. If one, following this approach, identifies the development and decides that a requirement relating thereto is not a prohibition, the answer must inevitably be that the requirement is a development standard. On this scenario, there is no second step to complete. 17 The process also suffers from the basic problem that, once more, the way in which the development is described will determine the answer (and I have pointed out the uncertainties that this involves). … 19 Another test that has found favour depends on whether zoning criteria are applicable. If the relevant provision is a zoning

criterion, and if the developer’s proposal contravenes that criterion (irrespective of how ‘development’ is defined), the provision is regarded as an outright prohibition and not a standard. This, in essence, is the basis of the decision in Woollahra Municipal Council v Carr (1987) 62 LGRA 263 and is also the basis of the reasoning of Basten JA and (partly) that of Tobias JA in this case. 20 The zoning criterion test is a beacon of certainty and simplicity in the Wonderland of s 4(1), inhabited as it is by the shifting sands of words used contrary to their ordinary meaning, indeterminate abstract concepts and vague, complex notions that are incapable of ready resolution.” Thus, Ipp JA agreed with Basten JA in rejecting the two-step approach in Poynting and favouring the zoning criterion approach. Tobias JA, in his judgment in Laurence Browning, delivered a mere four days after his leading judgment in Chase, did not abandon the two-step approach in Poynting. Tobias JA held at paragraphs [35]– [38] and [47]–[54] as follows: “35 The relevant principles for determining whether a particular provision of an LEP is or is not a development standard have been authoritatively stated by Giles JA, with whom Heydon JA and Young CJ in Eq agreed, in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 and by Giles JA, with whom Mason P agreed, in Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179. The principles to be derived from those authorities were accurately summarised by the primary judge in [26] of her judgment and neither party in the present case took issue with them. The difficulty lies in the application of those principles to a particular provision such as cl.29.2. 36 Her Honour properly adopted, as she no doubt felt bound to do, the two-step approach endorsed by Giles JA in Poynting, namely (1) Is the development proposed in respect of the site

prohibited in any circumstances by cl.29.2 construed in the context of the LEP as a whole; and (2) If it is not so prohibited, does cl.29.2 relevantly specify a requirement in respect of any aspect of the proposed development? Her Honour answered the first question in the negative and the second in the affirmative. 37 In answering the first question in the negative, her Honour rejected the Council’s submission that the proposed development was prohibited under any circumstances because cl.29.2 expressly stated that ‘development … is prohibited’ unless and until the relevant land within the heavy black line was consolidated into one lot. In the context of the instrument as a whole, her Honour (at [35]) considered that the proposed development (which she identified as the erection of dwelling houses) to be permissible albeit only upon compliance with the consolidation requirements identified in cl.29.2. The fact that dwelling houses could only be erected upon the site if the consolidation requirement was complied with did not mean that it was a form of development which was prohibited under any circumstances. 38 Having determined the first step in favour of the opponent, her Honour then applied what she referred to as the ‘wider view’ adopted in Poynting with respect to the second step, namely, was cl.29.2 relevantly a provision by or under which a requirement was specified in respect of an aspect of the proposed development? … 47 So far as the first step of the two-step approach is concerned, the question in my opinion is whether cl.29.2 defined as an essential element of the permissibility of development of land in respect of which a Consolidation Requirement was specified on the Map, that all adjoining lots within the relevant subscript shown edged with a heavy black line had been consolidated into one lot.

48 Although the matter is not free from difficulty, I have come to the conclusion that the answer to the question so posed is in the affirmative. The requirement that all adjoining lots within the relevant subscript shown edged with an area within the heavy black line on the Map have been consolidated into one lot is a characteristic of the land to which that subscript applies and which must be satisfied before any form of development is permissible with consent upon that land. 49 Although the opponent submitted that the effect of cl.29.2 was merely to provide a conditional prohibition rather than an absolute prohibition, the same assertion could be made with respect to the definition of ‘professional consulting rooms’ in Carr. In other words, professional consulting rooms were permissible with consent if they employed no more than three employees; or, to put the matter in the negative, professional consulting rooms was a prohibited use unless there were no more than three employees employed therein. 50 If, as Giles JA emphasised in Poynting, substance is not to be trumped by form, then the fact that cl.29.2 is a separate and independent provision to what is permissible within the Bushland Conservation zone in accordance with the Table to cl.9.1, then all development is prohibited within so much of that zone as is subject to a Consolidation Requirement as subscripted on the Map unless that development is proposed on the whole of the land shown edged with [sic.] a the heavy black line which has been consolidated into one lot. 51 As Basten JA observes in [93] of his judgment, cl.29.2 requires a step to be taken (namely consolidation of lots) which is not in itself a form of development as a precondition to any permissible development within the area the subject of the subscript. Accordingly, in my opinion, her Honour ought to have answered the first step of the enquiry in a manner favourable to the Council. 52 Even if her Honour was correct in finding that cl.29.2 did not prohibit the erection of 14 dwelling houses upon the site in any circumstances, I am unable to agree with her characterisation of

the requirement for consolidation as constituting an aspect of that development. The basis of her Honour’s reasoning with respect to the second step of the two-step approach was that the consolidation requirement was analogous to a provision relating to the prescribed area and shape of a parcel of land on which development may be carried out as referred to in subparagraph (a) of the definition of ‘development standards’ in s.4(1): see [39]. 53 As her Honour observed in [40] of her judgment, cl.29.2 should be understood as defining permissibility by reference to the attributes of the land on which the development is proposed (namely, whether the site has been consolidated with other land into one lot). Even accepting the ‘wider view’ of the concept of ‘aspects of the development’ advocated in Poynting, I would not be prepared to extend that concept to a requirement which is unrelated to the development proposed but is an attribute of the whole of the land within the area shown edged with a heavy black line on the Map and which engages more than the land the subject of the application. 54 In other words, even accepting the ‘wider view’, I do not regard the consolidation requirement in cl.29.2 as being equivalent or analogous to a provision that a dwelling house shall not be erected upon an allotment of less than a specified area. The two requirements in my opinion are essentially different. Although one is a requirement with respect to an aspect of the proposed development, the other is not. The latter, as is implicit in the reasons of Basten JA, is an ‘essential element’ to the permissibility as a matter of zoning (in the wider sense referred to by his Honour) of the proposed development and not an aspect of that development which is external to that element.”

¶29-160 Agostino v Penrith City Council — what constitutes a development standard The Court of Appeal returned again to the vexed question of what constitutes a development standard with no greater clarity or agreement in Agostino v Penrith City Council [2010] NSWCA 20

(Agostino). This case was an appeal on a question of law arising out of preliminary question of law in a merit appeal against the refusal by Council of a DA to expand a roadside fruit and vegetable store at Llandilo in the Penrith local government area. The land was zoned Rural A under the Penrith LEP No 201 (Rural Lands) 1991, under which development for the purposes of a shop was prohibited. The land was subject to a “spot re-zoning” by LEP 201 Amendment No 8 gazetted on 19 December 1997 which inserted a new cl 41 into the LEP as follows: “41(1) This clause applies to land situated adjacent to Third Avenue, Llandilo, being Lot 2, DP 221473, shown edged heavy black on the map marked ‘Penrith Local Environmental Plan No. 201 (Rural Lands) (Amendment No. 1)’. (2) For the purpose of this clause: ‘floor area’ means the whole of the area used for the display and storage of goods and merchandise within a fruit and vegetable store, but does not include an area used for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale; ‘fruit and vegetable store’ means a building or place used primarily for selling or exposing for sale by retail, fruit and vegetables and, as an ancillary use only, the selling or exposing or offering for sale by retail of bread, milk, cigarettes, confectionary, soft drinks, fruit juice, flowers, potted plants, pasta, eggs and honey only. (3) Notwithstanding any other provision of this plan, a person may, with the consent of the council, carry out development on land to which this clause applies for the purposes of a fruit and vegetable store with a maximum floor area of 150 sq.m. (4) The council shall not grant consent to the carrying out of development as referred to in subclause (3) unless arrangements satisfactory to the council have been made with the council or the Water Board with regard to the supply of water and disposal of effluent.”

The DA lodged by the Agostinos proposed to increase the floor area of their existing fruit and vegetable store from 150 m2 to 765 m2. The issue in the proceedings was whether the provision in cl 41(3) of the LEP limiting the fruit and vegetable store to a floor area of 150 m2 was a development standard or a prohibition. Tobias JA (with whom Giles JA agreed) delivered the majority judgment holding that the provision was a prohibition. McClellan CJ at CL dissented. Tobias JA reviewed the relevant principles at paragraphs [25]–[37] as follows: “The relevant principles for determining whether clause 41(3) contains a development standard 25 The issue of whether a particular provision of an environmental planning instrument constitutes a development standard or a prohibition has engaged the time of this Court on a number of occasions. Notwithstanding pleas by individual judges that such disputes, of which the present case is another example, constitute a waste of resources and could easily be resolved by appropriate drafting of such instruments, those pleas appear to have gone unheeded by those engaged in the drafting of local environmental plans and other such planning instruments. 26 The problem was adverted to by McClellan CJ at CL in Residents against Improper Development Inc and Another v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 at [212] and [214], comments with which I agreed at [92]. The problems raised by the definition of ‘development standards’ to which I have referred were also the subject of comment by Ipp JA in Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 150 LGERA 130; (2006) 67 NSWLR 672 at [7]–[8]. In those and subsequent paragraphs of his judgment, his Honour exposes the difficulties associated with the resolution of the issue as to whether a particular provision of a local environmental plan is or is not a development standard: difficulties which could be avoided if the suggestions of McClellan CJ at CL were to be adopted. 27 As I have indicated, there are a number of decisions of this

Court which discuss and state the principles or approaches to the resolution of a dispute such as the present. They are (in chronological order) Woollahra Municipal Council v Carr (1987) 62 LGRA 263 (Samuels, Priestley and McHugh JJA); North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222 (Kirby P, Mahoney and Clarke JJA); Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319 (Giles and Heydon JJA, Young CJ in Eq); Lowy v The Land and Environment Court of NSW and Others [2002] NSWCA 353; (2003) 123 LGERA 179 (Mason P, Handley and Giles JJA); Residents Against Improper Development Inc and Another v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360 (Giles and Tobias JJA, McClellan CJ at CL); and Blue Mountains City Council v Laurence Browning Pty Limited [2006] NSWCA 331; (2006) 150 LGERA 130; (2006) 67 NSWLR 672 (Ipp, Tobias and Basten JJA). 28 I do not propose to reiterate in detail the principles that have emerged from the above cases as I discuss them at some length in Laurence Browning at [35] to [47]. Although we reached the same conclusion, Basten JA in that case adopted a slightly different approach at [74] to [85]. 29 In Poynting Giles JA adopted what he referred to as a two-step approach, namely, whether the relevant provision prohibited a proposed development under any circumstances, in which event that provision was not a development standard, and a second step (which was only relevant if the first step was determined in the negative) as to whether the provision specified a requirement or fixed a standard in relation to an aspect of the (non-prohibited) development. Ipp JA in Laurence Browning at [15] noted that the first step involved determining whether the provision being considered prohibited the proposed development whereas the second step involved determining whether the provision specified a requirement or a standard in respect of an aspect of the development. At [16] he tended to agree with the observations of Basten JA in the same case which drew attention to the inherent difficulties of that two-step approach: see at [85]. However, it is

unnecessary in the present case to elaborate further on that aspect of the debate. 30 Nevertheless, it would seem that Basten JA’s preferred approach, as articulated by him in Laurence Browning at [80] and [81] simply depended upon the terms and structure of the particular planning instrument under consideration. This is not inconsistent with the approach of Giles JA in Lowy: see at [116]. In particular, it could be said in summary that Basten JA’s approach required one to first determine what were the essential elements of the permissible development. Thus, at [77], after referring to what McHugh JA (as he then was) had said in Carr (at 269–270), his Honour observed: ‘Thus a prohibition on a particular kind of development will not be a development standard if the characteristic or criterion engaging its operation is an essential element of the particular development, rather than a standard or requirement in respect of an aspect of the proposed development.’ 31 Carr was a classic case in this regard and one heavily relied upon by the appellants in the present case. Under the relevant zoning what was permissible with consent was ‘professional consulting rooms’, an expression relevantly defined in the applicable planning instrument to mean ‘… a number of rooms forming part of … a dwelling house and used or intended for use by not more than … three dentists … who practise therein the profession of … dentistry … and … who employ not more than three employees in connection with such practice.’ 32 The respondent in that case had applied to the council for development consent to carry out the development described as ‘professional dental consulting rooms forming part of a dwelling house used by not more than three dentists who in partnership practise dentistry therein and who employ not more than seven employees in connection with such

practice.’ 33 It was submitted that the requirement in the definition that there be only three employees was a development standard. This Court rejected that submission. McHugh JA observed (at 269) that the Land and Environment Court Assessor had overlooked ‘the essential condition that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development. A provision is not a specified requirement or fixed standard ‘in respect of’ an aspect of a development until the development and its aspects are defined.’ 34 His Honour had earlier made the point on the same page that the only development that was permissible in the relevant zone was ‘professional consulting rooms’ as defined. A dentistry practice having more than three employees simply fell outside the terms of that definition. As such, it was a form of development that was not provided for by the planning instrument as being permissible. 35 In other words, as McHugh JA observed, the development could not be carried out even if the requirement of three employees was eliminated, as there was no other relevant category in the relevant planning instrument that permitted a dental surgery with more than three employees in the relevant zone. The use of premises as a dental surgery with more than three employees was not the use of a building for ‘professional consulting rooms’ as defined. 36 Carr was referred to by Clarke JA in Mayoh where his Honour (at 237) noted that the point being made by McHugh JA was simply that the relevant provision in the definition of ‘professional consulting rooms’ relating to the number of employees, did not lay down a standard against which the proposed development could be measured as the number of employees formed part of the definition of the permissible development. His Honour continued:

‘If, for instance, in the present case, residential flat buildings were defined in the table in clause 9 as meaning residential flat buildings with no more than two storeys, no part of that definition could be regarded as a development standard.’ 37 This last observation, in my view, is of particular relevance to the resolution of the present issue.” In applying these general principles to the particular circumstances in Agostino, Tobias JA held at paragraphs [43]–[52]: “Prohibition or development standard? 43 As has been stated on a number of occasions in the authorities to which I have referred, at the end of the day what is involved in the resolution of the present issue is a question of construction of the particular provisions of the particular planning instrument under consideration. The starting point in the present case, in my view, is the proposition that prior to the insertion of clause 41 into the LEP, a fruit and vegetable store, being a shop (as defined) was a prohibited use. Clause 41 was inserted as an exception to that general prohibition to provide for a particular permissible use on a particular parcel of land. 44 The description of that permissible use is to be found in clause 41(3). In my view the Council’s submission that the proper description of that use is a ‘fruit and vegetable store with a maximum floor area of 150m2’ should be accepted so that any such store with a floor area (as defined) exceeding that maximum falls outside the purview of clause 41(3) and is thus prohibited. 45 In Laurence Browning Basten JA (at [102]), when dealing with the proper identification of the development proposed in that case, observed: ‘Part of that identification should have included reference to the zoning criteria for the land on which the proposed development is to take place. That is because the particular zoning criteria are essential considerations in determining whether the development is permissible. It is clear that, had the erection of dwelling houses been proposed with respect

to land on which such a development was not permitted, the decision would have been different. If the consolidation requirement were understood to be a part of the zoning of the land, on the same logic the result would have been different.’ 46 In the present case, what one is required to do is to identify the proposed development and then to determine whether it falls within the description of that which clause 41(3) makes permissible with consent. In performing this exercise it is necessary to identify which criteria are essential conditions in determining whether the particular development proposed is permissible. Thus as Giles JA observed in Lowy at [116], it is necessary to first address the LEP by reference not only to principle but also to its own structure and provisions. In so doing care is also to be taken to ensure that form does not govern substance: Poynting at [93]. 47 What are those criteria in the present case? As a matter of language, in my view the criteria, which are the essential considerations for determining the permissibility of the proposed development of the appellants, are two-fold. First, the proposed development must be a fruit and vegetable store as defined. Second, it must have a maximum floor area (as defined) of 150m2. That which is proposed satisfies the first criterion but not the second. It is therefore prohibited. 48 In oral argument it was suggested that given the definition of ‘development standards’ in s 4(1) of the EPA Act, one is only concerned to determine what is the development in respect of which requirements are specified or standards are fixed regarding an aspect of that development. Given the definition of ‘development’ in that section as including the erection of a building, it followed, so it was suggested, that the only building proposed to be erected in the present case was an extended fruit and vegetable store so that it followed that the words ‘with a maximum floor area of 150m2’ in clause 41(3) were no more than a requirement specified in respect of an aspect of that building, namely, its floor area.

49 But such a contention overlooks the fact that the definition of ‘development standards’ is referrable only to provisions of an environmental planning instrument ‘in relation to the carrying out of development’. Thus the development in respect of which it is asserted that the relevant provision is a development standard must be one which may be carried out; that is, one which is permitted or permissible. One can only determine that question by reference to the terms of the planning instrument. 50 In my respectful view therefore, the approach referred to in [48] above is to put the cart before the horse. Before one comes to the definition of ‘development standards’ one is required to determine precisely what is the permissible or, as Giles JA described it in Poynting at [97], the ‘non-prohibited’ development. For it is only when one determines what precisely is permissible that one can measure that which is proposed against it in order to determine whether it is permissible or prohibited: if you like, the first step described by Giles JA in Poynting. 51 Furthermore, controlling development by the imposition of development standards as contemplated by s 26(1)(b) in the EPA Act is only relevant to a development that is otherwise permissible. It is an oxymoron to suggest that a development that is controlled by way of a prohibition (see the definition of ‘control’ at [23] above) can also be controlled (regulated) by a development standard. Accordingly, it is only once one has determined what is permissible that one can then consider whether that which is proposed is permissible and, if it is, whether any other regulatory controls are development standards (as defined) for the purpose of applying SEPP No 1. 52 In effect, clause 41(3) is definitional in substance if not in form. …” McClellan CJ at CL, in dissent, held at paragraphs [62]–[65], [68]–[76] and [78]–[83]: “62 The saga of litigation in relation to SEPP 1 is well known to environmental planners and legal practitioners. Ipp JA’s acerbic remarks in Blue Mountains City Council v Laurence Browning Pty

Ltd (2006) 67 NSWLR 672 identified the logical quagmire into which the law has descended. The wastage of public and private money debating these issues is a blight upon our planning system which should be resolved, preferably by legislative intervention or amendment to individual planning instruments. 63 The problems started with the decision of this Court in Woollahra Municipal Council v Carr (1987) 62 LGRA 263, although not because of the decision itself but rather the manner of its later interpretation and application. The planning instrument in Carr was in the conventional form of Planning Scheme Ordinance made under the Local Government Act 1919. Under an ordinance all land was zoned (or reserved). When land was included in a particular zone development of the land was made permissible for identified purposes, either with or without development consent or was prohibited. In the zone with which Carr was concerned the use of land for the purpose of ‘professional/consulting rooms’ was permissible. However, ‘professional consulting rooms’ was defined by the ordinance to mean a number of rooms, inter alia, ‘used or intended for use … by not more than three dentists … and who employ not more than three employees.’ The developer sought to use the relevant building for a dental surgery with not three but seven employees. The consequence was that the proposed use was not as ‘professional consulting rooms’ as defined — there would be too many employees. Because the use was not for ‘professional consulting rooms’ there was no purpose for which the land could be lawfully used and the proposed development was prohibited. As McHugh JA said (at 269) ‘the respondent’s submission requires the rewriting not of a ‘development standard’ but of the definition of a permitted use — ‘professional consulting rooms’.’ 64 It is important to appreciate that the problem in Carr was not approached by asking the question ‘is the relevant provision a development standard or a prohibition’, the question which has often been asked in later cases. As McHugh JA indicated a relaxation of the control over the number of employees had the consequence that the proposed use would change to a purpose

which was prohibited. The outcome in Carr was not arrived at because the provision was not a development standard but rather because the proposed development was for a prohibited purpose. 65 The emphasis in later cases has tended to be on the judgment of McHugh JA. The judgment of Priestley JA is equally instructive. His Honour was prepared to accept, at least for the sake of argument, that the numerical limit on the number of employees in the definition of ‘professional consulting rooms’ was a development standard. Being a ‘requirement’ it obviously was. The problem was that because the relaxation of the number of employees altered the purpose for which the premises were proposed to be used ‘it was not accurate to say that development could but for the development standard contained in the definition of professional consulting rooms be carried out under the Act’ (p 267). … 68 To my mind a provision in a planning instrument which specifies any numerical control of a proposed development almost certainly will be a ‘development standard’ as defined. It will at the least be a provision fixing a requirement in respect of the identified aspect of that development. Accordingly, where a planning instrument permits the erection of a building but imposes a height control, provided the proposal is to erect a building to be used for a purpose permissible within the relevant zone, the height control will be amenable to variation under SEPP 1. If it happens that the purpose is defined by reference to a maximum height (which is possible but would be unusual) then SEPP 1 may not be utilised to relax the provision. 69 Much of the discussion of SEPP 1 in recent cases has turned upon a search to discern whether a particular provision is a ‘zoning requirement’, sometimes referred to as a ‘zoning function’, or is a ‘development standard’ see Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 67 NSWLR 672 and the discussion by Basten JA of the decisions in Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179,

Strathfield Municipal Council v Poynting (2001) 116 LGERA 319. At [79] of Browning Basten JA accepts the proposition that if a LEP prohibits a particular form of development in a particular zone, that provision will not generally be considered a development standard, whereas if a particular form of development is permitted with consent in the specified zone, but further and separately identified controls are imposed on such developments, the further controls may constitute development standards. His Honour said: ‘Self evidently, the drafter of a LEP may be able to achieve the desired result by a zoning provision, or by a development standard, the way in which it is done will be important, because of the need to distinguish a development standard from other forms of prohibition.’ 70 With respect to his Honour and others who have reasoned in this manner I believe that greater clarity in the language is required. Use of the word ‘form’ masks the real object of the provision. If the use of land or building for a particular purpose is prohibited in a zone then, although a particular requirement or standard may be amenable to SEPP 1 if it makes the development one for a use which is prohibited, resort to SEPP 1 will be of no avail. But that does not mean that the relevant provision is not a development standard. 71 Basten JA criticised the two stage process of analysis discussed by Giles JA in Poynting and, in my opinion, he was correct to do so. The only question which must be answered is whether the relevant provision comes within the definition of a development standard, which requires consideration of the definition and the particular provision. It will not be answered by seeking to describe the provision as either a development standard or a zoning provision. That approach as, with respect, the majority decision in the present case illustrates is productive of error. By asking first whether the control operates as a prohibition is to ask the wrong question. Every requirement or standard amenable to SEPP 1 will be a prohibition. 72 The relevant concepts were usefully discussed by this Court in another of the earlier decisions: North Sydney Municipal Council v

Mayoh Pty Ltd [No 2] (1990) & LGRA 222 particularly by Clarke JA. In that case the court held, by majority, that clause 14A(1)(a) of the North Sydney LEP 1989 which provided that a residential flat building shall not be erected on land in the relevant zone if any principal building on adjoining land was less than three stories was not a development standard. It was not a provision which specified a requirement or fixed a standard in respect of an aspect of the proposed development. Rather it prohibited development of any residential flat building on land which adjoined land on which the principal building was less than three stories. There was no relevant aspect of the proposed development which could be relieved by the application of SEPP 1. 73 The difficulties of which Ipp JA spoke in Browning have led to endeavours in some cases to categorise a provision by asking whether it relates to an ‘essential element’ of the development. If it is concluded that it does then it has been suggested that it will not be a development standard and compliance may not be relieved by SEPP 1 (Poynting [36]). 74 With respect every numerical control on development proposed under a LEP is capable of being described as ‘an essential element.’ A height control which confines the maximum height of a building on a particular parcel of land to three stories is an essential element but without question a development standard (see that aspect of the decision in Mayoh discussed in [22] and [23] below). If however, the purposes permissible on the land incorporate a numerical control and a variation of that control will change the proposed purpose to one which is prohibited then the proposed development is not capable of being given consent — not because the numerical control is not a development standard but rather because the development of the land for the proposed purpose is prohibited. 75 In the present case the relevant land has been included within Zone No (1)(a) (Rural ‘A’ Zone — General) under Penrith Local Environmental Plan No 201. Within that zone the use of land for the purpose of a fruit and vegetable store is prohibited. All shops

(which of course includes a fruit and vegetable store) are prohibited, other than convenience stores, general stores and produce stores (clause 9(2)(c) and clause 4 of the table referred to in clause 9(1) of the LEP). 76 However, clause 41 makes special provision for the subject land. The clause contains its own definition of ‘floor space’ and of ‘fruit and vegetable store.’ It then provides that the land may be developed for a ‘fruit and vegetable store’ ie a building may be erected and used for that purpose, and provides that the maximum floor area of such a building is 150 sq m. … 78 To my mind it is plain that the 150 sq m maximum is a requirement fixed in respect of an aspect of the development — ie its floor space. As such it is a provision within the meaning of development standard as defined. As subclause 3 itself makes plain the purpose for which the land may be used with consent is a fruit and vegetable store. Allowing a variation of the floor area so that it exceeds 150 sq m is not to permit a change in the purpose for which the land is to be used. A larger building will remain a fruit and vegetable store. 79 Clause 41 was inserted after the decision in Carr. If the draftsman had intended to put sub clause (3) beyond the reach of SEPP 1 all that was necessary was to include in the definition of fruit and vegetable store a floor space requirement. As Tobias JA points out that approach was taken to the drafting of clause 42 but not to clause 41. 80 To my mind the result of the analysis favoured by the majority in the present case cannot be reconciled with the decisions in Carr or Mayoh. I have already discussed clause 14A(1)(a) of the North Sydney LEP 1989 which the court said in Mayoh was not a development standard. However, clause 14A(2) was in the following terms: ‘(2) A residential flat building should not be erected on land in Zone No 2(c) if the building has more than 3 storeys

measured vertically above any point at natural ground level.’ 81 The court held that this was a development standard (Mahoney JA at 234; Clarke JA at 238). Their Honours reached this conclusion by asking the question whether the provision provided that on the relevant ‘land development may be carried out in a particular way or to a particular extent’ (Mahoney JA) and whether it provided a ‘standard’ (Clarke JA). 82 I mean no disrespect to Tobias JA’s reasoning but the approach which his Honour adopts to the description of a permissible use seems to be novel. In my experience planning instruments do not describe a use of land by reference to floor space. In any event in the present case the draftsperson has gone to the trouble of defining the use which, by exception to the general prohibition, may be permitted on the land. He or she did not define that use by reference to a numerical limit on the floor space. Quite the contrary. Under clause 41(3) the permissible use is that which has been defined by clause 41(2) as a ‘fruit and vegetable store’ on which a ‘requirement’ or ‘standard’ with respect to floor area is imposed. 83 Tobias JA suggests that the analysis I prefer puts the cart before the horse. With respect to both his Honour and Giles JA the approach which they have taken and which follows the two stage test suggested in Poynting confirms the wisdom in Basten JA doubting that approach. The relevant question is not to ask firstly what is permissible. It is as McHugh JA emphasised in Carr to identify the proposed development. One then asks is the relevant provision a ‘requirement’ or ‘standard’ in relation to an aspect of that development. If it is it will be a development standard. Only if, for a reason other than the necessity to vary the requirement or standard the development is prohibited, must development consent be refused.” Tobias JA noted the different approach taken by him in Laurence Browning compared to that of Basten JA, where Basten JA jettisoned the two-step Poynting approach while Tobias JA did not. Without further debating the different approaches, Tobias JA appears to have

acquiesced to the Basten JA approach in Laurence Browning, which he described as involving primarily a consideration of the terms and structure of the LEP under consideration with the task to initially determine what were “the essential elements of the permissible development”. A provision would not lay down a standard against which a proposed development could be measured if that provision formed part of the defining characteristics of the permissible development. In construing the particular LEP in Agostino, Tobias JA correctly focused on the fact that the provisions in question were inserted by a spot rezoning to make a modest fruit and vegetable store permissible on a particular parcel of land in a rural zone where otherwise shops were prohibited. He identified the essential features in properly identifying the development as: • a fruit and vegetable store, and • with a maximum floor area of 150 m2. Only when you have identified what is the permissible development can you then identify if there are any development standards controlling how that identified permissible development is carried out. McClellan CJ at CL considered that any provision in an LEP which identifies a numerical control of a proposed development will almost certainly be a development standard. McClellan CJ at CL appears to reject the zoning requirement reasoning, noting that, when a proposed use of land or building for a particular purpose is prohibited by a particular requirement or standard, even if that particular requirement or standard is capable of variation by SEPP 1, if the result is still prohibited, then use of SEPP 1 is futile. But that does not mean the particular requirement or standard is not a development standard. Of course, there is a circularity in this conundrum depending upon whether the requirement or standard forms an essential element of what is permissible or merely something to be applied in carrying out the permissible development. McClellan CJ at CL agreed with Basten JA in Laurence Browning that the two-step approach in Poynting is of little assistance. However, he considered correctly that the alternative

approach of the zoning requirement, or essential element of the development, to be equally conducive to error as the two-step approach in Poynting. In the course of deliberations on what constitutes a development standard the courts have employed varying means of analysis including: (1) The dichotomy between a prohibition versus regulation (Mayoh): This requires an analysis of the relevant provision against the two competing categories of prohibition (can the development be carried out) versus regulating development by a development standard (how the development is carried out). (2) The two-step approach of the majority in Poynting: This approach involves the following two steps: (i) What is the development itself? In considering this step a provision prohibiting development will not be a development standard. (ii) Establishing whether the provisions specify a requirement or amend a standard in relation to an aspect of the otherwise permissible development. If this is the case, it is a development standard. (3) The internal versus external aspect of a development: This approach seeks to distinguish between what is an integral part of what the development itself is (the integral aspect) and a standard or requirement that is external to the development (the external aspect), with only the external aspect being a development standard (McHugh JA in Carr). This approach is a precursor to the essential element approach. (4) The zoning function or essential element approach: This requires identifying whether the provision in question serves a zoning function, being a fundamental discriminator that makes a development permissible (Handley JA in Lowy), or an essential element of defining what the permissible development is (McHugh

JA in Carr, Basten JA and Ipp JA in Laurence Browning, Tobias JA in Agostino).

¶29-170 Zoning function (essential element approach) is favoured approach It appears that, at present, the “zoning function” or “essential element approach”, is the favoured approach in identifying whether a particular provision is a development standard, albeit with little enthusiasm. For despite the judicial gymnastics in seeking some clarity in explaining what is a development standard, despite some helpful judicial suggestions for reform, and despite some splenetic outbursts, the situation of confusion remains. It may well be that, with the benefit of hindsight, the dissenting view of Kirby P in Mayoh was the most practical and sensible approach to the question of development standards. Alternatively, that confusion can only be resolved by legislative reform. McClellan CJ at CL in Chase identified a modest approach to reform of LEPs identifying the provisions to which SEPP 1 does not apply. While a small improvement, that approach does not completely solve the problem of identifying what is a development standard. Perhaps a better approach is to remove references to “development standards” entirely and replace them with the neutral term of “flexible provisions of an EPI”. Flexible provisions would be those provisions identified in an EPI as such. Only those identified flexible provisions would be amenable to an objection that compliance with that flexible provision is unreasonable or unnecessary in the circumstances of the case.

DEVELOPMENT STANDARDS, STANDARD INSTRUMENT AND KEY PRINCIPLES ¶30-010 State Environmental Planning Policy No 1 does not apply to Local Environmental Plans prepared in accordance with the Standard Instrument

As identified in the earlier chapters on Local Environmental Plans (LEPs) (see Part D of this book), the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument) provides in cl 1.9(2) that State Environmental Planning Policy No 1 — Development Standards (SEPP 1) does not apply to LEPs prepared in accordance with the Standard Instrument. The Standard Instrument contains its own mechanism for flexibility in the application of development standards in cl 4.6 as follows: “4.6 Exceptions to development standards [compulsory] (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the DirectorGeneral must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if:

(a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following: (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4. Direction. Additional exclusions may be added.”

¶30-020 State Environmental Planning Policy No 1 to become less applicable As more LEPs are made using the Standard Instrument, then SEPP 1 will become less applicable. While cl 4.6 of the Standard Instrument is modelled upon SEPP 1, the following key differences are noted: • The objectives of cl 4.6(1) differ from cl 3 of SEPP 1 in that they remove reference to the attachment of the objects specified in s

5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and replace it with the even more amorphous “to achieve better outcomes for and from development by allowing flexibility in particular circumstances.” This prompts the question of whether “better outcomes” is interpreted by reference to the aims of the LEP in question or the zone objectives. • Clause 4.6(2) of the Standard Instrument permits express exclusion of a development standard from the operation of cl 4.6, following the suggestion of McClellan CJ at CL in Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323. • Clause 4.6(3) of the Standard Instrument requires a written request (no longer called an objection as in SEPP 1) to demonstrate not only the current test in SEPP 1 that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, but an additional factor, namely “that there are sufficient environmental planning grounds to justify contravening the development standard”. Presumably this requires a planning justification for the contravention as opposed to one related to the desires of or economic return to the applicant. • Clause 4.6(4) of the Standard Instrument requires the consent authority not to approve a development application (DA) which contravenes a development standard unless the consent authority is satisfied that: (i) the written request has “adequately addressed” the requirements to be addressed by the applicant, namely: – compliance with the standard is unreasonable or unnecessary in the circumstances of the case. (This is the same as in SEPP 1.) – there are sufficient environmental planning grounds to justify contravening the standard. (This appears to be

narrower than the broader test in SEPP 1 being “wellfounded”.) (ii) the proposed development is in the public interest which is to be discerned by whether it is consistent with: – the objectives of the particular standard. (This is equivalent to the underlying purpose or objective of the standard noted in Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 (Hooker) and Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 (Winten)). – the objectives for development in the zone in which the development is to be carried out. (This is a change from SEPP 1 which required reference to the aims of SEPP 1 including s 5(a)(i) and (ii) of the EPA Act.) In addition, concurrence from the Director-General of the Department of Planning is required. • In deciding whether to grant concurrence, the Director-General is required to consider the following: (i) whether the contravention of the development standard causes any matter of significance for State or regional environmental planning. (This is the same in SEPP 1.) (ii) the public benefit of maintaining the development standard. (This is the same in SEPP 1.) (iii) any other matters required to be taken into consideration by the Director-General before granting concurrence. (This is a new addition from SEPP 1 and allows the Director-General to add to matters considered before granting concurrence.) • Clauses 4.6(6) and (8) provide for explicit limitations on the circumstances where a DA can be granted which contravenes a development standard. These relate to subdivision in certain rural

and environmental zones and the standards for miscellaneous uses under cl 5.4 relating to bed and breakfast accommodation, home businesses, home industries, industrial retail outlets, farm stay accommodation, kiosks, neighbourhood shops, roadside stalls and secondary dwellings. All of the uses in cl 5.4 are analogous to the circumstances in Agostino v Penrith City Council [2010] NSWCA 20 (Agostino). • Clause 4.6(7) requires the consent authority to keep a record of its assessment of the request to vary a development standard. This ensures there is clear evidence of how the consent authority addresses the request. Additionally, s 79C(2) provides for non-discretionary development standards in an Environmental Planning Instrument (EPI) which a consent authority cannot reconsider. It must not refuse a DA on the grounds that the development does not comply with these standards, and may not impose a condition dealing with the same issues as the standards, but is more onerous than those standards. Section 79C(3) provides that, if a DA does not comply with non-discretionary development standards, a provision of an EPI allowing for flexibility may be applied.

¶30-030 Principles relating to development standards The key principles derived from the discussion on development standards in Chapter ¶29 and this chapter (¶30) are as follows: Principle 1: The provisions of an EPI have legal force and effect as provisions of delegated legislation, and hence are required to be complied with. Some flexibility regarding compliance with provisions of an EPI which constitute a development standard is provided if either SEPP 1 applies, or the EPI has a provision similar to cl 4.6 of the Standard Instrument. Principle 2: A development standard is defined in s 4(1) of the EPA Act as being a provision of an EPI or the regulations that are: • in relation to the carrying out of development, and

• provisions by or under which requirements are specified or standards fixed. The types of requirements or standards are illustrated by paragraphs (a)–(n) of the definition, but this list is not exhaustive. The important aspect about a development standard is that it is a provision in an EPI only in relation to the carrying out of development (Basten JA in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 (Laurence Browning)). Principle 3: The flexibility provisions in SEPP 1 or cl 4.6 of the Standard Instrument only apply to a provision of an EPI that is a development standard. They do not apply to provisions of an EPI which are not a development standard. Principle 4: The task of distinguishing a development standard from other provisions of an EPI is difficult. A number of methods have been used by the courts to identify a development standard from other provisions of an EPI including: (1) The prohibition versus regulation dictionary: This approach seeks to distinguish between provisions of an EPI regarding whether development may be carried out at all (a prohibition) and provisions of an EPI about how that development is carried out (a development standard) (North Sydney Municipal Council v P.D. Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222). (2) The internal versus external aspects of a development: This approach seeks to distinguish between what is an integral part of what the development itself is (the internal aspect) and a standard or requirement that is external to the development (the external aspect), with only the external aspects being development standards (McHugh JA in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 (Carr)). This approach is a precursor of the essential element approach. (3) The two-step approach: The question of whether a provision is a development standard is approached in two steps:

(i) Asking the question — What is the development itself? In this step, a provision prohibiting development will not be a development standard. (ii) Establishing whether the provision specifies a requirement or fixes a standard in relation to an aspect of an otherwise permissible development. If the answer is yes, then it is a development standard. (Giles JA in Strathfield Municipal Council v Poynting [2001] NSWCA 270 (Poynting)) (4) The zoning function or essential element approach: This approach emphasises whether the provision in question serves a zoning function, being a factor which makes the development permissible (Handley JA in Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353 (Lowy) and Ipp JA in Laurence Browning) or an essential element of defining what the permissible development is (McHugh JA in Carr, Basten JA and Ipp JA in Laurence Browning, Tobias JA in Agostino). The fourth approach, the zoning function or essential element approach, appears to be currently favoured, although all approaches pose difficulties of circularity of reasoning. Principle 5: In analysing a provision of an EPI to ascertain if it is a development standard, the following factors should be noted: • The provision being examined should be seen in the wider context of the EPI as a whole (Giles JA in Poynting, Mason P in Lowy). • The fact that a provision falls into one of the matters listed in paragraphs (a)–(o) of the definition of development standard in s 4(1) of the EPA Act is not determinative. The provision in question must be in relation to the carrying out of development (Giles JA in Poynting). • While proper attention needs to be given to the statutory provision in question, care must be taken lest form governs rather than

substance (Giles JA in Poynting, Handley JA in Lowy, Basten JA in Laurence Browning for different emphasis). • Attention needs to be given to the specificity with which developments are defined. If a development is broadly defined, then many of the elements will be development standards. If a development is specifically defined, particularly in a spot rezoning, many of the elements are more likely to be essential elements of the development itself and not development standards (Basten JA in Laurence Browning, Tobias JA in Agostino). Principle 6: In considering an objection under SEPP 1 to compliance with a development standard, the following five questions need to be answered: (1) Is the provision a development standard? (2) What is the underlying purpose or object of the standard? (3) Is compliance with the development standard consistent with the aims of SEPP 1 and, in particular, does compliance with the development standard tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the EPA Act? (4) Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (5) Is the objection well founded? (Hooker, Winten) In Winten, it was suggested that a relevant consideration in considering question (5) was whether a development which complies with the development standard is unreasonable or unnecessary. Principle 7: Where an LEP utilises cl 4.6 of the Standard Instrument the five questions posed in Principle 6 may be adapted as follows: (1) Is the provision a development standard? If it is a development

standard, is the operation of the flexibility provision excluded in the LEP? (2) What is the underlying purpose or object of the standard? (3) Is the proposed development which does not comply with the standard in the public interest because it is consistent with the underlying purpose or object of the standard and the objectives for development in the zone in which it is proposed to be carried out? (4) Is compliance with the development standard unreasonable or unnecessary? (5) Is there sufficient environmental planning grounds to justify contravening the development standard? (Clause 4.6 of Standard Instrument) Principle 8: The ways in which compliance with a development standard can be shown to be unnecessary (in that it is achieved any way) or unreasonable (in that no purpose would be served) are as follows: • The objectives of the development standard are achieved notwithstanding non-compliance with the standard. Under this approach development standards are viewed not as the planning objectives, but as a means to achieve those objectives. If there is an alternative means to achieve the objective, then the objective would be achieved anyway (and hence compliance with the standard is unnecessary) and there is no purpose served by requiring compliance with the standard (and hence compliance would be unreasonable). This tends to be the most common way of establishing that compliance is unreasonable or unnecessary. • To establish that the underlying objective or purpose of the standard is not relevant to the development, and hence compliance with the standard is unnecessary.

• To establish that the underlying objective or purpose of the standard would be defeated if compliance was required, and hence compliance with the standard is unreasonable. • To establish that the development standard has been virtually abandoned or destroyed by Council’s own decisions departing from the standard, and hence compliance with the standard is unnecessary or unreasonable. • To establish that the zoning of the particular land was an anomaly or inappropriate, and as a result the development standard applying to zoning are also an anomaly or inappropriate, and hence compliance with the standard is unnecessary or unreasonable. Caution should be exercised not to expand the fifth point outlined above (Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe)). Principle 9: In considering an objection under SEPP 1 (and likely to be applicable to requests under cl 4.5 of the Standard Instrument), the following factors should be considered: • It is not sufficient to point to an absence of environmental harm (Hooker, Wehbe). • A development standard must be assumed to have a purpose (Hooker). • Flexibility with development standards is not to be used to effect general planning changes which would be undertaken by the preparation of a new LEP (Hooker). • It is not a relevant factor to argue that the development standard is inappropriate to the particular zone (Hooker).

PART G WHAT IS A DEVELOPMENT APPLICATION AND WHEN IS IT REQUIRED? ¶31-010 The two-stage sieve in development assessment Now that Environmental Planning Instruments (EPIs) and Pt 3 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) have been considered, we turn to Pt 4 of the EPA Act dealing with development assessment. In discussing the context of Pt 3 in the EPA Act, the analogy has been drawn of a two-stage sieve, with Pt 3 and EPIs performing the initial coarse sieve of separating development granules into three piles (or categories) representing: (1) developments which could proceed without consent (2) developments which were prohibited, and (3) developments which were permissible with consent. The third pile (or category) is the category of developments which are potentially capable of being carried out, but which require further detailed assessment. This further assessment is the secondary, finergrained sieve of Pt 4, dealing with development assessment. It follows from what has been outlined, that Pt 4 (other than some exceptions in Pt 4.1 in relation to State significant development (SSD) to be discussed later) of the EPA Act has no independent operation without EPIs. Only when an EPI makes development permissible with consent does Pt 4 have any work to do. This is because when an EPI provides that development is permissible with consent, the means by which that consent is obtained is by the lodgment and approval of a development application (DA) under Pt 4 of the EPA Act. This is in contrast to Pt 5.1

on State significant infrastructure (and the former Pt 3A on major infrastructure and other projects) which operates to require the lodgment and consideration of infrastructure developments once they have been identified as being subject to Pt 5.1. Hence, the answer to the question of “when is a development application (DA) required?” is simple. A DA is required when an EPI provides that the development concerned is permissible only with consent. This brings into focus the need to properly construe the EPIs applicable to an individual site to answer the following questions: • Is the proposal capable of being controlled by an EPI? • What are the EPIs which apply to the subject land? • What is the ambit of control actually provided in the applicable EPIs and is the subject proposal controlled by the applicable EPIs? • Do the applicable EPIs provide that the subject proposal is permissible with consent (and not prohibited or exempt development or permissible without consent)? In answering this question, the subject proposal needs to be characterised and the applicable EPIs need to be properly construed in their application to the subject proposal. Only when these questions have been considered and a conclusion has been reached that the subject proposal is permissible with consent does Pt 4 apply to require a DA. These threshold issues are provided for in s 76–76C of the EPA Act as follows: “76 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land

to which the provision applies. … (2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. … 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be

addressed by specified predetermined development standards is complying development. (6)–(9) (Repealed) 76B Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 76C Relationship of this Division to this Act This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.” Section 78A then provides in relation to a DA as follows: “78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4(1). …” It is important to note that s 78A(1) provides that a DA must be seeking consent to carry out “development”. It needs to be remembered that “development”, as defined in s 4(1) of the EPA Act, includes any act, matter or thing controlled by an EPI, and hence reference is required to applicable EPIs to determine whether “development” in the context of a particular EPI means more than the standard five elements in its definition.

¶31-020 Gordon & Valich Pty Ltd v City of Sydney Council In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 (Gordon & Valich), Preston CJ in the Land and Environment Court of NSW (NSWLEC) noted at paragraphs [15]–[19] as follows: “15 At the outset, it should be noted that the development application is inaccurate in its description of the development. I have said, the application sought to amend the existing development consent in certain ways. Under the Environmental Planning and Assessment Act 1979, a development application can only be made seeking consent for the carrying out of development: s 78A(1). 16 ‘Development’ is a defined term: see s 4(1). It includes the use of land, the subdivision of land, the erection of a building, the carrying out of a work, and the demolition of a building or work. A development consent may be granted authorising the carrying out of development of one or more of these types. A development consent, however, is not itself development. The Environmental Planning and Assessment Act does not permit the lodging of a development application to amend a development consent; rather only to carry out development of one or more of the types falling within the definition of development (see s 78A(2)). 17 Of course, if development consent is granted for the carrying out of development as defined, a condition of consent for that development may be able to be imposed requiring the modification or surrender of an earlier development consent: see s 80(1)(b) and (5). It may also be that even without a formal condition requiring modification, the grant of and the carrying out in accordance with another development consent may have such a consequence. In either case, this might be a consequence but it would not be the purpose of the development consent. 18 In this case, the application clearly does propose the carrying out of development notwithstanding the description of the development as being the amendment of the existing

development consent. It proposes the carrying out of works, the erection of a building, and the subsequent use of land. If development consent were to be granted for the carrying out of these various types of development, a condition of consent could be imposed under s 80A(1) which might modify any earlier development consent, including the consent in question in this case. However, as I have noted, this would be the consequence but not the direct purpose of the development application. 19 The misdescription in the development application of the development as being the amendment of the existing development consent does not necessarily mean that the development application is incompetent. The fact that somebody describes development in a particular way does not necessarily lead to invalidity; one looks to substance not form. The important point is to understand what is the particular development that is being proposed and that can be understood by looking at the particular plans accompanying the development application.” Thus, Preston CJ held that a DA can only be sought if the applicant is seeking consent to carry out one or more of the types of “development” as defined in s 4(1). A DA cannot be made seeking consent for something which is not “development” as defined, such as an amendment to a condition of a development consent. Similarly, a DA cannot be made seeking some “in principle” approval without some actual development, or approval to a master plan or concept plan without some actual development. As Pearlman CJ said in Brooklyn Resort Pty Ltd v Hornsby Shire Council and Anor [1999] NSWLEC 214 (Brooklyn Resort) at paragraphs [115]–[120]: “115. The development application purported to seek consent for a ‘master plan’ and for stage 1 of the proposed development. There is an issue as to whether the Court is empowered to grant consent to a ‘master plan’. 116. The applicant submitted that the Court’s power to grant consent to a ‘master plan’ is to be found in s 91AB of the EP&A Act (which section, after the amendments to that Act which came into force on 1 July 1998, remains unamended but is re-

numbered as s 80(4)). That section is headed ‘Staged Development’ and states: ‘91AB (1) A development consent may be granted — (a) for the development for which the consent is sought; or (b) for that development, except for a specified part or aspect of that development; or (c) for a specified part or aspect of that development.’ (2) Such a development consent may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent. 117. In my opinion, s 91AB does not allow the Court to grant development consent to a ‘master plan’ as such. The Court is empowered, however, to grant development consent for a tourist resort upon the site, and to impose a condition that stage 2 and stage 3 of the proposed development must be the subject of another development consent. 118. That construction follows, I think, from the reference in s 91AB to ‘the development for which the consent is sought’, which is later referred to as ‘that development’ or ‘the development’. A ‘master plan’ is not ‘development’. The term ‘development’ is defined in s 4 of the EP&A Act and, so far as is presently relevant, means, in relation to the site, the use of the site, or of a building or work on the site. What the applicant seeks is to use the site for the purposes of a tourist resort. In other words, the development for which consent is sought in this case is the use of the site for a tourist resort. 119. It may be that the applicant is seeking, not merely development consent for a tourist resort on the site, but some form of ‘in-principle’ development consent to the buildings and other development the subject of stages 2 and 3 on the condition

that the detail of those stages is to be the subject of a further development consent. I do not interpret 91AB as empowering the Court to grant a development consent in that form, but even if the power was available, there is simply insufficient information and material available at this point for the Court adequately to assess the potential impacts of stages 2 and 3. 120. In accordance with the foregoing I have assessed the development application upon the basis that the it seeks development consent for use of the site for a tourist resort and for stage 1 but subject to a condition that stage 2 and stage 3 of the proposed development must be the subject of another development consent.” Hence, Pearlman CJ in Brooklyn Resort emphasises that a DA needs to seek consent for “development” and a DA cannot be granted for an “in principle” application or one that is for a master plan or concept plan without some actual development. The question arises as to who selects the development to be subject of a DA? The statutory terms on s 78A give this task to the person who lodges the DA, namely the applicant. It is important to appreciate that this responsibility does not rest with the consent authority, nor does the consent authority have a role in suggesting or indeed dictating to an applicant what should or should not be included in a DA.

¶31-030 Pilkington v Secretary of State for the Environment and Others (UK) In the United Kingdom, this principle has been forcefully espoused by Lord Widgery CJ (with whom Bridge J and May J agreed) in the Queen’s Bench Division in Pilkington v Secretary of State for the Environment and Others [1974] 1 All ER 283 (Pilkington) at p 286– 287: “There is, perhaps surprisingly, not very much authority on this point which one would think could often arise in practice, so I venture to start at the beginning with the more elementary

principles which arise. In the first place I have no doubt that a landowner is entitled to make any number of applications for planning permission which his fancy dictates, even though the development referred to is quite different when one compares one application to another. It is open to a landowner to test the market by putting in a number of applications and seeing what the attitude of the planning authority is to his proposals. Equally it seems to me that a planning authority receiving a number of planning applications in respect of the same land is required to deal with them, and to deal with them even though they are mutually inconsistent one with the other. Of course, special cases will arise where one application deliberately and expressly [p 287] refers to or incorporates another, but we are not concerned with that type of application in the present case. In the absence of any such complication, I would regard it as the duty of the planning authority to regard each application as a proposal in itself, and to apply its mind to each application, asking itself whether the proposal there contained is consistent with good planning in the factual background against which the application is made. I do not regard it as part of the duty of the local authority itself to relate one planning application or one planning permission to another to see if they are contradictory. Indeed I think it would be unnecessary officiousness if a planning authority did such a thing. They should regard each application as a proposal for a separate and independent development, and they should consider the merits of the application on that basis. What is the consequence here? The fact that application 756 related to a bungalow central in the site, and the fact that it contemplated only one bungalow on the whole site, and the fact that that permission has now been implemented, means in my judgment that one must look back at permission 601, and see whether in fact that development there contemplated can now be carried out consistently with the

development sanctioned in the implemented application no 756. For this purpose I think one looks to see what is the development authorised in the permission which has been implemented. One looks first of all to see the full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission having regard to that which was done or authorised to be done under the permission which has been implemented.”

¶31-040 Prineas v Forestry Commission of New South Wales In New South Wales, in the context of seeking approval for an “activity” under Pt 5 of the EPA Act, this issue was considered by the NSW Court of Appeal in Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160 (Prineas). In this case, the Court considered among other issues the adequacy of an Environmental Impact Statement (EIS) prepared by the Forestry Commission of NSW for the logging of rainforests in the Upper Hastings Valley in the midNorth Coast of New South Wales. The appellant attacked the EIS as being so deficient as to be null and void. One of the bases for this attack was that the EIS defined the activity in respect of which approval was sought as being the logging of rainforests, even though rainforests are intermingled with eucalypt hardwoods and the economics of logging may require the simultaneous logging of rainforests and hardwoods. The appellant contended this was a fatal flaw in the EIS, which should have dealt with the hardwood logging as well. Hutley JA (with whom Samuels JA and Priestley JA agreed on this matter) said at p 164: “As the impact of developmental work may be of definite duration, and afford opportunities for further activity, no planner could

prepare a statement which exhausts the possibilities of all development. The proponent must have the privilege of selecting what he proposed to develop. It may be an issue for consideration where the E.I.S. fails to give a full account of likely environmental impacts and it may be submitted that the proposal, as formulated, is a sham and a mere cover for a quite different type of development but, barring such a challenge, it does not seem to me that the fact that what is proposed could be seen as, possibly, part of a wider proposal is a relevant challenge to the E.I.S. If and when the range of activities of the commission extends to actually logging hardwood timber, it may be that it would have to present another E.I.S. That the logging of hardwood timbers is a natural expansion of the proposed logging of rainforest timbers is not a ground for rejecting this E.I.S. for failure to comply with reg. 57.” The decisions in Pilkington and Prineas suggest that the task of selecting what should be the subject of a DA and what should be included or excluded is within the purview of the applicant and it is not a role of the planning decision-maker. Likewise, these decisions suggest that the role of the decision-maker in relation to DAs is largely responsive. The task of the decision-maker is to deal with the DA before it and to make a merit determination of that application. Where there is more than one DA or development consent applying to the same site, the task of the decision-maker is limited to whether the proposed development (the subject of a DA) can possibly be carried out consistent with the development consents already granted. But it is not the task of the planning decision-maker to indicate that some other development would be more favoured. Rather, the task is to make a merit determination regarding the application lodged to decide whether it is acceptable or not and hence, whether consent should be granted or not. The only role of the decision-maker in challenging what the subject of a DA is arises where it is considered the application is a sham and a mere cover for some quite different type of development.

¶31-050 Seyffer v Shoalhaven City Council The issue of multiple DAs for the same land and their interrelationship was considered by Biscoe J in the NSWLEC in Seyffer v Shoalhaven

City Council [2006] NSWLEC 564 (Seyffer). In this case, a DA had been lodged for a retirement village with a connection to the existing reticulated water and sewerage systems operated by Shoalhaven Water. While this DA was subject to a merit appeal to the Court, a second DA was lodged for an on-site water cycle management system including on-site sewerage treatment. This was after the consent authority had rejected an application to amend the first DA on the grounds that it was not properly an amendment. The Council declined to consider the second DA because it was in reality an amendment to the first DA and because it depended upon the approval of the first DA, but was inconsistent with the first DA. It appears the reason why the second DA was not lodged as a stand-alone DA of a retirement village with on-site waste treatment was that, in the period since the lodgment of the first DA, the relevant EPI was amended to prohibit the approval of new applications for retirement villages on the subject land. Biscoe J held at paragraphs [24]–[27] and [32]–[33] as follows: “24 It is common ground, and I agree, that there may be more than one development application for the same development. 25 The second development application did not purport to seek to amend the first development application. Indeed, the accompanying Statement of Environmental Effects stated that the Court’s rejection of the applicant’s amendment application necessitated a separate development application for the system. 26 The first development application has not been abandoned. It is alive and pending in the merits review appeal to this Court. It contemplates connection to the town supply system. The applicant’s solicitor’s facsimile of 22 December 2005, quoted earlier, evidences that the applicant was then contending for ‘options’, being connection to the town supply system or an onsite system. Before me, it was confirmed, on behalf of the applicant, that the applicant was continuing to contend for these options in the alternative in, respectively, the first and second development applications.

27 Section 78A of the EPA Act permits a person to apply to a consent authority for consent to carry out ‘development’. The onsite system contemplated by the second development application, in my view, is within the definition of ‘development’ in s 4 of the EPA Act. That definition is very wide. It includes ‘the use of land’ and ‘the carrying out of a work’. … 32 In my view, the applicant is entitled to proceed with its first development application seeking to persuade the Court, at the time of determination, that consent can be given for connection to the town supply system. Equally, the applicant is entitled to proceed with its second development application, to advance its on-site system as an alternative. It is possible that consent may be obtained for the first development application and for the second development application, which would give the applicant a choice as to how to proceed when carrying out the development. It is possible that consent may be given to the first development application except for the connection to the town supply system, contingent upon the second development application being approved. Conversely, it is possible that the second development application could be approved subject to the first development application (with or without the connection to the town supply system) being approved. 33 It is preferable, I think, not to determine this case by reference to whether or not the second development application was ‘invalid’. In Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 231 [35], Spigelman CJ said: ‘I see very little, if any, scope in this legislative scheme for the concept of a ‘valid’ application. Citizens are entitled to apply to authorities for whatever they like’.” In essence, Biscoe J in Seyffer expressed the same principles, albeit in more bland language, what Widergy CJ said in Pilkington, namely that an applicant is entitled to submit multiple DAs for the same site as alternative development options even though they may not be consistent. Further, a DA may be lodged which depends upon another DA as yet unapproved.

¶31-060 Council of the City of Parramatta v Precision Rubber Service Pty Limited — is an earlier development consent still applicable? In Council of the City of Parramatta v Precision Rubber Service Pty Limited [1995] NSWLEC 34 (10 March 1995) (Precision Rubber Service), Pearlman CJ in the NSWLEC considered the status and effect of a development consent issued by the Council in 1995 to a DA lodged in 1984 for a change of use from sheet metal rolling to the manufacture of silicone seals in industrial premises at Pendle Hill. At the relevant time in the 4(a) General Industrial zone applying to the land, development for the purposes of industry, other than offensive and hazardous industries, was permissible without consent. Thus, no development consent was required for the change of use and hence no DA was necessary. The issue in dispute between the parties was whether the respondent was bound to comply with the terms and conditions of the development consent issued by the Council some 10 years prior to the proceedings. Pearlman CJ held as follows: “The Competing Arguments In the light of the statutory context, the competing arguments on the question of the effect of the development consent granted to the first respondent may be shortly stated. Mr Tomasetti, for the council, submitted that the development consent granted by the council has no legal force or effect, in the circumstances where, under the BPSO1, the use was permissible without the necessity for any development consent, there being, in those circumstances, no power conferred on the council to grant consent. His argument was that the statutory foundation which enabled or empowered the council to restrict development was to be found in the BPSO, which applied by force of the provisions in the Act. At the time when the council purported to grant consent, the BPSO did not confer upon the council any

power to restrict the use of the subject land for the purpose of an industry. Hence it must follow, in this submission, that the purported grant of consent was of no legal effect. Mr Wilson, for the respondents, submitted that there is nothing in the Act which suggests that the making of a development application and its determination by the council is unlawful in circumstances where the use was permissible without the necessity for development consent. In his submission, there was a valid development application made under s77 for the purposes of the Act, in respect of which the council exercised its administrative function, that is, it determined that development application under s91 by granting consent. In the absence of any provision in the Act or the BPSO prohibiting the council from granting consent in respect of development which is permissible without consent, the council validly exercised its administrative function, and, as a consequence, the development consent is valid and has legal effect. The Effect of the Development Consent In my opinion, Mr Tomasetti is correct in his assertion that the development consent is of no legal effect. That follows, I think, from the statutory context. A person will, under s76, be in breach of the Act if that person carries out development without consent in circumstances where consent is required. The question as to whether or not consent is required is to be determined by having regard to the relevant environmental planning instrument. If consent is required, then it may be obtained by setting in train the process, that is, by making a development application. It is in relation to a development application (which is defined as an application for consent) that a council is empowered to act because it is the consent authority which is invested under s91 with the power to determine that development application. If no consent is required to a development pursuant to the provisions of the relevant environmental planning instrument, then a person will not be in breach of the Act if that person carries out

that development. If no consent is required, then the council has no function in relation to that development. It is not empowered to grant development consent where no development consent is required. If it purports to do so, as happened in the circumstances of this case, its grant of consent is superfluous and has no legal effect. It is not a development consent under div 1 of pt IV to carry out development.” Conclusions The following conclusions may be derived from Precision Rubber Service: • A development consent granted for development which does not require consent is not a valid consent and has no legal effect. If consent is not required, the consent authority has no function in relation to that development. • A person is not bound to comply with the terms and conditions of a development consent where that consent was issued in relation to development that did not require consent at all. • No finding was made that the DA was invalid. Rather, the consent authority had no power to grant a consent and impose conditions where none was required. While a DA must seek approval for some form of “development” as defined rather than simply amending a condition of a development consent, a DA in seeking approval for “development”, which includes part of a building or part of a structure (see definition of “building” in s 4(1) of the EPA Act), may have the effect of changing development (the subject of a previous consent). That is the case even in circumstances where the development being changed, while the subject of a development consent, has not been built. Footnotes 1

CCH comment: “BPSO” is the Blacktown Planning Scheme Ordinance.

¶31-070 Waverley Council v Hairis Architects In Waverley Council v Hairis Architects [2002] NSWLEC 180 (Waverley v Hairis), Talbot J in the NSWLEC heard an application for a declaration in part that a DA could not be made to modify or alter an existing development consent other than by using the modification provisions under s 96 of the EPA Act or by lodging a new DA for the entire proposal. Development consent had been granted in 1998 (Consent DA 133/98) for the redevelopment of the Bondi Diggers Club to provide for a mixed development of 14 residential apartments, car parking and a club. The site was sold and a DA was then lodged in 2002 (Consent DA 138/02) seeking to change the club component to additional apartments and parking. It was common ground that the proposed changes to the 1998 consent were not substantially the same development as originally approved, and hence the proposal could not meet the threshold test for a s 96 modification application. The Council contended that the changes to the club component of the development could only be achieved either by a s 96 modification (a course which was not available as the proposal was not substantially the same development as originally approved) or by a fresh DA for the entire project, not just the club component. In this instance, the redevelopment had not commenced and so the changes sought to the club component related to a component of an approved but unbuilt development. Talbot J held at paragraphs [14]–[15] and [28]–[31] as follows: “14 Mr Tobias QC, who appears on behalf of the respondent, does not agree that there are only two ways open to the respondent whereby it can achieve the change from the club use to the residential use at the lower levels of the building. His contention is that Redwood, as the present owner, is also entitled to make a development application to change the use at the lower levels of the proposed building, together with the appropriate

structural changes. In that case, if the consent authority was so minded, a condition could be imposed pursuant to s 80A(1)(b) of the EP&A Act which provides, inter alia and relevantly to the present case, that a condition of development consent may be imposed if it requires the modification of a consent granted under the Act. According to Mr Tobias, the use of s 96 is a matter of choice. A developer seeking to change an existing consent can pursue an approval either through s 76A or s 96 provided that the limitation imposed by s 96 can be met. 15 Redwood acknowledges that the development, for which consent is sought pursuant to DA 138/02, will not be substantially the same development. Accordingly, no question of choice between s 76A and s 96 arises in the present case. However, it is said, on behalf of the respondent, that any inconsistency between the first and second consent can be resolved by an appropriate condition or conditions pursuant to s 80A(1)(b)) of the EP&A Act. … 28 I agree with Mr Tobias that what is proposed by DA 138/02 is development being for a change in the use of two levels of the planned building and the consequential changes to the structure of the building. It is difficult to perceive any logical distinction in the approach taken by the applicant, which depends upon whether a building is in existence. Most development applications after all, relate to proposals which are not dependant on preexisting development. Admittedly, if the building had been constructed pursuant to DA 133/98 the concept of alteration and changes consequent upon the cessation of a club use and the introduction of a residential use might be more readily appreciated and understood. There is no statutory constraint upon the category of development, as defined, that can be the subject of a development application. In the Court’s view, the distinction between an application to alter a building and an application to alter a right arising from an earlier development consent is not sustainable in the present context. Although it may not be elegant, it is nevertheless, in the Court’s opinion, correct to regard the development application as an application for consent

to carry out specific building works in order to achieve a particular use. 29 If DA 138/02 is granted, conditionally or otherwise, it will give rise to further rights. Thus, if the consent authority decides not to modify DA 133/98 pursuant to s 80A(1)(b) then the owner can proceed with either scheme. On the other hand, the consent authority may exercise its discretion to modify DA 133/98 to be in accord with DA 138/02 so that any inconsistency is removed thereby effectively locking the owner out of the option to revert to the club use. Whether or not the power to impose a condition pursuant to s 80A(1)(b) is exercised by the consent authority is a matter for the exercise of its own discretion. Whether there are anomalies in that approach that cannot be resolved remains to be determined by the consideration and determination of the new development application on its merits. It is, however, not so far as the Court can see, contrary to any principle established by the regime provided in the EP&A Act or otherwise. It may be complicated, inept, inconvenient, inappropriate or conceptually unsound but that does not make it incompetent. 30 There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site. Section 80A(1)(b) of the EPA Act provides a facility for the consent authority to insist on the surrender of an existing development consent. It follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time. The legislature has left the option or election whether to require surrender of an existing consent to the consent authority. There is no warrant to read the power to modify in s 80A(1)(b) as being akin to or in the context of a surrender as Mr Ayling suggests. Just because the result may be little or no different in some cases does not necessarily lead to the conclusion that the power to modify is always to be construed in such a constrained way.

31 If one has regard to s 96 (formerly s 102) as being facilitative in the sense that Bignold J categorised it in Progress and Securities, and as the Court now does, then the making of a separate development application pursuant to s 78A cannot be regarded as a circumvention of the regime established by s 96. The evaluation of a fresh development application involves a significantly more rigorous assessment than prescribed by the regime under s 96.” It will be noted that prior to the enactment of the EPA Act, Pt 12A of the Local Government Act 1919 (LG Act 1919) provided no specific mechanism similar to s 96 of the EPA Act to modify a development consent. Under Pt 12A of the LG Act 1919, the only mechanism available was a DA and it could be used to seek consent for an entire building or part of a building and this course was available even if there were prior consents in force on the same land. Conclusions The following conclusions may be derived from Waverley v Hairis: • A DA may be lodged for a stand-alone development not dependent upon pre-existing development. A DA may also be lodged which is dependent upon pre-existing development or a pre-existing development consent still in force but not implemented. • If a DA is granted which is dependent upon a pre-existing development or a pre-existing development consent still in force but not implemented, the owner may proceed with either scheme. Alternatively, the consent authority may as a condition of the later consent alter a condition of the earlier consent under s 80A(1)(b) to permit only implementation of the later scheme. Whether this is done is a matter for the discretion of the consent authority. • There is no statutory or legal constraint upon the number of DAs which a person may lodge in respect of the same land, nor upon the number of development consents which may be granted in respect of the same land. Thus, there may be a mosaic of development consents extending over the same site or parts of

the site. • A DA may be lodged to change or alter parts of an existing development or parts of a development subject to a development consent which is in force but has not been implemented. Section 96 of the EPA Act is facultative for an applicant, who may seek to alter development using either a s 96 modification application or a new DA.

¶31-080 Principles relating to when a development application is required The key principles derived from the discussion on when a DA is required are as follows: Principle 1: A DA is required in two circumstances: (1) if the proposal relates to development which is SSD under Pt 4.1 of the EPA Act, and (2) if the proposal relates to development which is permissible with consent under an EPI (or is subject to a concurrent application to amend an EPI under s 72I–72K of the EPA Act) and is not SSD, provided that the proposal is not for: • State significant infrastructure under Pt 5.1 of the EPA Act • Exempt Development, and • Complying Development (although a DA may be lodged for Complying Development under s 84A(5)). Principle 2: A DA must seek development consent for “development” as defined in s 4(1) of the EPA Act. A DA cannot be made seeking consent for something which is not “development” as defined, such as an amendment to a condition of a development consent (Gordon & Valich). Principle 3: A DA cannot be made seeking some “in principle” approval without some actual development, nor can it seek approval

to a master plan or concept plan without some actual development although this is now subject to the Staged DA provisions in s 83A (Brooklyn Resort). Principle 4: The task of selecting what should be the subject of a DA and what should be included or excluded is a matter for the applicant and it is not a role for the consent authority. The task of the consent authority is to make a merit determination on the DA as lodged (subject to it being permissible) (Pilkington, Prineas). Principle 5: A development consent granted for development which does not require consent is not a valid consent and has no legal effect. If consent is not required from the body with whom the DA is lodged, that consent authority has no function in relation to that development. As a result, a person is not bound to comply with the terms and conditions of a development consent, where that consent was issued for development which did not require consent at all. In these circumstances, it is not a question that the DA was invalid, rather the consent authority had no power to grant a consent and impose conditions, where none was required (Precision Rubber Service). Principle 6: An applicant is entitled to lodge multiple DAs in relation to the same land for different development options which may or may not be inconsistent from one to the other (Pilkington, Seyffer). Principle 7: An applicant may lodge a DA for a stand-alone development not dependent upon pre-existing development. A DA may also be lodged which is dependent upon pre-existing development, or a pre-existing development consent in force but not implemented (Waverley v Hairis), or, another DA lodged but as yet undetermined (Seyffer). Principle 8: There is no constraint upon the number of DAs which an applicant may lodge in respect of the same land, nor upon the number of development consents which may be granted in respect of the same land. Thus, there may be a mosaic of development consents applying to the same site or parts of the same site (Waverley v Hairis). Principle 9: If a development consent is granted which depends upon

a pre-existing development, or a pre-existing consent still in force but not implemented, or a consent to be obtained in the future, the owner may proceed with any one of the approved schemes. Alternatively, the consent authority may limit the range of options available to an owner by imposing a condition of consent requiring the alteration of a condition of an earlier consent under s 80A(1)(b) of the EPA Act to permit only implementation of a later scheme. Whether this is done is a matter for the discretion of the consent authority (Waverley v Hairis). Principle 10: A DA may be lodged to change or alter parts of an existing development or parts of a development subject to a development consent which is in force but has not been implemented (Seyffer). Section 96 of the EPA Act is facultative for an applicant, who may seek to alter development using either a s 96 modification application (provided it meets the threshold tests for use of s 96) or by a new DA (Waverley v Hairis).

OVERVIEW OF SCHEMES FOR DEVELOPMENT APPLICATIONS — LOCAL GOVERNMENT ACT 1919 AND THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 ¶32-010 Development applications under the Local Government Act 1919 and interim development applications Prior to the commencement of the operation of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 1 September 1980, the scheme for development applications (DAs) was contained in Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919). As has been discussed in previous chapters, Pt 12A authorised the making by the Minister of prescribed planning schemes and Interim Development Orders (IDOs).

The scope of power of schemes and IDOs has also been considered in previous chapters. So far as land subject to planning schemes was concerned, Pt 12A of the LG Act 1919 contained no provisions relating to DAs similar to, or serving the same function as, Pt 4 of the EPA Act. However, in relation to interim development, Pt 12A contained some rudimentary provisions (see following) which provided, in effect, heads of consideration in relation to applications for permission for interim development: • Section 342V provided for the granting of permission by a council under an IDO, including s 342V(1A), which provided: “(1A) Subject to the provisions of any interim development order, the council may, where an interim development application is made, grant the application unconditionally or subject to such conditions as it may think proper to impose or, if it appears to the council that such development would: (a) be in contravention of the interim development order or of the provisions of a scheme, if any, in course of preparation if that scheme had come into operation; or (b) be in contravention of town planning or country planning principles; or (c) interfere with the amenity of the neighbourhood, refuse to grant such application.” • Section 342V(1B) and (2) provided for the deemed refusal of applications for interim development permission not determined after two months, with a capacity for the council to extend the period. • Section 342V(3)–(6) provided a power for the State Planning Authority (SPA) to direct a council to refer an application for interim development permission to it for determination, subject to a right of appeal to the Minister. This was the power for call-in and determination by the SPA and the Minister of DAs under an IDO.

• Section 342V(5) provided rights of merit appeal in relation to applications for interim development permission to the then Local Government Appeals Tribunal (LGAT). • Section 342VA provided (for an applicant for interim development permission) a right to object to the application of certain “minimum requirements” of an IDO, and provided for such matters to be determined by the LGAT. Section 342VA was the precursor of State Environmental Planning Policy No 1 — Development Standards (SEPP 1), with the major difference being that objections under s 342VA were determined by the merit appeal body (then the LGAT) rather than the council as consent authority at first instance as is the case under SEPP 1 and its equivalent provisions in Environmental Planning Instruments (EPIs). • Section 342W provided for the revocation of permissions for interim development approval in narrow circumstances. • Section 342ZA provided special rights of objection to applications for residential flat buildings. It was not limited to applications for interim development permission for residential flat buildings, but extended also to applications for residential flat buildings under a prescribed scheme. Section 342ZA required such applications to be publicly notified and exhibited and provided affected persons a right to object, and if such matters were subject to merit appeal it provided an objector with the right to apply and be granted leave to appear and be heard as if the objector were a party to the merit appeal. The important feature to note in relation to the consideration and determination of applications for interim development permission is that the LG Act 1919 vested that power exclusively with the council (s 342V(1A)), with the exception of a power of call-in and determination by the State under s 342V(3)–(5C). The LG Act 1919 thus contained only rudimentary provisions relating to heads of consideration, deemed refusal, merit appeals, revocation and objections (with the right to object restricted to applications for

residential flat buildings) for applications for interim development approval.

¶32-020 Development applications under planning schemes under the Local Government Act 1919 For DAs under prescribed schemes, Pt 12A is silent, save for the provisions of s 342ZA regarding rights of objection in relation to residential flat buildings. For DAs under prescribed schemes, any machinery provisions are contained in the scheme ordinances themselves. The model is that contained in the County of Cumberland Planning Scheme Ordinance 1951 (NSW) (County Scheme), as amended. The County Scheme provided for the division of responsibility between the Cumberland County Council (as the then State government planning agency, later the SPA) and local councils in cl 5 and cl 6 as follows (including amendments up to 2 December 1966): “Cumberland County Council to be responsible authority for certain purposes 5. In respect of the provisions of this Ordinance relating to: — (a) the acquisition and transfer of land reserved under Division 2 of Part II or under Part IIA; (b) places of scientific or historic interest; (c) the relocation or alteration of the route of any county road indicated on the scheme map; (d) certification under clause 58A of plans showing land as being land to which Division 2 of Part II applies; (e) controlled access order; (f) special uses (University) zone; and (g) any matters in respect of which the Authority is expressly

charged with any power, authority, duty or function; the Authority shall be the responsible authority and shall be charged with the functions of carrying into effect and enforcing such provisions. [Substituted clause, Act No. 7, 1962, s.9(1)(a).] [Amended Act, No. 59, 1963, s.78(a), 8/1/65, 14/5/65.] [Substituted clause, 2/12/77.] Councils to be responsible authorities for certain purposes 6.(1) The Council shall be the responsible authority and shall be charged with the functions of carrying into effect and enforcing the provisions of this Ordinance other than those relating to matters enumerated in clause 5. (2) The powers, authorities, duties and functions conferred and imposed on the responsible authority by this clause shall apply in respect of each area to the council of the area. [Substituted clause, Act No. 7, 1962, s.9(1)(a)] [Amended Act, No. 59, 1963, s.78(b), 8/1/65, 5/2/65, 2/12/66.]” The effect of this division of responsibility was to give local councils the responsibility for consideration and determination of all DAs under the scheme. Clause 27 of the County Scheme provided for heads of consideration of DAs under the County Scheme as follows (including amendments up to 2 August 1957): Clause 41(1) of the County Scheme provided that applications for consent needed to be: • in writing to the responsible authority • by the owner or their appointed representative • with plans in triplicate identifying the land, the current use of the land and the purpose for which development consent was sought, and

• with maps and drawings where the application was to erect a building or carry out work showing sufficient particulars. Clause 41(3)–(5) of the County Scheme contained provisions regarding the granting of consents. Further, the County Scheme contained special heads of consideration for DAs in Foreshore Scenic Protection Areas, Green Belt Area zones, Special Uses zones, land adjacent to a railway or county road and applications for extractive industry (cl 42 of the County Scheme). The County Scheme provided some limitations on the powers of local councils in relation to DAs, with requirements to consult the SPA on certain applications and requirements not to consent to DAs in the Business and Commercial Centre (County) zone having frontage to or within 300 feet of a main or county road, other than residential development of up to four flats. The provisions in the County Scheme in relation to DAs were largely replicated in substance in all prescribed planning schemes with some drafting variation. In later planning schemes, the basic format of the County Scheme was augmented with: • the expansion of the heads of consideration • the increase of special considerations for particular types of DAs, and • the introduction of requirements to advertise certain classes of DAs. However, the scheme for DAs under Pt 12A was unsatisfactory given that different provisions applied to applications under a prescribed planning scheme to those under an IDO, with some machinery provisions in Pt 12A itself, while others were contained within the ordinances. Further, there was an absence of consistency, due to the evolution over time of the statutory provisions relating to: • the formal requirements for an application

• the information required to be submitted by an applicant with an application • the rights of public notification and objection to an application • the heads of consideration to be applied by the responsible authority in determining an application • the scope of power to impose conditions on an approval • provisions relating to amendments to approvals • provisions relating to lapsing of approvals, and • provisions relating to availability of approvals. These deficiencies underlay the decision to include in the EPA Act consistent machinery provisions for the lodgment, information requirements, advertisement, heads of consideration, scope of conditions, as well as machinery provisions past the granting of consent in relation to commencement, lapsing, appeals, amendment, revocation and availability of consents.

¶32-030 Development control under the original Environmental Planning and Assessment Act 1979 In light of the disparate machinery provisions for the lodgment and consideration of DAs under Pt 12A of the LG Act 1919, the EPA Act sought to provide consistent machinery provisions in the Act itself. As the Hon Bill Haigh MP (as Minister Representing the Hon Paul Landa MLC) said in the Second Reading Speech for the Environmental Planning and Assessment Bill 1979 (NSW) in the NSW Legislative Assembly on 14 November 1979: “Part IV of the Environmental Planning and Assessment Bill provides for a uniform code for the processing of all applications to carry out development in accordance with planning instruments.”1

As indicated in the Minister’s Second Reading Speech, the development control provisions of Pt 4 of the EPA Act dealt with how DAs were to be processed in accordance with EPIs. Part 4 relied upon an EPI providing that development of a particular category was permissible with consent and provided the process by which that consent is obtained. Hence, without an EPI providing that a category of development required consent, Pt 4 had no operational effect. Part 4, as originally enacted in the 1979 Act, provided the scheme for development control with only minor amendments until it was replaced in its entirety with the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments), which commenced to operate on 1 July 1998. Part 4 in its original form contained the following key elements: • It provided for the legal status of controls on development by providing that, where an EPI required development consent, a person is not to carry out that development except in accordance with the EPI. It provided that, where an EPI required development consent, a person is not to carry out that development unless a development consent applies and that the development is being carried out in accordance with the development consent and EPI. It further provided that, where an EPI prohibited development, that development could not be carried out (s 76). Thus, s 76 provided that EPIs and development consents have force of law. • It provided the formal procedural requirements for a DA. A DA had the following formal requirements: – A DA could only be made by the owner of the subject land or with the permission in writing of the owner, subject to some exceptions relating to Crown lands (s 77(1) and (2)). – A DA was made to the consent authority in the form and manner prescribed by regulation and with the appropriate fee required by regulation (s 77(3)(a), (b) and (e)). If the consent authority was not the council, the consent authority was to forward a copy of the DA to the council (s 77(4)).

– If a DA was not for “designated development”, then the DA had to contain information demonstrating that the applicant had given consideration to the environmental impacts of the development and set out steps to mitigate any likely adverse impact (s 77(3)(ii)). – If a DA was for “designated development”, it was required to be accompanied by an Environmental Impact Statement (EIS) in the form prescribed by regulations (s 77(3)(d)) and a copy sent to the Department (s 77(5)). Development was designated either by regulation or by an EPI. – A DA could be withdrawn at any time prior to determination by the applicant (s 77(7) and (8)), and regulations could be made relating to amendment or variation of DAs (s 77(6)). – A DA and accompanying documents were not protected by the laws of copyright (s 77(9)). – Part 4 established processes where an EPI provided that a DA could not be determined by a consent authority without the concurrence of a Minister or public authority (s 78). Concurrence could be refused or granted conditionally or unconditionally, but in considering such matters the concurring body was only entitled to take into consideration the heads of consideration contained in the EPI that related to that concurrence required under s 30(3) (s 79). A concurring body had 40 days to make a decision (a period capable of being extended), but if no advice was received within 40 days, a consent authority could proceed to determine a DA (s 80). Where a concurring body granted concurrence, the consent authority had to include any conditions required by the concurring body, but the consent authority was not prevented from imposing additional conditions or refusing consent (s 82). Where a DA required concurrence and consent was granted without obtaining concurrence or without imposing conditions required by the concurring body, any such consent was declared void (s 83).

– If a DA related to “designated development”, the consent authority had to notify adjoining landowners, place a notice on the land and give notice in a newspaper circulating in the locality. These notices were required to indicate that the DA, accompanying documents and the EIS could be inspected at identified premises in a period no less than 30 days after the newspaper advertisement was published (s 84). Minor amendments to a DA for designated development might be excused from the need for re-exhibition or renotification (s 85). – Any person could inspect and make copies of a DA for designated development and accompanying documents during the exhibition/notification period (s 86), and during that period could make a submission to the consent authority. If the submission was an objection, the grounds of the objection had to be specified in the submission. Submissions were required to be sent by the consent authority to the Department and to any concurring body (if there were any) (s 87). A consent authority could not determine an application for designated development until after the expiry of the exhibition/notification period where no objection had been made, and where an objection had been made, after 21 days following the forwarding of the objections to the Department. This time delay was to afford the Minister the opportunity to direct a Commission of Inquiry to be held. If the Minister directed that a Commission of Inquiry be held, the consent authority could not determine the DA. Where the Minister directed that a Commission of Inquiry be held, the DA was then determined by the Minister (not the consent authority) and the call-in provisions in s 101 applied (s 88 and 89). – It provided for heads of consideration for a consent authority in determining a DA in the then s 90. Section 90 (as originally enacted) is set out in Chapter ¶48. – It provided that a DA be determined by the granting of

consent either conditionally or unconditionally or by the refusal of consent (s 91(1)). – It provided in s 101 a power for the Minister to call in DAs for ministerial determination. The power of ministerial call-in of DAs in the original s 101 was broad, involving considerations of expediency and public interest “having regard to matters of significance for State or regional environmental planning”. This scope of power was similar to that relating to the making of SEPPs and Regional Environmental Plans (REPs) and is discussed in Chapter ¶26 (in relation to SEPPs). This call-in power in the original s 101 reflected the comparable procedure in s 342V(3)–(5) of the LG Act 1919 as it applied to applications for interim development prior to the commencement of the EPA Act in 1980. The call-in could be exercised at any time up until the determination of a DA. Where a DA was subject to a call-in, it was processed by the consent authority up to the point of determination (dealing with matters such as notification, exhibition and receipt of submissions) and then forwarded to the Department. The applicant, the consent authority and any objector had a mandatory right for a hearing by a public Commission of Inquiry prior to the DA being determined. However, where a DA was subject to call-in and Ministerial determination under the original s 101, the rights of applicant and objector merit appeal did not apply. This again replicated provisions in the former s 342V(3)–(5) of the LG Act 1919. The policy basis was that, as there was a right to request a public Commission of Inquiry, and the applicant, consent authority and objectors had been provided with a forum to raise issues and concerns and hence, a right of merit appeal after Ministerial determination, this would to a certain extent be a duplication. In addition, there was a policy to quarantine merit decisions made by the Minister against merit review of the Land and Environment Court of NSW (NSWLEC). This was based on a view of maintaining the status of the Minister, and on the basis that use of the call-in power was a

power to be used sparingly when high issues of government policy were at stake in individual DAs. – It proceeded to deal with a range of post-consent issues, including what conditions could lawfully be imposed, notification, date on which a consent became operational, contributions, deemed refusal, merit appeal rights, lapsing of consents, amendments and modification, revocation, and availability of consents. These post-consent issues will be addressed in the next chapter. The scheme of development control under the original 1979 EPA Act is illustrated in Figure 32.1. Figure 32.1: Development control under the 1979 EPA Act

Footnotes

1

NSW Parliament, 14 November 1979, Legislative Assembly Hansard, p 304.

¶32-040 Scheme for development applications following the 1997 Amendments The provisions of Pt 4 of the EPA Act relating to development control were completely repealed and replaced with new provisions introduced by the Environmental Planning and Assessment Amendment Act 1997 (NSW) (1997 Amendments), which commenced operation on 1 July 1998. White paper released by NSW Government The precursor to these changes was the release in February 1997 by the NSW Government of a white paper entitled “Integrated Development Assessment, White Paper and Exposure Draft Bill, Environmental Planning and Assessment Amendment Act 1997” (the White Paper).2 Following a public consultation process on the White Paper, the NSW Parliament passed the Environmental Planning and Assessment Amendment Bill 1997 (NSW). 1997 Amendments — principal changes As they related to DAs, the 1997 Amendments contained the following principal changes: • They excluded from the need to obtain development consent a new category called Exempt Development, where, despite an EPI providing the development was permissible with consent, no development consent was henceforth required. • They introduced a new classification system of DAs, based upon who the consent authority was. As a result, the amendments provided for two types of development within the range of development permissible with consent:

(1) State Significant Development (SSD): where an EPI provided that the Minister was the consent authority, plus other development which was called in by the Minister for determination by the Minister. This replaced and extended the previous call-in powers under s 101 with a new regime for developments where the Minister was the consent authority. (2) Local Development: where an EPI provided the development was permissible with consent and where the development was not SSD, where the consent authority was the Council, public authority or Minister, as provided in the applicable EPIs. A further category (with Local Development) was established, that of Complying Development, which could be carried out providing it complied with predetermined development standards and had a complying development certificate. • For all DAs which required certain additional approvals from other State agencies, it introduced a category of Integrated Development, which sought to address the interrelationship and priority between a development consent and other statutory approvals. • It retained the pre-existing processes for designated development (under which certain DAs required an EIS and afforded rights of objector merit appeals), development which is likely to significantly affect threatened species or their habitat (under which certain DAs required a Species Impact Statement (SIS) and concurrence with the Director-General of National Parks), and advertised development (under which certain DAs were required to be publicly notified). The requirements for SISs (and their predecessors, Fauna Impact Statements) were introduced by Endangered Fauna (Interim Protection) Act 1991 No 66 (NSW), which was replaced by the Threatened Species Conservation Act 1995 No 101 (NSW). • It repealed the provisions of the then Local Government Act 1993 (LG Act 1993), requiring separate building applications and

approvals, subdivision applications and approvals, and certificates, and included substitute provisions in a new Pt 4A of the EPA Act relating to certificates. These provisions sought to address the interrelationship and priority between a development consent and the building and subdivision approval process which, hitherto had been contained in the LG Act 1919 and its successor, the LG Act 1993. Further, it provided that the granting of the new certificates under the new Pt 4A could be by private accredited certifiers in addition to local councils, providing for a level of contestability in the exercise of this function. • It re-enacted, with some variation, the procedural requirements for lodgment and consideration of DAs. Changes following the 1997 Amendments Following the enactment of the 1997 Amendments, the newly inserted Pt 4 was amended by the following Acts: • The Environmental Planning and Assessment Amendment (Affordable Housing) Act 2000 No 29 (NSW)3 This Act authorised an EPI to make provisions relating to affordable housing and authorised the imposition of conditions requiring development contributions or the dedication of land relating to affordable housing. • The Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 No 93 (NSW)4 This Act removed the requirement for approvals under s 68 of the LG Act 1993 relating to places of public entertainment and temporary structure and made them capable of being regulated under the EPA Act. • The Environmental Planning and Assessment Amendment Act 1999 No 72 (NSW)5 This Act altered the provisions of s 96 regarding modifications to

development consents to provide a further pathway for modifications involving minimal environmental impact, and other minor amendments. • The Environmental Planning and Assessment Amendment (Ski Resort Areas) Act 2001 No 126 (NSW)6 This Act made the Minister the consent authority for all DAs in the ski resort areas of Kosciusko National Park. • The Environmental Planning and Assessment Amendment (AntiCorruption) Act 2002 No 44 (NSW)7 This Act enabled the Minister to appoint an environmental planning administrator to a council when this had been recommended by the Independent Commission Against Corruption (ICAC) without the necessity of a public inquiry under the EPA Act. It also enabled the Minister to suspend a decision of a consent authority (including to grant or modify a development consent) if that decision was tainted by corrupt conduct (either as recommended by the ICAC, if criminal proceedings were instituted, or a council, councillor or staff member so admitted), and the NSWLEC was empowered to revoke a decision to grant development consent or modify a consent if it was tainted by corrupt conduct. • The Rural Fires and Environmental Assessment Legislation Amendment Act 2002 No 67 (NSW)8 This inserted s 79BA requiring that development consent could not be granted in relation to land designated as bushfire-prone land (designated on maps prepared by the Commissioner of the NSW Rural Fire Service under s 146) unless the consent authority was satisfied that the development conformed with the “Planning for Bushfire Protection 2001” document or had consulted with the Commissioner of the NSW Rural Fire Service on measures relating to bushfire risks. Additionally, it added to the list of what constituted “integrated development” under s 91, where an authorisation was required under s 100B of the Rural

Fires Act 1997 (NSW) regarding bushfire safety of subdivisions for residential or rural residential purposes or development for special fire protection purposes, such as schools, child care centres, hospitals, retirement homes, homes for persons with disabilities, hotels, motels and tourist accommodation. • The Environmental Planning and Assessment Amendment (Development Consents) Act 2003 No 60 (NSW)9 This Act extended the lapsing period of development consents for SSD to five years and enabled extensions of up to a total of eight years, where they had been delayed by certain legal proceedings. • The Environmental Planning and Assessment (Development Contributions) Act 2005 No 19 (NSW)10 This Act revised the provisions relating to development contributions imposed as a condition of the grant of development consent to permit Planning Agreements and fixed development consent levies of a percentage of the proposed cost of carrying out development, as well as conditions for monetary contribution or dedication of land, authorised by a Contributions Plan. • The Environmental Planning and Assessment (Infrastructure and other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments)11 This Act inserted into the EPA Act a new Pt 3A entitled “Major Infrastructure and other Projects”. It removed from Pt 4 the category of SSD for which the Minister was the consent authority, and inserted in the EPA Act a new and distinct approval system separate from Pt 4 relating to development declared a project to which Pt 3A applies by either a SEPP or by an order of the Minister. Additionally, projects under Pt 3A could also be declared a “critical infrastructure project” for which special provisions applied. It further authorised the approval of concept plans by the Minister. The effect of these changes was to remove the provisions of Pt 4 relating to the SSD. Part 3A constituted a separate approval mechanism distinct from Pt 4. Moreover, Pt 3A

required Ministerial approval for projects even if they were permissible without consent. Hence, Pt 3A did not depend upon the provisions of an EPI, other than a SEPP declaring certain developments to be projects that were subject to Pt 3A. Part 3A was limited in certain respects regarding the power of the Minister to approve prospects, which were also prohibited by an EPI. 2005 Amendments and impact on Part 4 In addition to deleting the category of SSD from Pt 4 and establishing a new and separate approval provision under Pt 3A for projects declared by the Minister to be subject to Pt 3A, the 2005 Amendments made the following changes to Pt 4. They: • inserted s 83A–83D relating to staged DAs and consents and the validity of provisions of an EPI requiring the making of a Development Control Plan (DCP) prior to the carrying out of development • added to the list of other approvals required of a development to constitute integrated development under s 91, the grant of a mining lease under s 63 and s 64 of the Mining Act 1992 (NSW), and the grant of a production lease under the Petroleum (Onshore) Act 1991 (NSW), and • amended provisions relating to the lapsing of development consents under s 95 to provide for a general five-year lapsing period, subject to a capacity for a consent authority to reduce that period, other than in relation to a staged development consent. 2006–2011 Amendments A number of amendment Acts introduced between 2006 and 2011 resulted in the following changes: • The introduction of the Environmental Planning and Assessment Amendment Act 2006 No 8 (NSW)12 added new provisions to Pt 4 relating to development contributions giving the Minister the power to approve, amend or repeal a contribution plan. It inserted provisions relating to specified infrastructure contribution and

established a Special Contributions Areas Infrastructure Fund. It also enabled the Minister to appoint a planning administrator or a panel to exercise functions of a consent, including the exercise of a council’s functions as a consent authority under Pt 4. • The introduction of the Environmental Planning Legislation Amendment Act 2006 No 123 (NSW)13 made some amendments to Pt 3A relating to Major Infrastructure and other projects, and amendments relating to development contributions, lapsing of consent granted with a deferred commencement consent condition, and certificates. It also changed the composition of the Central Sydney Planning Committee and made other amendments to the City of Sydney Act 1988 (NSW). • The introduction of the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW)14 established the Planning Assessment Commission (PAC) (replacing the previous provisions relating to Commissions of Inquiry), joint regional planning panels and Independent Hearing and Assessment Panels of councils. In addition, it provided for Planning Arbitrators, although the provisions relating to Planning Arbitrations were never proclaimed to commence and were subsequently repealed. It also provided for new provisions relating to Crown developments (s 88–89C) and other minor amendments to Pt 4. • The introduction of the Local Government and Planning Legislation Amendment (Political Donations) Act 2008 No 44 (NSW)15 required the disclosure of relevant political donations or gifts where rezoning and development consent (or modification) was sought. • The introduction of the Environmental Planning and Assessment Amendment (Development Consents) Act 2010 No 2516 amended the provisions regarding review and appeals in relation to determinations of a consent authority regarding DAs. • The introduction of the Planning Appeals Legislation Amendment

Act 2010 No 120 (NSW)17 removed the uncommenced provisions relating to Planning Arbitrators, reduced the time for applicants to commence a merit appeal on a DA from 12 months to six months and provided for a right of review where a DA had been rejected by a council. It introduced a conciliation-arbitration scheme into the Land and Environment Court Act 1979 (NSW). • The introduction of the Environment Planning and Assessment Amendment (Part 3A Repeal) Act 2011 No 22 (NSW)18 (which was introduced by the O’Farrell Liberal National Party Government following its election to office in the March 2011 General Elections with a commitment to repeal Pt 3A of the EPA Act) repealed Pt 3A in its entirety. In its place, it introduced into the EPA Act within Pt 4 a new Div 4.1 (s 89C–89L) providing for SSD. SSD is declared by a SEPP or by Ministerial Order (in the latter case, only after the Minister has obtained advice from the PAC on the State or regional planning significance of the development (s 89C)). The Minister is the consent authority for SSD (s 89D) subject to delegations to the PAC. In addition, the 2011 Amendments created a further approval mechanism in the new Pt 5.1 entitled State Significant Infrastructure (SSI) (s 115T– 115ZM), which applies to SSI declared by a SEPP or by order of the Minister (s 115U). In addition, there is a category of critical SSI (s 115V) and a category of Staged Infrastructure Applications for approval of concept proposals for proposed infrastructure. In large measure, the new Pt 5.1 is the former Pt 3A renamed and repositioned in the EPA Act with its scope limited now to “infrastructure”, as defined in s 115T. The new Pt 5.1, like its predecessor Pt 3A, has precedent over Pt 4 and 5 (s 115ZF(1)). Thus, the amendments to Pt 4 on Development Assessment, inserted by the 1997 Amendments, have largely retained their original structure. The major change relates to the exclusion of SSD and the establishment of a new approval process for Major Infrastructure and Other Projects under Pt 3A in 2005, and the reinsertion of SSD in Pt 4.1, and the renaming and repositioning of Pt 3A as a new Pt 5.1 dealing with SSI with a somewhat more limited application to

infrastructure and the exclusion of other projects in 2011. Footnotes 2

NSW Government, Department of Urban Affairs and Planning, February 1997, Integrated Development Assessment White Paper and Exposure Draft Bill, Environmental Planning and Assessment Amendment Act 1997, Sydney, ISBN 0 7210 9092 6.

3

NSW Parliament, 20 June 2001, “Second Reading Speech”, Legislative Assembly Hansard, p 14882ff.

4

NSW Parliament, 20 June 2001, “Second Reading Speech”, Legislative Assembly Hansard, p 14882ff.

5

NSW Parliament, 27 October 1999, “Second Reading Speech”, Legislative Assembly Hansard.

6

NSW Parliament, 30 November 2001, “Second Reading Speech”, Legislative Assembly Hansard, p 19228ff.

7

NSW Parliament, 18 June 2002, “Second Reading Speech”, Legislative Council Hansard.

8

NSW Parliament, 30 May 2002, “Second Reading Speech”, Legislative Assembly Hansard.

9

NSW Parliament, 17 October 2003, “Second Reading Speech”, Legislative Assembly Hansard, p 4100ff.

10

NSW Parliament, 8 December 2004, “Second Reading Speech”, Legislative Assembly Hansard.

11

NSW Parliament, 27 May 2005, “Second Reading Speech”, Legislative Assembly Hansard, p 16332ff.

12

NSW Parliament, 28 February 2006, “Second Reading Speech”, Legislative Assembly Hansard, p 20731ff.

13

NSW Parliament, 24 October 2006, “Second Reading Speech”, Legislative Assembly Hansard.

14

NSW Parliament, 15 May 2008, “Second Reading Speech”, Legislative Assembly Hansard, p 7695ff.

15

NSW Parliament, 18 June 2008, “Second Reading Speech” Legislative Council Hansard.

16

NSW Parliament, 22 April 2010, “Agreement in Principle Speech”, Legislative Assembly Hansard.

17

NSW Parliament, 11 November 2010, “Second Reading Speech”, Legislative Council Hansard.

18

NSW Parliament, 16 June 2011, “Agreement in Principle Speech”, Legislative Assembly Hansard, p 93ff.

¶32-050 Development Assessment Forum report As the principal interface between the planning system and the public is the development control system, its operation is a barometer for the success of the planning system, and it is often the focus of reform efforts. The local government and planning Ministers at Commonwealth, State and Territory levels, together with the Commonwealth Government’s Development Assessment Forum (DAF), have explored improvements in the development assessment system culminating in the DAF report “A Leading Practice Model for Development Assessment in Australia” (March 2005). This report identified 10 “leading practices” or performance indicators which a

development assessment system should exhibit, as presented in Table 32.1. Table 32.1: Leading practices/performance indicators

In addition, the DAF proposed six development assessment tracks or pathways. The report stated:19 “The six development assessment tracks proposed by DAF are: • Exempt • Prohibited • Self assess • Code assess • Merit assess • Impact assess. Each track will be consistent with the ten leading practices and provide a process of assessment that is relevant to the project’s complexity and impact on the built and natural environments. The track in which an application is to be assessed must be clear

before an application is submitted.” The 10 leading practices identified by the DAF report are clear and well-formulated, particularly in relation to leading practices 1–3 and 7– 8 which relate primarily to issues of professional practice rather than the legislative scheme within which practice occurs. The suggestion of six assessment pathways to be established by legislation raises issues relating to precise definition. However, it highlights an issue fundamental to the operation of the development control system, namely that the planning system deals with vast numbers of DAs, the overwhelming majority of which are simple, minor and uncontroversial but at considerable cost in terms of staff and resources. Such a conclusion has been starkly obvious for a long period of time, but action to address the issue has generally been ineffective, despite oft expressed good intentions. Footnotes 19

ibid, p 4.

¶32-060 Dobry Report The conclusions raised in the DAF report have also been arrived at in the United Kingdom (UK) as far back as 1975. The Dobry Report on “Review of the Development Control System” made the following findings:20 “1.9 The system is potentially very good, but its procedures do not ‘adequately meet current needs’ 1.10 The planning system has achieved a great deal. The countryside for instance, has been well defended, considering the enormous pressures upon it; the impact of suburban sprawl could easily have been catastrophic. 1.11 Regrettably, the system is slow, even at times desperately slow, because its procedures are, as at present used, too

cumbersome. 1.12 Every year a colossal planning machine deals with hundreds of thousands of applications. About 70% of them can be classified as simple, minor or uncontroversial. Over 80% of all applications are granted. The Department of the Environment struggles with thousands of appeals. Every year 75% of them fail and in many enforcement appeals a planning permission is granted. All this must involve much wasted effort. And the present position is about the same as it was, for example, 10 years ago. 1.13 Perhaps the greatest defect of planning control is its failure to identify its own failings. This report, therefore, will concentrate on offering practical solutions to the administrative defects of development control which have been ascertained in the course of this review. 1.14 Planning control ‘can be improved’ if the system is set free from the task of examining, at inordinate length, applications and appeals, the results of which were always predictable. It should be possible to deal with applications much more quickly and efficiently. The way to achieve this is not to relax controls but to introduce different procedures for (A) simple and (B) controversial applications. (I call them ‘Class A’ and ‘Class B’.) Class A will comprise all applications which comply with an up-to-date development plant and all simple or minor applications to which there are no significant objections. This arrangement will not only ensure that ‘minor’ developments are quickly dealt with, but would at last co-ordinate plan-making with development control. This was always the intention behind the 1947 Act.” In his report, George Dobry QC emphasised (with regard to the UK planning system in 1975) that issues concerned the practice and performance within the system, rather than the system itself. His approach was expressed as follows:21 “1.27 The basic approach. This is my final report. It gives my basic approach and many detailed recommendations. It is the former which matters most. To sum up: —

1.28 First, our modern planning system dates from 1947. Since then, a series of gradually implemented reforms have produced changes far more radical than is generally appreciated. Some of these reforms have resulted from new laws, others from changes in administrative practice. Many of these have been for the better, but overall the planning machine is too cumbersome and complex. 1.29 Second, as to whether the British planning system should be dramatically altered, I conclude that it should be retained but made more rational and efficient, especially in the field of development control which has the greatest impact on the ordinary man. 1.30 Third, an ever-increasing public interest and involvement in planning is altering the whole process. Paying lip-service to its importance only alienates the public: the proper function of public involvement should be clearly understood, encouraged but not exceeded. 1.31 Fourth, as to the individual rights, the present balance is basically correct and should be maintained but we must guard against becoming over-sensitive about this. As it is we have to cope with too many formalities. 1.32 Fifth, positive planning means not only preservation of the countryside and in towns, but also positive encouragement, and help for, development. This cliché may seem hardly worth repeating, yet there are still too many who continue to ignore it, causing serious harm to the economy and to planning. 1.33 Finally, it is not so much the system which is wrong, but the way in which it is used. The successful implementation of the proposed measures depends on a change of attitude towards a more positive and constructive approach on all sides. It may be too much to expect all attitudes to change; even if some do so this Report may have served its purpose.” These observations in the Dobry Report provide an important backdrop to any consideration of the development control process in

New South Wales. In the following chapters, consideration will be given to Pt 4 in relation to development assessment, SSD in Pt 4.1 and SSI in Pt 5.1. Footnotes 20

UK Government, Department of the Environment. Welsh Office, 1975, Review of the Development Control System, Final Report, prepared by Dobry, G (QC), HMSO, London, p 5.

21

ibid, p 8–9.

RETROSPECTIVITY AND DEVELOPMENT APPLICATIONS ¶33-010 Can consent be sought and obtained retrospectively for development already carried out? Previously, it has been noted that a development application (DA) can only be sought where the applicant is seeking consent to carry out “development” as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The issue arises as to whether consent can be sought and obtained retrospectively, that is, for development that has already been carried out, or whether consent can only be sought prospectively, that is, for development proposed to be carried out in the future if consent is obtained. Section 76A(1) provides that if an Environmental Planning Instrument (EPI) provides that development is permissible with consent, a person must not carry out the development unless development consent has been obtained and remains in force and the development is carried out in accordance with the terms of the development consent.

Prior to the enactment of the EPA Act, the issue of the retrospective grant of approvals was considered under the Local Government Act 1919 (NSW) (LG Act 1919), in particular, (in relation to building approvals) in Pt 11 and (in relation to planning approvals) Pt 12A.

¶33-020 Tennyson Textile Mills Pty Ltd v Ryde Municipal Council In Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR 231 (Tennyson Textile Mills), Sugerman J heard a merit appeal against the Council’s refusal of three building applications for alterations and additions to factory premises in land zoned as Living Area in which development for industrial purposes was prohibited. The factory existed prior to the introduction of planning controls and hence, was protected as “existing use” under cl 35 of the County of Cumberland Planning Scheme Ordinance (NSW) (County Scheme). Sugerman J in the Land and Valuation Court of NSW dealt with the appeal on the basis of both an appeal regarding a building application and a DA. Sugerman J held at p 232–233 as follows: “In so far as the appeals relate to building approval under Part XI of the Local Government Act 1919–1951, the Court can make no order. The appellant has chosen to do the whole of the work included in two of the applications, and a considerable portion of that included in the third, notwithstanding the absence of approval. The Council’s approval must be obtained ‘beforehand’ (s.311). The Court’s decision is to be deemed ‘the final decision of the Council’ (s.341(3)), which can only be a decision given ‘beforehand’. The whole scheme of the Act is directed to the necessity for obtaining approval before work is commenced. The work here in question was done in contravention of Part XI and, more particularly, of s.311, and nothing can be done by this Court to affect the situation or its consequences. In so far as the appeals relate to development approval under the County of Cumberland Planning Scheme Ordinance, the question

depends upon the provisions of that of that Ordinance, and in particular upon cl. 35(1)(a) thereof. The words used in cl. 35(1)(a) are ‘the responsible authority … approves the alteration, enlargement, extension or addition.’ Approval, in its ordinary sense, is not limited to an approval given beforehand. The word is equally capable of referring to an approval of something which is being done or has already been done. Parts III and IV of the Ordinance do not readily disclose, so far as this point is concerned, the underlying scheme to which they are intended to give effect, and it is impossible to say with confidence whether or not the Ordinance here contemplates an approval which must be given beforehand. It seems to me that the Court must give the phrase ‘approves the alteration’, &c. in cl.35(1)(a) its ordinary meaning, in the absence of any sufficient indication furnished by the Ordinance that it was intended to have some more restricted meaning. The golden rule of construction is that ‘in construing all written instruments, the [p 233] grammatical or ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or to some repugnance, or to some inconsistency with the rest of the instrument’ — per Lord Wensleydale in Tehlusson v Rendlesham. There is no manifest absurdity in a power to approve something already done; on some views of the matter it is not at all inconceivable that responsible authorities were intended to have such a power. The effect of the provisions of the Ordinance, or the scheme or purpose which, considered as a whole, they embody, or evidence, does not appear with sufficient clarity to be such that to give the words in question their ordinary meaning would lead to some inconsistency with the rest of the Ordinance. And when the Principal Act with which the Local Government (Amendment) Act 1951 containing the Ordinance is to be read and construed, refers to approval in dealing with a cognate subject matter, it expressly says ‘beforehand’ (s.311). I conclude that the Court must consider these appeals on their

merits in so far as they relate to approval under cl.35 of the County of Cumberland Planning Scheme Ordinance.” Thus, Tennyson Textile Mills is the authority for two propositions under the LG Act 1919, namely: (1) a council cannot grant approval to a building application under Pt 11 of the LG Act 1919 where the building work has already been carried out as the Act required approval “beforehand” under s 311, and (2) an approval to alter an existing use under the County Scheme can be granted even though the alteration has already been undertaken as there is no clear legislative intention to so restrict the power to approve an alteration of an existing use.

¶33-030 Lowe v Mosman Municipal Council In Lowe v Mosman Municipal Council (1953) 19 LGR (NSW) 193 (Lowe v Mosman), Sugerman J in the Land and Valuation Court of NSW considered as a preliminary issue whether a merit appeal could be granted in relation to both a building application under Pt II of the LG Act 1919 and a DA under the County Scheme for a lattice screen, the erection of which was completed by the time of the appeal to the Court. Hence, Lowe v Mosman differed from Tennyson Textile Mills in that the relevant planning application was a DA under the County Scheme and not an application to alter an existing use. Sugerman J held at p 194–195 as follows: “Two questions were argued by Mr Rath, but for the present I confine myself to the first of them. This arises out of the circumstance that the erection of the lattice screen had commenced before application was made to the council for its approval under Part XI of the Local Government Act and its consent under the County of Cumberland Planning Scheme Ordinance. Construction of the screen continued while the matter was under consideration by the council. Ultimately, as I have said, the council intimated that it refused permission. To what stage the construction had advanced at that point does not appear,

although it is probable, from the correspondence which passed between the parties, that it had proceeded to an advanced stage, and possible that it had by then been completed altogether. However that may be, it is quite clear that the erection of the screen has now, for some time, been completed. The question which arises is the effect of those circumstances upon the rights of the appellant in this appeal, a question which involves consideration of provisions of the Act and Ordinance and of the decision of this Court in Tennyson Textile Mills Pty Ltd v Ryde M.C. ((1952) 18 LGRA 231), in which a similar, but not identical, question arose. In the Tennyson Textile Mills Case the Court dealt with two matters, namely the effect of the fact that the work had been completed in relation to an appeal purely under s.341 of the Act in respect of the council’s refusal of building approval under Part XI, and the effect of the fact that the work had been completed in relation to an appeal under ss. 342N and 341 against the refusal by the council of approval under the relevant provision of the County of Cumberland Planning Scheme Ordinance which, in that case, was cl. 35 of that Ordinance. On the first of these two matters the Court held in the Tennyson Textile Mills Case that the appellant could not succeed in an appeal to the Court against the refusal of the building approval under Part XI where the building in question had already been erected, and, as I understand the matter, the application of that to this case is not questioned. As to the second matter, the question of approval under the Ordinance, the Court was of the opinion, for reasons expressed at pp. 232–233 of the report, that that appeal might proceed and must be considered on its merits. As I have said, the Tennyson Textile Mills Pty Ltd’s Case was a case in which the provision of the Ordinance involved was cl. 35. In the present case it is clear that the only provision of the Ordinance which can be involved, as a foundation for the appellant’s application to the council for development approval, is cl. 27. …

[p 195] … I return to point out that where, as I have said, the Tennyson Textile Mills Case was a case under cl. 35 of the Ordinance, the present is of necessity a case under cl. 27 of the Ordinance. The conclusion which was reached in the Tennyson Textile Mills Case as to the meaning of the word ‘approves’, and in particular as to whether it extended to approval given after the work in question had been done, was largely related to difficulties of construction, occasioned by the structure and provisions of cl. 35, and by the question of what the position of cl. 35 was in relation to the scheme as a whole and more particularly in relation to cl. 27 of the scheme with which it appeared, in certain respects, to overlap. That conclusion may be open to be reconsidered in the light of further argument which may help to resolve those difficulties, but in any event no such particular difficulties affect the construction of cl. 27 of the Ordinance and the other clauses associated with it, which are the backbone of much of the scheme. … Clause 28 is in the form of a prohibition. It provides, inter alia, that: — ‘(1) A building shall not without the consent of the responsible authority be erected or used in any zone for any purpose shown opposite that zone in the fourth column of the Table to cl. 26’; and similar provision is made in cl. 29(2) with respect to the use of land. Those provisions do not suggest that the consent referred to in sub-clause (1) was a consent which might be obtained at any time, including one which might be obtained retrospectively, but rather that what was required, in order that an infringement of the prohibition should not be committed, was that a consent should first be obtained. Then we come to cl. 27 itself which provides: — ‘Where application is made to the responsible authority for its

consent to the erection or use of a building in a zone in which a building of the type proposed’ (I emphasize those words) ‘may be erected and used only with its consent, the responsible authority shall decide whether to give or withhold consent, and in the former event what conditions, if any, shall be imposed.’ … All the provisions here form part, as I have said, of one consistent scheme which, taken with the whole purpose of the Ordinance and with the heading to Part III seems to me to be directed to the control of development by means of the requirement of consideration of many forms of proposed development by responsible authorities and the obtaining of their consent before the development proceeds. And that appears to be essential to the effective administration of legislation of this character. Here, the, notwithstanding that perhaps in its widest sense, ‘consent’ may refer to that which is past as well as to the present or to the future, and notwithstanding that the word ‘beforehand’ is not expressly used as it is in s.311 of the Act, there appears to me to be ample indications of intention to be gathered both from the character and purpose of the scheme as a whole, and from expressions used in relevant portions of it, that what was intended, where reference is made to ‘consent’ in cll. 26, 27, 28 and 29 was a consent to be first sought and given. … The whole of the work has been completed before the matter has come before the Court for decision. I do not see how I can in this case, any more than in the Tennyson Textile Mills Case in relation to the Part XI approval, approach the matter otherwise than on the same footing as that on which the council would be bound to approach it if there were submitted

to it an application for consent under cl. 27 in respect of a building which had already been completely erected. So approaching the matter, it appears to me for the reasons I have given that the application made is for a consent which is not the kind provided for by the Ordinance. It is not a consent to a future or proposed building which, in my opinion is what the Ordinance contemplates, but is a consent to that which has already been done. For that reason alone it appears to me that this appeal could not succeed.” Thus, in Lowe v Mosman, Sugerman J held that the power to grant approval to a DA under the County Scheme was prospective only and did not permit the granting of development consent to development which had already been undertaken. It will be noted that Sugerman J’s finding is based on an interpretation of the provisions of the County Scheme and in particular: • a prohibition on undertaking development without consent • references to a proposed building and proposal, and • the use of words pointing to the future, such as “to be used” or “the purpose for which consent is sought”.

¶33-040 Lirimo Pty Ltd v Sydney City Council The issue of retrospectivity of DAs was considered by Cripps CJ in the Land and Environment Court of NSW (NSWLEC) in Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47 (Lirimo). This case involved a merit appeal against the refusal by Council of a DA to convert an existing building to strata title home units. After the DA was lodged, but prior to its determination, certain works were undertaken. The DA was lodged prior to the commencement of the EPA Act, but following the enactment of the EPA Act, savings and transitional arrangements removed the DA provisions in prescribed planning schemes and in their place applied the new provisions under the EPA Act. Cripps CJ held at p 52–53 as follows: “It was submitted by the council that it was not open to the council

or the court to grant development consent or building approval because the demolition work referred to above required development consent and building approval and as neither had been obtained before the work was done, neither could be obtained thereafter. Previous decisions of the Land and Valuation Court established that building approval could not be granted in respect of a building already erected because of the prohibition on building without approval ‘beforehand’: see s 311 of the Local Government Act and Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1953) 19 LGR (NSW) 231. In Lowe v Mosman Municipal Council (1953), it was held that consent could not be obtained under the County of Cumberland Planning Scheme Ordinance for the erection of a building which had already been erected. In that case it was suggested that similar considerations would probably apply to an application for development consent to the use of land after such use had commenced, at least in respect of such landuse up to the date of hearing. There are, however, many instances where development consent has been granted by the court notwithstanding that the development the subject of the consent was completed prior to the consent being granted. The cases dealt with the applications for the erection of buildings as well as for the use of land, eg see Ellmoos v Sutherland Shire Council (1962) 79 WN (NSW) 709; 8 LGRA 16; Kerslake v Ryde Municipal Council (1970) 19 LGRA 318; Holland v Bankstown Municipal Council (1956) 2 LGR 143 and Lux Motor Auctions Pty Ltd v Bankstown Municipal Council 20 LGR (NSW) 178. Often the matter was not argued. In Lux Motor Auctions Pty Ltd v Bankstown Municipal Council, Hardie AJ appeared to take the view that the fact the subject land had been used prior to the date of application for the purpose stated did not preclude the applicant from making a proper application for consent. The matter seems to have been left in abeyance since those early days. It was suggested that any doctrine of retrospective consent would be inimical to the effective administration of town planning legislation. The occasions when

consent for the erection of a building or the use of land has been granted notwithstanding prior unauthorised work or use does not seem to have seriously impaired the efficacy of the legislation. But whether that be so or not, it is difficult to see what town planning advantage is secured by allowing consent to be given for future use of land but denying it for future use of a building, the erection of which required consent. The removal from the relevant planning schemes of the local successors to cl. 27 of the County of Cumberland Planning Scheme Ordinance (the wording of which was the basis for the conclusions referred to above) and the inclusion of s.124 of the Environmental Planning and Assessment Act lead me to the view that an applicant is not precluded from obtaining a proper and valid application [p 53] for consent to the use of land or the erection of a building notwithstanding the use or erection preceded the application for consent. Section 124 provides that where a breach of the Act would not have been committed but for failure to obtain a consent, injunction proceedings may be adjourned in order that consent may be obtained. The consent there referred to ought not be confined, in my opinion, to the use of the land. Section 90 which lists the matters the consent authority is required to take into consideration does not, unlike its predecessors in local schemes, refer to ‘proposed’ development. In the present case, the work that was carried out was demolition work. This did not, in my opinion, require approval under Pt XI of the Local Government Act nor did it require the granting of development consent. In any event, the demolition work was clearly severable from the work the subject of the proposal before the council for development consent and, as I am asked to assume, building approval. Accordingly, there is no impediment to the grant of consent or approval.” In Lirimo, Cripps J in the NSWLEC noted that the decision in Lowe v Mosman had not been consistently applied. Cripps J questioned the policy underlying the decision in Lowe v Mosman, and he further

agreed that, with the enactment of the EPA Act, the new legislative scheme did not prohibit the granting of development consent retrospectively. However, as the offending work in Lirimo was demolition, which at that time required neither building approval nor development consent, the issue of the power to grant retrospective development approval was not necessary to be determined in the case. Thus, after Lirimo, the correctness of Lowe v Mosman was questioned insofar as it related to applications involving consideration of the EPA Act.

¶33-050 Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council This issue was further considered by Talbot J in the NSWLEC in Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 (Steelbond). This case dealt with an application to amend a building approval under s 106(1) of the Local Government Act 1993 (NSW) (LG Act 1993) to seek approval for a pergola which had been erected 620 mm higher than the original building approval required. The Council had refused the application based on its view that it could not grant a retrospective approval. There appeared to be no DA or modification involved in the proceedings. Talbot J agreed to determine, as a preliminary question of law, whether an application could be made to amend an approval after the completion of the building work in question. The applicant in this case was unrepresented and appeared in person. Talbot J held at p 194–195 as follows: “It is unfortunate that the issue falls to be determined without full argument from both parties as there could be matters applicable to the question which are not brought to the attention of the Court for its consideration. However the question must be resolved in order to bring about a proper resolution of the appeal. It has long been established that the whole scheme of Pt XI of the Local Government Act 1919 (the former Act) was directed to the

necessity for obtaining approval before work is commenced because of the prohibition on building without approval obtained ‘beforehand’: see Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231. The same constraints have not been applied by the Court in respect of applications for development consent to the use of land or buildings. The Court has not been reluctant to grant consent to the prospective use of a building notwithstanding that development consent may not have been obtained to the erection of that building or to its prior use. Support for this proposition can be obtained from the obiter remarks made by the former Chief Judge of this Court in Lirimo Pty Ltd v Sydney City (1981) 66 LGRA 47, and the authorities cited by him (at 52). His Honour, however, also made specific reference to consent for the erection of a building as well as for the use of land. I can find no other authority for the proposition that where the erection of a building has already been completed, the Court has been prepared to grant development consent for the erection of that building. Section 76 of the Environmental Planning and Assessment Act 1979 (NSW) prohibits a person from carrying out development otherwise than in accordance with that section and that where consent is required, until such time as that consent has been obtained and is in force. It is difficult to read that section as having anything other than a prospective effect. As Cripps J in Lirimo attached some significance to the provisions of s 124 of the Environmental Planning and Assessment Act 1979 (NSW) it should be noted [p 195] that s 676 in chapter 17 of the new Act is to the same effect as s 124 (1), (3) and (4). Although s 124 of the Environmental Planning and Assessment Act 1979 (NSW) contemplates that a consent might be obtained, notwithstanding an existing breach of the Act, the section by its terms does not necessarily condone retrospective approval. The provisions of s 124(3)(b) suggest that

subs (3) is directed only to those instances where the breach is a continuing one rather than one that has been completed. If it is to be asserted that the former Chief Judge intended to go beyond that proposition in Lirimo then, with respect, I cannot agree with him. In the present case, it is not necessary to finally resolve the question in respect of an application for consent under the Environmental Planning and Assessment Act 1979 (NSW). Consistently with the reasoning in Tennyson Textiles there is no power to grant an approval pursuant to chapter 7 which would have the effect of overcoming a breach of s 68 already committed. That reasoning which concluded that the court lacked jurisdiction to determine an application for a building permit for the erection of a building which has already been erected can be applied to an application made under the new Act. The wording of s 78 confirms that conclusion by referring to the applicant as a person seeking to carry out the activity. That is to say that the application is directed only towards the prospect of doing or carrying out the subject activity.” Talbot J’s discussion of the question of the retrospective grant of planning approvals in Steelbond is, like Cripps J’s discussion in Lirimo, entirely obiter dicta and unrelated to the issue before the Court for determination. Nonetheless, Talbot J expressed clear disagreement with Cripps J in Lirimo, and he asserted that the EPA Act does not permit the granting of development consent for development already undertaken.

¶33-060 Herbert v Warringah Council In Herbert v Warringah Council (1997) 98 LGERA 270 (Herbert), Sheahan J in the NSWLEC considered a preliminary question of law on a merit appeal as to whether a council has the power to approve an application to modify a development consent (then under s 102 of the EPA Act, which was replaced by s 96 after the Environmental Planning and Assessment Amendment Act 1997 No 152 (1997 Amendments) where the works have already been carried out. Sheahan J reviewed the previous decisions on this question in some

detail. Sheahan J held at p 273–278 as follows: “The relevant cases In order to answer the question posed in these proceedings it is necessary and appropriate to deal in some depth with the relevant cases, namely Connell v Armidale City Council (unreported, Land and Environment Court of New South Wales, Pearlman J, File No 10272/96 and 20068/96, 25 September) (Connell), Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 (Steelbond), Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47 (Lirimo), John Bruce & Partners Pty Ltd v North Sydney Municipal Council (1984) 55 LGRA 238 (Bruce) and various older authorities, including Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231 (Tennyson), Lowe v Mosman Municipal Council (1953) 19 LGR (NSW) 193 (Lowe), the cases cited by Cripps J in Lirimo, and one other decision of Cripps J by way of contrast to Lirimo, namely Longa v Blacktown City Council (1985) 54 LGRA 422 (Longa). Tennyson … [Author note: This case (Tennyson) has been previously summarised at ¶33-020 and relevant extracts have been provided. Hence Sheahan J’s summary is not included.] Lowe … [Author note: This case (Lowe) has been previously summarised at ¶33-030 and relevant extracts have been provided. Hence Sheahan J’s summary is not included.] [p 274] Lirimo … [Author note: This case (Lirimo) has been previously

summarised at ¶33-040 and relevant extracts have been provided. Hence Sheahan J’s summary is not included.] [p 275] … There are four cases referred to in the above passage as relied upon by Cripps J in reaching his conclusion: Holland is another decision of Sugerman J, and the other three cases are decisions of Hardie J. In Holland Sugerman J held that retrospective consent may be given to a use, but that consent operates prospectively and does not extinguish the earlier breach. In Kerslake and Lux there were also changes of use, but no building work was required to effect the change in each case. Ellmoos was an appeal to the Land and Valuation Court from a District Court judge’s overturning of a demolition order which Council had placed on ‘a building erected or altered without prior approval’. Hardie J simply asserted that s 311 required consent beforehand (his emphasis) and then considered the key question, namely whether or not the District Court decision operated as a consent at all. I find these cases unhelpful on the question posed in this matter. The decision in Lirimo was given in 1981, but was not reported until 1988. The editor of the 1988 Report notes that Cripps J subsequently applied Tennyson in Longa, without reference to Lirimo, in respect of existing building work for which building approval had not been obtained. The editor opines (at 48) that Lirimo ‘should be read as relating to existing building work, and prior use of land, for which required development consent has not been obtained’. (It ought perhaps also be noted that the editor appeared for the party Lirimo in that

case.) I believe that the Reporter’s remarks in respect of Lirimo are probably sound advice, and that the cases on which Cripps J relied in Lirimo do not strictly concern the real question involved in this case. Longa In Longa, a dilapidated house on floodprone land was renovated and a verandah removed. The householder, when told he could not undertake any building work on the land, purchased a kit home and began to construct it next to the existing house so as to enlarge it. Applying Tennyson, Cripps J held that neither the Council nor the court had [p 276] power to approve unauthorised work which had already been carried out, as the relevant section (again s 311 of the Local Government Act) required approval ‘beforehand’. In the only comment on the subject matter concerned in this case, Cripps J relied on Tennyson when he said (at 423–424), ‘It is therefore not open to the council or the court to approve the structure already erected on the land’. Bruce Bruce is a decision of another foundation judge of this court, Perrignon J, and the question regarding s 102 was argued again by Sir Maurice Byers QC, with other parties being represented by counsel and solicitors well regarded in the jurisdiction. The modification sought to the relevant consent in Bruce was a reduction in the amount of open space dedication, required by the conditions, from 8766 m2 to 1720 m2. Perrignon J held that the modification was one of detail, since the development would remain substantially the same, and, in the course of his judgment (at 242), said:

‘What s 102 was designed to do was to enable the consent authority to modify details of the consent where it is satisfied that the development to which the consent as modified relates is substantially the same development as the original development. Section 102(1) thus operates upon an existing development consent and all that it empowers is a modification of details. The terms of s 102(4) demonstrate that such a modification is not to be treated as a fresh development consent.’ Steelbond … [Author note: This case (Steelbond) has been previously summarised at ¶33-050 and relevant extracts have been provided. Hence Sheahan J’s summary is not included.] [p 277] … Connell In Connell the applicant sought amendment of a building approval pursuant to s 106 of the Local Government Act, and amendment of a development consent under s 102 of the EPAA, regarding the erection of a residential dwelling in Armidale. Both the layout of the residential building and its position differed from those approved by the Council. While it is true that Mr Connell appeared for himself, the Chief Judge gave detailed consideration to the issue at hand. Relevantly for the purposes of this matter, the Chief Judge noted that the legal issue involved was important, and that it was ‘somewhat unfortunate’ that she had to make her decision without ‘as full an argument on this issue as I would wish’. The solicitor for the Council argued that the proper construction of the relevant legislation was prospective in operation and that the court therefore had no jurisdiction where the work had already

been carried out. The learned solicitor relied upon Steelbond and the Chief Judge applied the above-quoted reasoning of Talbot J in that case to the matter at hand. Her Honour acknowledged that Lirimo was ‘authority for an opposite conclusion’ but noted that the remarks of Cripps J in that matter were obiter. Again her Honour relied upon the reasoning of Talbot J in Steelbond and chose not to follow Lirimo. The arguments The Council relies essentially on the Chief Judge’s decision in Connell. The Council also relies on the consistency among relevant sections of the EPAA, regulations made under that Act, and SREP 12 — Dual Occupancy, indicating that consents under the Act are ‘prospective’ and deal with works or uses which are future in character, in that they are described as ‘proposed’ or ‘likely’. One issue raised during this hearing was whether in the relevant cases the issues were argued ‘professionally’ as some involved litigants in person. The applicant argues that the relevant legal issues were not ‘professionally’ argued in Connell, or in Steelbond on which the Chief Judge, at least in part, relied, whereas they were ‘professionally’ argued in earlier relevant cases such as Lirimo and Bruce. So far as the question of the ‘professional argument’ of the key point is concerned, I note that prominent counsel such as Byers, Hope, Rath, Toose, Morling, O’Keefe and Hemmings were variously involved in the relevant cases. [p 278] Conclusion I have examined all the relevant authorities on the question posed in these proceedings.

I am satisfied that the reasoning underpinning the decisions of Sugerman J in Tennyson and Lowe, Cripps J in Longa, Talbot J in Steelbond and Pearlman J in Connell, is clearly preferable to the obiter dicta of Cripps J in Lirimo. The relevant reasoning of Perrignon J in Bruce is no more than a chance obiter remark on a related subject, and is, in any event, not inconsistent with the later decisions of Talbot J and Pearlman J. The cases clearly find that s 102 requires approval of works prospectively, and cannot be used to amend a consent where the works referred to in the application have already been carried out.” It is noted that in Herbert, Sheahan J was considering the power to amend a development consent, not the power to grant a development consent or to grant a building approval. Sheahan J cited authorities relating to all the various types of approval and appeared to approach the question as one of general legal principle that all such approvals are required prospectively, although this conclusion was limited to the power to amend a consent (then under s 102 of the EPA Act, now s 96 after the 1997 Amendments).

¶33-070 Tynan v Long and Newcastle City Council (No 2) The issue was referred to by Handley JA in the NSW Court of Appeal in Tynan v Long and Newcastle City Council (No 2) (1998) 102 LGERA 119 (Tynan) at p 121 where His Honour said: “Miss Blackman has raised further problems which the proposed process would encounter. The decisions in Steelbond Sydney Pty Ltd v Marrickville Council (1994) 82 LGERA 192 and Herbert v Warringah Shire Council (1997) 98 LGERA 270 established that the power to grant development or building consent could not be exercised to validate the prior unlawful erection of a structure. Development consent may regularise for the future what had hitherto been an unlawful use of land or buildings, but the line of authority in the Land and Environment Court or its predecessor

which was analysed by Sheahan J in Herbert establishes that these powers were not available, prior to the Environmental Planning and Assessment Amendment Act 1997 (NSW), to regularise the unlawful erection of a structure. This Act, which came into force on 1 July this year, added s.149E to the Environmental Planning and Assessment Act 1979 (NSW). This, and associated sections, deal with the power of a council to grant a building certificate and the effects of such a certificate when granted. However, s.149E(2) appears to provide that a building certificate does not prevent either the council or any other person from making an order or taking proceedings for the making of an order or injunction requiring a building to be demolished where the order is made only in relation to matters arising otherwise than as a result of fair wear and tear. The same section also provides that such a certificate does not operate to prevent a council or any other person from taking proceedings under s.125 of the Act based on the owner’s failure to obtain development consent for the erection or use of a building or to comply with the conditions of such a consent. I have not had the benefit of full argument on the effect of this section. Mr Stephenson did not have an opportunity to consider it until the adjourned hearing this afternoon, but the new section, and the cases in the Land and Environment Court to which Miss Blackman has referred, increase the already formidable, indeed insurmountable, difficulties faced by the claimants.” In Tynan, Handley JA noted the inclusion in the EPA Act, as a result of the 1997 Amendments, of s 149E — providing that a person may seek a Building Certificate from council to partially regularise a building or work undertaken without the benefit of a development consent. The decision in Tynan indicates that, while consent could not be granted retrospectively for buildings already erected or works already completed or uses previously undertaken, it could be granted for the future use of land, or for the future use of buildings or works previously erected or completed, but that such consent applies only prospectively to the “use” element of the definition of “development”, but not to the

components of erection of a building or the carrying out of a work. Such a proposition raises the practical difficulty of the circumstances where development consent is granted for the use of a building or work, but there is no consent for the erection of the building or the carrying out of a work. While such circumstances were addressed in Mangano, they would potentially raise discretionary considerations in any civil enforcement proceedings to remove the building or work.

¶33-080 Dennis Foster Insurance Brokers Pty Ltd v Sydney City Council The relevance of prior demolition work and building work completed without a development consent on the consideration of an application for development consent for the use of the space was considered by Talbot J in the NSWLEC in Dennis Foster Insurance Brokers Pty Ltd v Sydney City Council [1999] NSWLEC 53 (Dennis Foster). Talbot J held at paragraphs [13] and [26]–[28]: “13. Recent decisions of this Court in Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192; Ross Connell v Armidale City Council (Pearlman J unreported 25 September 1996 No. 10272 of 1996 and 20068 of 1996); and Herbert v Warringah Council (1997) 98 LGERA 270 confirm the long established principle that a retrospective consent or approval cannot be obtained under the Environmental Planning and Assessment Act 1979 (EPA Act) or the Local Government Act 1993 (LG Act). … Conclusion 26. The Court has not been referred to any authority that persuades it that any approval or consent given to development necessarily overcomes any existing breach of the law. At best, development consent can only authorise what occurs in the future. It cannot authorise what it does not encompass. This was expressly recognised by Hemmings J in Hooper. The effect of the subsequent approval did not provide any authority for the

maintenance of the building erected earlier without consent. It was only because the council had been satisfied on the evidence before it that the pre-existing structure was acceptable in a relevant way that, by the exercise of the Court’s discretion, it was allowed to remain. 27. Applying those principles to the present case, if the Court cannot be satisfied that the building in its present state is safe and suitable for the use, then it has an undoubted discretion to refuse the application. It may be lacking the confidence it might otherwise have in the integrity of the building if all other statutory approvals are in place. In that sense, the fact that demolition work and building work were carried out without approval may be a relevant matter to the extent that it directs the Court to an avenue of inquiry it may in other circumstances find it unnecessary to pursue. 28. It is only in that latter sense that the carrying out of demolition and building work without approval can be relevant. The Court is not satisfied that the absence of an approval on its own is a relevant matter which has determinative value.” In Dennis Foster, Talbot J noted that the granting of development consent prospectively to the use of a space does not authorise any prior building or work undertaken without consent. However, the existence of a building or work undertaken without consent is not a relevant matter in consideration of a DA for use of the space, unless such unauthorised building or work leads to another line of inquiry, such as whether the building is safe and suitable for the proposed use for which consent is sought.

¶33-090 Ireland v Cessnock City Council The role of the courts in determining merit appeals against the refusal of a DA and the refusal to grant a Building Certificate under s 149F of the EPA Act was further considered by Bignold J in the NSWLEC in Ireland v Cessnock City Council (1999) 103 LGERA 285 (Ireland v Cessnock). In this case, the applicants erected a building to lock up stage without development consent. The Council obtained orders in

civil enforcement proceedings that the building should be demolished. The applicants then lodged a DA to use the buildings and a Building Certificate and appealed to the Court against the Council’s refusal to grant both. Bignold J held that, despite the Court Orders requiring demolition, the merit appeals were not barred by the principle of res judicata as Sheahan J in granting such orders had expressly contemplated the regularising action subsequently taken, and that there is a power to issue a Building Certificate where there is a current order requiring demolition. Bignold J held at p 298–299: “However, the more telling answer to the submission is simply that the issue of a building certificate is something quite different from a retrospective development consent to building approval for the erection of a building that already exists. … [p 299] In my opinion s.149A confers a discretion on a council to issue a building certificate even in circumstances where the council is not bound to issue it. In other words, the discretion is wider than the duty, and the duty to issue the certificate, unless certain conditions apply, does not create an implied duty not to issue the certificate where those conditions apply.” Bignold J then discussed the legislative predecessor to s 149F of the EPA Act, namely, s 317A of the LG Act 1919, the Local Government (Building Certificate) Amendment Act 1986 No 157 (NSW) and the LG Act 1993 (Pt 4 of Ch 7), and then stated at p 301: “The only reason that I have referred to the legislative antecedents of the current statutory provision relating to building certificates is to note that since 1928, in one form or another, the legislature has provided for what Jordan CJ in Knowles v Fuller (1947) 48 SR (NSW) 243 at 245 described as ‘an ex post facto certificate’: see also Hayes v Cable (1961) 7 LGRA 341. The present statutory regime is clearly linked with the legislative antecedents that I have enumerated and the interpretation of the

present provisions is assisted by the light cast by the decided cases on the previous enactments. What clearly emerges is that the legislature has for a very long period made provision for the obtaining of a building certificate ex post facto which may be sought and issued in respect of a building that was originally erected without the requisite approval or consent of the council, and when so issued, has always been conceived as to some extent ‘regularising’ past breaches of the Local Government Act and/or the EPA Act. For all the foregoing reasons, I would hold that there is power or discretion to issue a building certificate in respect of the building.”

¶33-100 Windy Dropdown Pty Ltd v Warringah Council The issue of retrospective approvals was further considered by Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 (Windy Dropdown) in considering an application to modify a development consent in relation to filling works already carried out contrary to the approved plans. Talbot J held at paragraphs [8]–[20] and [22]–[33]: “8. There is a long line of authority in this Court, exemplified by the observations made by Cripps J in Longa v Blacktown City Council (1985) 54 LGRA 422, which supports the proposition that there is no power in a consent authority or the Court to approve unauthorised work which has already been carried out. 9. In Longa, Cripps J accepted that although it was not open to the council or the Court to approve a structure already erected on the land, other than perhaps pursuant to s 317A of the Local Government Act 1919 (‘the LG Act 1919’), as it then stood, nevertheless it would be open for the builder to obtain building approval for future work in respect of the partly completed building that had been erected without council approval. It should be noted, however, that Longa was an appeal against an order for demolition of a partly erected building under s 317B of the LG Act 1919 and accordingly, the comments by Cripps J were strictly obiter dictum.

10. Furthermore, the observations by Cripps J in Longa appear to be inconsistent with his earlier obiter remarks in Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47 when he stated that ‘the inclusion of s 124 of the Environmental Planning and Assessment Act lead me to the view that an applicant is not precluded from obtaining a proper and valid application for consent to the use of land or the erection of a building notwithstanding the use or erection preceded the application for consent’. 11. There is no reason to depart from the approach taken by me in Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 in respect of an application made under s 106 of the Local Government Act 1993 (‘the LG Act 1993’) to amend a building approval. I decided that consent could not be given to approve work already carried out. The approach was subsequently embraced by Pearlman J in Connell v Armidale City Council (Pearlman J, NSWLEC, 25 September 1996, unreported). 12. In Connell, Her Honour extended the principle which stands against the capacity to grant retrospective approval to the application of s 102 of the Environmental Planning and Assessment Act 1979 (‘the EP&A Act’). 13. After considering a number of authorities, including Lirimo, Steelbond and Connell, in Herbert v Warringah Council (1997) 98 LGERA 270, Sheahan J found that s 102 requires approval of works prospectively and cannot be used to amend a consent where the works referred to in the application have already been carried out. 14. Although Her Honour in Connell appears to have considered the relationship between s 76, s 124 and s 102 of the EP&A Act (as it then applied) to conclude that s 102 could only have a prospective effect, it is not clear from the judgment of Sheahan J in Herbert how he reached the conclusion that ‘(t)he cases clearly find s 102 requires approval of works prospectively’. The only case cited by His Honour in Herbert that bears upon the present issue is the ex tempore decision of the Chief Judge in Connell. In that case Her Honour was hampered by the circumstance that Mr

Connell appeared without legal representation, a fact which she lamented in the judgment at p 4. 15. In the present case I have the benefit of full argument and submissions from counsel representing both parties. 16. It must first be observed that s 106 of the LG Act 1993 and s 96 of the EP&A Act are not in the same terms. Subsection (2) of s 106 expressly incorporates s 78 of the LG Act 1993 which provides that an application may be made by the person ‘seeking to carry out the activity’. 17. Pursuant to s 106(5) of the LG Act 1993, the amended approval replaces the original approval as from the date endorsed on the notice of determination of the application, which in context must be assumed to be the application for amendment. By contrast, s 96(4) of the EP&A Act provides that modification of the development consent is not to be construed as the granting of development consent but a reference to a development consent is a reference to the development consent so modified. 18. In Connell, Pearlman J was persuaded that s 76(2) (as it then was) contained words of prospective import, as I had observed in Steelbond. 19. Section 76A(1) of the EP&A Act is relevantly in the same terms as the former s 76(2) it replaced. Section 76A(1) expressly proscribes the carrying out of development unless development consent has been obtained and is in force and the development is carried out in accordance with the consent and the instrument. 20. Notwithstanding a foreshadowed argument that a modification of development consent has effect retrospectively by dint of s 96(4), in contrast to an amended approval under s 106(5) of the LG Act 1993, it is difficult to discount the overall aim of the scheme of the EP&A Act. In my view the aim can be distilled from a reading of s 76A. Development generally shall not be carried out where consent is required unless the consent has been obtained and is in force and the development is carried out in accordance with the consent. If that is a correct perception of the

operation of the EP&A Act in respect of the control over the carrying out of development, then the Court needs to be persuaded that s 96 can be marshalled in support of a condonation of development already carried out in breach of the existing terms of a consent. … 22. In Jacklion Enterprises Pty Ltd v Sutherland Shire Council (Pearlman J, NSWLEC, 8 July 1998, unreported) Pearlman J was content to assume, but only for the purpose of determination of the question of law in that case, that Steelbond, Connell and Herbert established the proposition that there is no power to grant retrospective consent for development already carried out. It was not necessary for Her Honour to further consider the proposition in Jacklion because she decided on the facts of the case that the modification application did not seek to obtain retrospective consent. However, Jacklion is authority for the principle that a condition which controls the impact of a subdivision may be modified pursuant to s 102, notwithstanding that building work controlled by the condition has been carried out in a manner contrary to the condition. 23. In Steelbond at 195 there is a discussion regarding the suggestion that s 124(3)(b) furnishes a limited opportunity to obtain a development consent provided it relates only to a continuing breach. However, Mr Leggat argues that the reference to ‘that consent’ in s 124(3)(a), as distinct from s 124(3)(b), does not compel the maintenance of what he describes as the illogical distinction between development consent for use of an unauthorised building and development consent for the construction of an unauthorised building. To support this line of argument he has regard to the opening words of subsection (3) which he says clearly contemplate the failure to obtain a consent in the first place. 24. Mr Leggat’s submission certainly has merit if the consent contemplated by the Court pursuant to s 124(3)(a) is referable to circumstances relating to the future use of an illegal structure.

The remaining question is whether s 124(3) can be applied to circumstances where development has been carried out otherwise than in accordance with an existing consent or the conditions thereof and the alleged breach can only be remedied retrospectively. 25. It is not necessary in this case to reach any final decision on that question in so far as it relates to the prospect of a development consent arising under s 124(3). 26. Section 124(3) does not contain any reference to modification of a development consent. The relevant phrases are ‘failure to obtain a consent’ and ‘to enable a development application to be made’. Cowdroy J did not make any orders pursuant to s 124(3). The class 4 proceedings were not adjourned to enable a development application to be made. Final orders were made. Those orders were stayed until these proceedings are concluded. The effect of s 124(3) therefore has little factual bearing on the present application or on the prospective or retrospective effect of an application for modification. 27. The language of s 96 (or the former s 102) itself does not mandate against retrospective development. The only prospective language is the reference to ‘the proposed modification’ in subsection 1A(a). A practical purpose of s 96 is to provide an opportunity to deal with anomalies in design unforeseen at the date of grant of development consent or, as the history of the legislation suggests, to legitimise partial changes that do not have the effect of radical transformation. The original concept of the modification of the details of a consent appears to have been reintroduced by s 96(1), although not in the same terms. 28. Subsection (4) of s 96 is the same as the previous subsection (4) of s 102. It expressly distinguishes modification of a development consent from the granting of development consent, thereby suggesting that at least in some respects the consideration and approval of an application for modification is to take place in a different context to the consideration of an application for development consent. Furthermore, the subject of

an application made pursuant to s 96 is the development consent, not the development itself. 29. One is then left to ponder how the express words in s 76A can be reconciled with the lack of a concise formulation in s 96 and a broad construction of s 124(3)(a). 30. Section 76A as well as s 78A clearly operate in the context of a prospective proposal whereas a modification of consent pursuant to s 96 operates retrospectively by dint of s 96(4). A modification may or may not alter some aspect of the development itself. That some degree of change is contemplated is recognised by the constraint in s 96(1A) and (2) that the development to which the consent as modified relates must be substantially the same development. 31. Even if s 124(3) does not ameliorate the strict application of s 76A, as Mr Leggat suggests it does, a broad construction of s 96 clearly leaves that potential open. The effect of s 96(4) is that any development already carried out in conformity with the consent as modified is deemed to have been carried out in accordance with the consent so modified. On that basis no conflict with s 76A will arise as the development is deemed to have been carried out pursuant to a consent. 32. Moreover, the broad construction of s 96 leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of construction of development or even subsequently, provided of course that the development to which the consent as modified relates is substantially the same development. 33. It follows from the foregoing analysis and reasoning that in my view an application that relates to development which has been already carried out can be made pursuant to s 96. The Court is therefore in a position to consider the subject application on the merits.” Conclusions Thus, Talbot J in Windy Dropdown identified the following conclusions.

• The overall scheme of the EPA Act is that development generally shall not be carried out where development consent is required until such time as that consent has been contained and the development is carried out in accordance with the consent. Thus, generally the overall scheme of the EPA Act requires prospective approvals. • A strict analysis of the provisions of s 96 of the EPA Act relating to modifications of a development consent does not operate to prevent a modification in relation to works already completed. • A modification to a development consent is distinguishable from the granting of a development consent. Section 96 enables a consent authority to modify a consent to address matters arising in the course of construction of a development or even subsequently to the construction of a development.

¶33-110 Willoughby City Council v Dasco Design and Construction Pty Ltd In Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257 (Dasco Design), Bignold J in the NSWLEC considered civil enforcement proceedings for declaration and injunction regarding alleged breaches of a development consent. An issue before the court was whether the respondents should be given an opportunity to modify their development consent to authorise the works already completed. Bignold J held at paragraphs [87]–[91], [94]–[105] and [108] as follows: “87. Since reserving my judgment in the present case, this Court has reconsidered the question whether the statutory modification power is available in a case where the works, the subject of the modification application, have already been carried out. Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 (unreported 17 November 2000) has now held that the statutory modification power is available in a case where the development has already been carried out.

88. In the course of his fully reasoned judgment, Talbot J discusses a number of the earlier decisions of this Court on the question, including Herbert, which his Honour considered to involve, upon analysis, no more than following the earlier decision of the Chief Judge in Connell v Armidale City Council (unreported 25 September 1996), a decision which Talbot J noted (par 14) to be extempore in which the Chief Judge ‘was hampered by the circumstance that Mr Connell appeared without legal representation, a fact which she lamented in the judgment at p 4.’ 89. In contrast, in Windy Dropdown, Talbot J acknowledged that he had had the benefit of ‘full argument and submissions from Counsel representing both parties’: par 15. 90. This being the current state of conflicting authority in this Court on the question, it becomes necessary for me to decide how the question is to be determined in the present case. 91. But for the supervening judgment of Talbot J in Windy Dropdown, I would, I think, have been disposed in the interests of judicial comity and certainty in the law to have adopted the existing settled state of authority in this Court as exemplified in the decision of Sheahan J in Herbert which had recently been cited in the judgment of Handley JA, sitting singly in the Court of Appeal, in Tynan v Meharg (No 2) (1998) 102 LGERA 119. … … 94. Having considered for myself the competing authorities in this Court, I would respectfully agree with Talbot J’s conclusion that the power of modification conferred by the EP&A Act, s 96 construed in its context and having regard to its obvious purpose in the legislative scheme, is available even in a case where the relevant works have already been carried out. The proper effect of s 96 is principally to be found in the language of that section rather than in the text of other provisions of the EP&A Act, most notably s 76A and s 124(3) and in the legislative policy that has been discerned therein. Those sections deal with the question of the need for development consent, but in view of the express terms of s 96(4) reference to those sections is not a likely source

of illumination of the true meaning of s 96. 95. Moreover, s 96 is a ‘facultative’ provision of the Act to which s 76A is expressly declared to be subject: vide s 76C cf North Sydney Council v Michael Standley and Associates Pty Limited (1997) 97 LGERA 433 dealing with the modification power contained in the predecessor s 102 of the EP&A Act. 96. In Michael Standley, the President observed at 445 in reference to the EP&A Act s 76 (now re-enacted as s 76A): ‘I see no reason why the opening words Subject to this Act are not sufficient to ensure this result, because they allow s 102 to operate according to its terms, thereby lifting the prima facie prohibitory operation of the balance of the subsection: see also Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 at 246.’ 97. This holding, in my respectful opinion, means that any relevant prohibition in s 76A is to be read subject to any modification that may be granted pursuant to s 96 to a relevant development consent. 98. The facts of the present case provide an apt illustration of the relationship between s 76A and s 96. 99. As I have already held, the ‘unlawful works’ attain that status by virtue of the operation of s 76A because although the development was approved by the Development Consent and the Construction Certificate, the works deviating from the approved plans were ‘not carried out in accordance with the conditions of the consent’ and hence created a breach of the Act. However, assume that the modification application be now approved. The result would be that by dint of the exercise of the modification power, the relevant prohibition contained in s 76A(1) no longer would operate. 100. However, the question immediately arises at what point of time would the prohibitory effect of s 76A(1) yield to the modification approval? On this question, there are two possible answers, depending upon the construction to be given to s 96(4).

101. One is that the modification approval is effectively related back to the grant of the development consent that it modifies. This is the view of Talbot J in Windy Dropdown as I would respectfully understand his judgment, when he states the following proposition at par 31: ‘The effect of s 96(4) is that any development already carried out in conformity with the consent as modified is deemed to have been carried out in accordance with the consent so modified. On that basis, no conflict with s 76A will arise as the development is deemed to have been carried out pursuant to a consent.’ 102. The competing answer, and the one that I would respectfully prefer, is that the modification is effective to oust the prohibitory effect of s 76A but only from the date that the modification is granted. 103. Section 96(4) is in the following terms: ‘Modification of a development consent in accordance with this section is not to be construed as the granting of development consent under this Part but a reference in this or any other Act to a development consent is a reference to the development consent so modified.’ 104. In my opinion, the second clause in s 96(4) is a conventional ‘referential’ provision, having conventional effect such as is provided in the Interpretation Act 1987, s 68: cf Interpretation Act 1897, s 25 as applied by the Court of Appeal in Albury City v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220. Its meaning is, I think, quite clear, namely that whenever a development consent is modified, any reference contained in the EP&A Act (eg s 76A and s 122) or any other Act to the development consent is to be construed as a reference to the development consent as so modified. However, this does not require a fictional relation back of the modification to the date when the development consent that it modifies, was granted. In other words, just as s 68 of the Interpretation Act 1987 requires a reference to an Act to be construed as a reference to that Act ‘as

in force for the time being’, but does not require the effect of any legislative amendment to be related back to the date of the original enactment, so s 96(4) is to be interpreted, according to its ordinary and natural sense, as requiring a reference to a development consent that has been subsequently modified to be construed as a reference to that consent as so modified from the date that the modification is granted. 105. I have dwelt on the question of the effect of s 96(4) at some length in the present case because of the importance to the known facts concerning the unlawful works carried out by the Respondents, namely the existence of the present civil enforcement proceedings and of criminal prosecutions brought against the Respondents for alleged offences committed against the Act. In such circumstances and assuming the approval of the Respondents’ modification application, it would be vital to determine the effect of any modification of the Development Consent — in a word, does the modification entirely ‘blot out’ or erase any breach of the EP&A Act (civil and criminal) arising from the operation of s 76A. In my opinion, the answer is clearly ‘no’. However, this does not mean that any modification of the Development Consent that may hereafter be granted, would not have a potentially highly significant impact upon the question whether in the exercise of the Court’s discretion, the relevant breach of the EP&A Act should be remedied. … 108. Another potential avenue for possible regularising of the situation is for the Respondents to make an application to the Council for the issue of a building certificate in terms of s 149A to 149G of the EP&A Act. Such an approach was held to be a means of ‘regularising’ a breach situation in Ireland v Cessnock City Council (1999) 103 LGERA 285, where it was held that the Council (or the Court, on appeal) had the discretion to issue a building certificate in circumstances where the Council is not obliged to issue the certificate — see at p 299 to 300.” Bignold J in Dasco Design agreed with Talbot J in Windy Dropdown

that a s 96 modification of a development consent can be made and granted in relation to works already completed. However, Bignold J noted that the granting of such a modification to work already completed does not erase any breach of the EPA Act which may have occurred prior to the approval of the modification. In that sense, it is not truly retrospective in operation, but the approval of a modification would affect discretionary considerations. Moreover, as Bignold J pointed out, the obtaining of a Building Certificate would address the issue of breach prior to the approval of any modification as far as it related to action by the Council.

¶33-120 Signorelli Investments Pty Ltd v Sutherland Shire Council In Signorelli Investments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 78 (Signorelli), Talbot J in the NSWLEC considered merit appeals in relation to DAs for works already completed. Talbot J held at paragraphs [18]–[22] as follows: “18. Notwithstanding the obiter remarks made by Cripps J in Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47, there has been a consistent line of authority in this Court which establishes that development consent may not be obtained in order to regularise something that has already occurred (Tynan v Meharg and Newcastle City Council (No. 2) (1998) 102 LGERA 119, Handley JA at 121). In Lirimo Cripps J was apparently led to the view that an applicant is not precluded from obtaining a proper and valid application for consent to the use of land or the erection of a building, notwithstanding that the use or erection preceded the application for consent, following the removal from the relevant planning schemes of the local successors to cl 27 of the PSO and the inclusion of s 124 in the EP&A Act. 19. I have some difficulty in appreciating the role that s 124 has to play in that line of reasoning. Section 124(2) identifies three categories of breach, namely, the use of any building, work or land, the erection of a building or the carrying out of a work and altering the condition or state of any building, work or land.

Section 124(3) cannot, in my view, be read to extend to each of those categories. Depending upon the provisions of the relevant planning instrument there could be instances where a breach of the Act would not have been committed but for the failure to obtain a consent to any of the three categories referred to in subsection (2). However, s 124(3)(b) clearly contemplates an activity which is continuing. Where the breach comprised the erection of a building there could be no interlocutory order which would ‘restrain the continuance of the commission of the breach’. In the case of the erection of the building or the alteration of the condition or state of a building the breach is complete. 20. Accordingly, the discretion to adjourn the proceedings to enable a development application to be made under Pt 4 to obtain a consent can relate only to circumstances where the breach is continuing. There has been nothing put to me in argument which would persuade me to change the established view that development consent can only be granted prospectively. The whole scheme of the Act demands that the effects and impacts of development be considered pursuant to the Act and in accordance with planning instruments made pursuant to it before consent is granted. 21. I agree with Mr Hale that decisions such as Longa v Blacktown City Council (1985) 54 LGRA 422; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor [2000] NSWLEC 257 do not deal with the grant of development consent. The argument by Mr Hale relies upon the distinctive provisions in the LG Act for regularising building works to submit that it is hardly surprising to find a provision such as s 124 which enables the Court to remedy a breach retrospectively because of failure to obtain a development consent. That situation has now changed following the amendments made to the EP&A Act by Act No 152 of 1997 with the introduction of ss 149A–149G facilitating the issue of building certificates. Even if the 1997 amendments had not been made to the EP&A Act, I would remain convinced that s 124 cannot be relied upon to develop an argument in favour

of a grant of development consent retrospectively. 22. Nevertheless, it is open for the Court to give consideration to the development application on the basis that it seeks only a consent to the future use of that part of the building which has been constructed or altered without development consent.” In Signorelli, Talbot J emphasised that the decisions in Windy Dropdown and Dasco Design are confined to modifications to a development consent under s 96 and do not extend to the granting of development consent itself.

¶33-130 Marvan Properties Pty Ltd v Randwick City Council In Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9 (Marvan), Talbot J in the NSWLEC considered whether a construction certificate could be issued in respect of building works already completed. The requirement for a construction certificate in relation to building works replaced the previous requirement for a building approval under Pt 10 of the LG Act 1919 and its successor, as approved under s 68 of the LG Act 1993 as a result of the 1997 Amendments to the EPA Act. In Marvan, Talbot J held that a Construction Certificate (the legislative successor of a building approval under the former LG Act 1919) could be granted in relation to building works already completed. However, the Building Professional Act 2005 No 115 (NSW) inserted s 109F(1A) into the EPA Act. Section 109F(1A) provides: “(1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.” Thus, s 109F(1A) overturns the decision in Marvan and prevents the issue of a Construction Certificate for building works already completed.

¶33-140 Building approvals and construction certificates The previous discussion on the question of the granting of approvals in relation to works already completed has extended beyond the issue of the granting of development consent. It has covered the retrospective grant of: • a development consent under Pt 4 of the EPA Act • the modification of a development consent under s 96 of the EPA Act • the granting of the former building approvals under Pt XI of the LG Act 1919 and its successor, s 68 of the LG Act 1993 (both of these provisions have been repealed and replaced by construction certificates under the EPA Act), and • the issue of a construction certificate under the EPA Act. The questions of modification of a development consent and the issue of construction certificates will be considered later. However, for the sake of completeness (and to enable a consideration of the complete issue of the granting of planning and building approvals for works already undertaken), it has been considered here to enable a full appreciation of the approaches taken by the legislature and the courts and a comparison of the approaches as they relate to the various planning and building approvals. Each approval has its own statutory provisions. In relation to DAs, s 76A(1) provides that, if an EPI provides that development may not be carried out except with development consent, a person must not carry out the development without a consent being obtained and the development is carried out in accordance with the consent. Section 78A(1) provides for the prospective nature of a DA by providing that: “A person may … apply to a consent authority for consent to carry out development”. Section 81A(2) provides that: “The erection of a building in accordance with a development consent must not be commenced until:

(a) a construction certificate for the building work has been issued …” plus a number of other requirements specified in s 81A(2). The provisions relating to modifications of a development consent under s 96 refer to a “proposed modification” in s 96(1A) and (2) but provide no clear language to require that any development, the subject of a modification application, is to be prospective only. Further, s 96(2)(4) expressly provides that the modification of a development consent is not to be taken as the granting of a development consent. In relation to construction certificates, the provisions of s 81A(3) and s 109F(1A) have already been referred to. Section 124(3) of the EPA Act provides for powers of the NSWLEC in its civil enforcement jurisdiction in relation to breaches of the EPA Act, Regulations, EPIs and consents. It provides as follows: “124 (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.” For breaches of an EPI which required a development consent but none had been obtained, s 124(3) would have no work to do if it was impossible to regularise a breach by lodging an application. It is noted that s 124(3)(a) refers to the making of a DA, not a modification of a development consent under s 96. Thus, s 124 sits uncomfortably with the judicial decisions that a development consent cannot be lawfully granted in relation to works already undertaken. The other means of regularising building works undertaken without planning or building approval is to seek a Building Certificate under s

149A–G of the EPA Act. These provisions replaced the former s 317A Building Certificates under the LG Act 1919 and the Building Certificates under the LG Act 1993 and were inserted in the EPA Act by the 1997 Amendments. These Building Certificates are limited to a building. Thus, they cannot be obtained for other elements of the definition of “development” in s 4(1) of the EPA Act, particularly the carrying out of a work. The effect of the granting of a Building Certificate is specified in s 149E. The effect of the issuing of a Building Certificate is not to grant retrospective approval for the building in question but to prevent the council from making an order or seeking civil enforcement to require the building to be demolished or altered. In particular, the issue of a Building Certificate does not: • prevent the council from taking criminal proceedings under s 125 of the EPA Act for a fine for the unlawful erection of the building without consent, and • prevent third parties other than the council (such as neighbours) from seeking an order from the court under s 123 to require demolition or alteration of the building, although the issue of a Building Certificate no doubt would be a discretionary consideration in the granting of relief. Thus, the option to regularise development already undertaken without planning or building approval by way of a Building Certificate provides only partial and limited protection. The only other available option is to obtain a modification of a development consent under s 96 of the EPA Act. Such a course is not available if: • there is no development consent in force applying to the premises which is capable of being modified, or • there is a development consent in force applying to the premises, but the modification required to regularise the unauthorised

development fails to meet the threshold test for a valid s 96 modification of being substantially the same development as the development for which the consent was originally granted. The policy underpinnings of the approach to retrospective approvals have been examined by Ellis-Jones.1 Ellis-Jones concluded (footnotes excluded): “The present state of the law in New South Wales with respect to the retrospective approvals and consents is, to put it mildly, quite unsatisfactory and confusing. However well-intentioned some of the more recent judicial decisions may have been, the fact is that, for the most part, the practical effect of those decisions has been to give encouragement to persons who deliberately offend against the terms of a development consent for their own personal or private benefit and often to the detriment of adjoining or adjacent landowners and residents. Such a state of affairs is demonstrably not in the public interest. The whole notion of granting retrospective approvals or consents, or retrospective modifications to approvals or consent, is contrary to the basic rationale behind the existence and need for an approvals or consent system. Despite some unfortunate, overly pragmatic watering down of this principle in recent times, it is indubitably the case that the whole approvals scheme contained over the years in statues, such as the LG Act 1919, the LG Act 1993 and the EPA Act 1979, has been expressly or otherwise by necessary statutory implication, directed to the necessity for obtaining approval or consent before work is commenced. The reason for this is not difficult to understand. Any approvals system, in order to be fully effective and have sufficient deterrent value, needs to be truly prospective in the following manner: 1. An applicant, intending to carry out some activity that, as a matter of law, requires some statutory approval or consent in respect of its lawful carrying out, makes an application in the proper form, and that is otherwise capable of lawful determination, to the appropriate approvals or consent authority, for approval of consent.

2. The applicant’s application is duly assessed by the approvals or consent authority on its respective merits, and otherwise according to law, given real, proper and genuine consideration to the application in all material respects, taking into account all those relevant matters for consideration that the decision-maker is duty bound, as a matter of law, to take into account, and so further. 3. In due course, an approval or a consent is issued, having a prospective operation. 4. Rights of merit-based appeal exist in most cases, with the subject application for approval or consent being, once more, duly considered on its merits, with the matter before the court being determined by reference to the circumstances — both the facts and the law — as they exist at the time of the appeal. It is the author’s firm view that if there be a need from time to time to ‘provide an opportunity to deal with anomalies in design unforeseen at the date of grant of development consent’ or the like — and there may well be — then bold, forward-looking mechanisms, such as the building certificates regime contained in Pt 8 of the EPA Act, or the introduction of some similar statutory mechanism, is the appropriate way to go. In the apt words of the American humorist, satirist and cartoonist, James Thurber: ‘Do not look back in anger, or forward in fear, but around in awareness.’”2 There is considerable merit in the policy approach suggested by EllisJones, but for such approach to be adopted, a more comprehensive regularisation option is required by expanding the coverage of a Building Certificate to cover other elements of the definition of “development” than simply buildings, to provide protection generally from civil enforcement action and to permit the issue of an Occupation Certificate based upon a Building Certificate where no Construction Certificate had been issued. Footnotes

1

Ellis-Jones, I, 2008, “Retrospective approvals, consents and certificates in New South Wales”, in Environment and Planning Law Journal, Volume 25, p 449–461.

2

ibid, p 460–461.

¶33-150 Principles relating to retrospectivity and development applications The key principles derived from the discussion on seeking and obtaining planning approval for development which has already been undertaken are as follows: Principle 1: The power to grant development consent to a DA is prospective only and does not permit the granting of development consent to a development which has already been undertaken (Lowe v Mosman, Steelbond, Herbert, Dennis Foster, Windy Dropdown, Signorelli, and contra Lirimo). Principle 2: A modification of a development consent under s 96 of the EPA Act may be approved in relation to development which has already been carried out (Windy Dropdown, Dasco Design). Principle 3: A construction certificate cannot be lawfully granted in relation to building work already physically commenced (s 109F(1A) of the EPA Act, contra Marvan). Without a construction certificate, no Occupation Certificate may be granted (s 109H of EPA Act). Principle 4: Where a building has been erected or a work has been undertaken which required development consent, but none had been obtained, development consent for the future use of that building or work may be obtained (although see Lirimo). Principle 5: Where a building has been erected which required development consent, but none had been obtained, this may be regularised by applying for and obtaining a Building Certificate under s 149A–G of the EPA Act (Ireland v Cessnock, Dasco Design).

However, a Building Certificate can only be obtained in relation to building and hence, does not operate to regularise other elements of the definition of “development”. Principle 6: The approval of a modification of a development consent under s 96 of the EPA Act does not erase any breach of the EPA Act which may have occurred prior to the approval of the modification. In that sense, it is not truly retrospective in operation, but the approval of a modification would affect discretionary considerations in any proceedings. The obtaining of a Building Certificate does address the issue of breach but only so far as council action is concerned (Dasco Design).

FORMAL REQUIREMENTS FOR A DEVELOPMENT APPLICATION ¶34-010 Formal requirements set out in s 78 and s 78A The formal requirements for a development application (DA) are set out in s 78 and s 78A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which provide as follows: “78 The development consent process — the main steps The main steps in the development consent process are set out in sections 78A–81 and in the regulations made for the purposes of this Part. 78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs [a]–[f] of the definition of development in section 4(1). … (8) A development application (other than an application in

respect of State significant development) must be accompanied by: (a) if the application is in respect of designated development — an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats — a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. Note. Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats. (8A) A development application for State significant development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. (9) The regulations may specify other things that are required to be submitted with a development application.” The provisions in s 78A(3)–(6), which have not been included in the extract above, relate to the capacity for an applicant in a DA submitted to a council to also seek approvals under s 68 of the Local Government Act 1993 (LG Act 1993). A development consent so granted is taken to be an approval under s 68 of the LG Act 1993.

¶34-020 Environmental Planning and Assessment Regulation 2000

Additional significant formal requirements for a DA are contained in the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation provides that the consent authority is required to provide a person wishing to lodge a DA with its scale of fees and blank copies of any application form (cl 48).

¶34-030 Who can make a development application? Clause 49 of the EPA Regulation specifies who can make a DA. It provides: “49 Who can make a development application? (cf clause 46 of EP&A Regulation 1994) (1) A development application may be made. (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. (2) Subclause (1)(b) does not require the consent in writing of the owner of the land for a development application made by a public authority or for a development application for public notification development if the applicant instead gives notice of the application: (a) by written notice to the owner of the land before the application is made, or (b) by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made. (3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.

(3A) Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council. (4) Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development. (5) In this clause: public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering the Act has, by order in writing, declared to have the status of public authority for the purposes of this clause in relation to development of a kind specified in the order. public notification development means: (i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or (ii) State significant development on land with multiple owners designated by the Director-General for the purposes of this clause by notice in writing to the applicant for the State significant development.”

¶34-040 Definition — “owner” “Owner” is defined in s 4(1) of the EPA Act as follows: “owner has the same meaning as in the Local Government Act

1993 and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected.” The definition of “owner” in the LG Act 1993 is as follows: “owner: (a) in relation to Crown land, means the Crown and includes: (i) a lessee of land from the Crown, and (ii) a person to whom the Crown has lawfully contracted to sell their land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown, and (b) in relation to land other than Crown land, includes: (i) every person who jointly or severally whether at law or in equity, is entitled to the land for any estate of freehold in possession, and (ii) every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, and (iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996, and (iv) in the case of land that is a community, precinct or neighbourhood parcel within the meaning of the Community Land Development Act 1989, the association for the parcel, and

(v) every person who by this Act is taken to be the owner, and (c) in relation to land subject to a mining lease under the Mining Act 1992, includes the holder of the lease, and (d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected.” Further consideration of land owner’s consent provisions is given in Chapter ¶35.

¶34-050 Requirements for the application itself The formal requirements for the application itself are specified in cl 50 of the EPA Regulation, as follows: “50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994) (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and (b) if the consent authority so requires, must be in the form approved by that authority, and (c) must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and (d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission. …

(3) Immediately after it receives a development application, the consent authority: (a) must register the application with a distinctive number, and (b) must endorse the application with its registered number and the date of its receipt, and (c) must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received. … (5) The consent authority must forward a copy of the development application to the relevant council if the council is not the consent authority. (6) If the development application is for designated development, the consent authority must forward to the Director-General (where the Minister or the Director-General is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application. Note. Additional requirements in relation to the making of the development application apply to applications for designated development, for integrated development and applications for development that affect threatened species. …” There are special provisions in cl 50 in relation to DAs for residential flat developments, wilderness areas, instances where a site compatibility certificate is required, instances where an approval under s 68 of the LG Act 1993 is also sought, as well as to alter a Building Sustainability Index (BASIX) affected building which have not been

included in the above extract. Part 1 of Sch 1 of the EPA Regulation provides as follows: “Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information: (a) the name and address of the applicant, (b) a description of the development to be carried out, (c) the address, and formal particulars of title, of the land on which the development is to be carried out, (d) an indication as to whether the land is, or is part of, critical habitat, (e) an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless the development is taken to be development that is not likely to have such an effect because it is biodiversity compliant development, (ea) for biodiversity compliant development, an indication of the reason why the development is biodiversity compliant development, (f) a list of any authorities from which concurrence must be obtained before the development may lawfully be carried out, (g) a list of any approvals of the kind referred to in section 91 (1) of the Act that must be obtained before the development may lawfully be carried out, (g1) in the case of State significant development, a list of

any authorisations that must be provided under section 89K of the Act in relation to the development, (h) the estimated cost of the development, (h1) in the case of State significant development, the capital investment value of the development, (i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner’s consent is required by this Regulation, (j) a list of the documents accompanying the application. … 2 Documents to accompany development application (1) A development application must be accompanied by the following documents: (a) a site plan of the land, (b) a sketch of the development, (c) a statement of environmental effects (in the case of development other than designated development or State significant development), (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), (e) an environmental impact statement (in the case of designated development or State significant development),

(f) a species impact statement (in the case of land that is, or is part of, critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats but not if the development application is for State significant development), (g) if the development involves any subdivision work, preliminary engineering drawings of the work to be carried out, (h) if an environmental planning instrument requires arrangements for any matter to have been made before development consent may be granted (such as arrangements for the provision of utility services), documentary evidence that such arrangements have been made, (i) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house and other than a temporary structure): (i) a list of the Category 1 fire safety provisions that currently apply to the existing building, and (ii) a list of the Category 1 fire safety provisions that are to apply to the building following its change of use, (j) if the development involves building work to alter, expand or rebuild an existing building, a scaled plan of the existing building, … (o) in the case of a development involving the use of a building as an entertainment venue or a function centre, pub, registered club or restaurant — a statement that

specifies the maximum number of persons proposed to occupy, at any one time, that part of the building to which the use applies. (2) The site plan referred to in subclause (1) (a) must indicate the following matters: (a) the location, boundary dimensions, site area and north point of the land, (b) existing vegetation and trees on the land, (c) the location and uses of existing buildings on the land, (d) existing levels of the land in relation to buildings and roads, (e) the location and uses of buildings on sites adjoining the land. (3) The sketch referred to in subclause (1) (b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land’s boundaries and adjoining development, (b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building, (c) elevations and sections showing proposed external finishes and heights of any proposed buildings (other than temporary structures), (c1) elevations and sections showing heights of any proposed temporary structures and the materials of which any such structures are proposed to be made

(using the abbreviations set out in clause 7 of this Schedule), (d) proposed finished levels of the land in relation to existing and proposed buildings and roads, (e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate), (f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity), (g) proposed methods of draining the land, … (4) A statement of environmental effects referred to in subclause (1) (c) must indicate the following matters: (a) the environmental impacts of the development, (b) how the environmental impacts of the development have been identified, (c) the steps to be taken to protect the environment or to lessen the expected harm to the environment, (d) any matters required to be indicated by any guidelines issued by the Director-General for the purposes of this clause. …”

¶34-060 Rejection of a development application A consent authority is empowered to reject a DA within 14 days of receiving it for the specified grounds in cl 51 of the EPA Regulation. It is noted that the power to reject a DA within 14 days is confined to

the grounds specified in cl 51 of the EPA Regulation. The grounds upon which a DA may be rejected are if: • it is illegible • it is unclear as to the development consent sought • it does not contain the information or is not accompanied by any document specified in Pt 1 of Sch 1 of the EPA Regulation • the concurrence fees, if required, are not provided • the integrated approvals, fees and information, if the DA is for integrated development, are not provided • if a Species Impact Statement (SIS) is required but not provided, and • if an Environmental Impact Statement (EIS) is required but not provided. An application so rejected is taken never to have been made (cl 51 of EPA Regulation). There is a capacity for the applicant to seek a review of the decision to reject a DA under s 82B. However, a rejection of a DA based on cl 51 of the EPA Regulation does not prevent a right of merit appeal to the Land and Environment Court of NSW (NSWLEC) despite the provision of cl 51(3) of the EPA Regulation that a DA so rejected is taken to have never been made.

¶34-070 Parkes v Byron Shire Council In Parkes v Byron Shire Council [2003] NSWLEC 104, Lloyd J in the NSWLEC held that rejection of a DA is a function or discretion which the Council had in respect of the subject matter of the appeal and hence, under s 39(2) of the Land and Environment Court Act 1979 (NSW), capable of being exercised by the Court in a merit appeal (paragraphs [10]–[16]). Other than the grounds specified in cl 51, and within the time so specified, a consent authority cannot reject a DA.

A consent authority can request an applicant to provide additional information under cl 54 but the applicant is not obliged to supply the information sought. An applicant may withdraw a DA by a written notice at any time prior to its determination, and a DA once withdrawn is taken never to have been made (cl 52 of EPA Regulation). No agreement from the consent authority is required to withdraw a DA.

¶34-080 Amendment of a development application A DA once lodged may be amended or varied by the applicant at any time before the DA is determined (cl 55 of EPA Regulation). However, to amend or vary a DA, the applicant requires the agreement of the consent authority. The power to amend a DA is confined to an amendment and does not extend to a new application.

¶34-090 Ebsworth v Sutherland Shire Council In Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 (Ebsworth), Talbot J stated at paragraphs [17], [24], [33]–[35] and [40]: “17 Ms Ranken, who appears for the council, refers to a number of cases that apply the ‘substantially the same’ test to support the submission that the plans filed and served 19 August 2005 are not an amendment to the application but instead form a new proposal/application. … 24 Mr Tomasetti relies on the decision of Ervin Mahrer and Partners v Strathfield Municipal Council (No. 2) (2001) 115 LGERA 259 where Bignold J said that the reasoning of Manchil should not be applied to the plain meaning of the words attributable to the broad power created by Regulation 55. At [139] Bignold J held that ‘cl 55 … permits a development application ‘to be changed or altered resulting in an alteration, variation or modification to the proposed development.’’

… 33 In the light of what appears to be different approaches taken by several Judges of the Court it is appropriate to gather together those conflicting views. They are as follows: — ‘… that scope and extent of the statutory power of amendment created by cl 55 of the Regulation permits a development application ‘to be changed or altered resulting in an alteration, variation or modification in the proposed development.’ … do not see any legitimacy in quest of the proper construction of cl 55 to superimpose upon the word ‘change’ appearing in cl 55 of the Regulation the qualification of not being a ‘radical’ change or to superimpose upon the adopted meaning of the word ‘change’ namely ‘to make different’ the qualification of ‘not being substantially different’ (Ervin Mahrer and Partners v Strathfield Council (No. 2) 115 LGERA 259 confirmed in Elali v Campbelltown City Council (2004) 135 LGERA 85 and Rose Bay Afloat Pty Ltd v Woollahra Council and Another (2002) 126 LGERA 36). … in applying that construction (Ervin Mahrer) questions of fact and degree do arise, and in turn, they are to be considered … in the context of the surrounding circumstances of the development application and the category or character of the development. (Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147). … the Court is not empowered to entertain amended plans which are so substantially different from the original plans that the development as proposed cannot be said to be substantially the same development as was the subject of the development application. (Dyldam Developments P/L v Holroyd City Council [2001] NSWLEC 204). The Court has no jurisdiction to entertain an original application. The Court cannot entertain an amendment which converts what was before the council into a fresh application.

Therefore if amendments convert the original concept into something substantially different from the original development application, the Court does not have the power to consider it (Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd (1974) 2 NSWLR 415 at 420, per Samuels J; Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590 at 598, 602, per Hope JA). In Cambridge Credit, Hutley JA (at 612) adopted the phrase ‘differs in any material respect’, and the description of the constraint as ‘not to approve development which differs in any material respect from that described in the development application’, citing Else-Mitchell J in Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99 at 107–108. It is [sic.] also follows that the comparison must be between the development application as originally made and the amendments that are now sought. (Waite v Blacktown City Council [2004] NSWLEC 157). … the Court … does not have the power to allow an amendment which differs in any material respect from that described in the plans accompanying the development application. (Chase Property Investments Pty Limited v Blue Mountains City Council [2005] NSWLEC 476).’ 34 In Ervin Mahrer and Elali and Rose Bay Afloat Bignold J recognised the prospect of a meaning of the statutory power of amendment that was circumscribed or delineated so as to permit only an amendment ‘which did not convert the proposed development into something substantially different’ or fundamentally different in ‘character’ or ‘radically transformed.’ 35 If it is necessary to place some boundary or outer limit on the broad view taken by Bignold J, I would tentatively raise two practical criteria that may provide some guidance, although each case will need to be dealt with on its merits as no doubt Bignold J appreciated when he took such an unconstrained view in Ervin Mahrer. The two criteria that could be helpful in considering whether a development application may be amended or varied

are: — (1) Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application. (2) Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment. … 40 It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate.” Thus, in Ebsworth, Talbot J held that: • an amendment to a DA could not be such as to convert the original DA into a fresh application • there is no clear authority for limiting the power to amend a DA to changes which are not a radical change or that the proposal as changed is not substantially different • two tentative criteria in considering whether a DA can be amended are: (1) whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstances of the DA, and (2) whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they

place the development in a different category for the purpose of assessment, and • a broad approach to the power to amend should be taken as it enables the applicant to respond to issues raised by the council or objectors and to encourage a consent authority to seek a better development outcome.

¶34-100 Radray Constructions Pty Ltd v Hornsby Shire Council In Radray Constructions Pty Ltd v Hornsby Shire Council [2006] NSWLEC 155 (Radray), Jagot J expressed agreement with Talbot J in Ebsworth and said at paragraphs [8]–[10] and [16]–[18] as follows: “8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development). 9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give ‘the widest interpretation which its language will permit’ (Bridge Shipping Pty Limited v Grand Shipping SA and Another (1991) 173 CLR 231 at 260–261 per McHugh J referring to Holmes and Another v Permanent Trustee Company of New South Wales Limited and Others (1932) 47 CLR 113 at 19 per Rich J). 10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).

… Is the power under cl 55 available? 16 Mr Graham for the Council submits that the test to determine whether the changed development converts the application into an original application is whether the proposed development is ‘substantially the same’ as the development the subject of the development application lodged with the Council (prior to its first amendment). That test has been applied in some cases, as the discussion in Ebsworth v Sutherland Shire Council discloses. I do not consider that the ‘substantially the same’ formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application. 17 The amendments or variations proposed by the applicant in this case will lead to a ‘changed development’. The presence and location of the creek on the site inevitably affects the potential built form. Any change in design philosophy for treatment of the creek (as appears to have occurred here by reason of the opinion from the Court appointed drainage expert) would be likely to manifest in changes to the built form. The amended plans reflect changes to the built form that arise from both the different treatment of the creek and a different architectural expression. The proposed development nevertheless remains a self care seniors living development of 22 units on the land at 15 Eyles Avenue and 15 Anthony Avenue, Epping, with ancillary basement car parking, substantial works to the creek and landscaping. The essence of the development thus remains the same. The amendments or variations, although creating a ‘changed development’, have not converted the application into an original application. I do not consider the changed development depicted in the amended plans, having regard to the particular circumstances of this case, fall outside the scope of cl 55.

18 Accordingly, I am satisfied that there is power to agree to the amendment or variation proposed.” Thus, Jagot J in Radray followed the “broad approach” as to what constitutes an amendment to a DA and did not consider that the test of “substantially the same” reflects the full scope of the power to amend a DA. An applicant is taken to have indemnified all persons using a DA and accompanying documents for purposes under the EPA Act against any claim alleging breach of copyright (cl 57 of EPA Regulation).

¶34-110 Compliance with formal requirements for a development application — Hornsby Shire Council v Devery In Hornsby Shire Council v Devery (1965) 12 LGRA 31 (Devery), ElseMitchell J in the Supreme Court of NSW considered an application for an injunction against the relevant planning merit appeal body (in this case the State Planning Authority of NSW (SPA)) based, in part, on whether the application met the formal requirements. In this instance, an interim DA was lodged seeking approval for an industrial building at Thornleigh under IDO No 4 — Shire of Hornsby. The Standard or Model Provisions 1965 (made under the Local Government Act 1919 (NSW), 9 July 1965) provided requirements for the information to be submitted to the Council. These requirements were not met. The Council refused the application. The applicant lodged a merit appeal to the SPA, and the Council sought to injunct the appeal based in part on the issue of whether there was a proper application in the first place. Else-Mitchell J held at p 39–40 as follows (footnotes not included): “Validity of application. It was submitted that the form of interim development application was incomplete and did not comply with cl. 3 of the standard or model provisions prescribed by the Minister in November 1962 because (a) No purpose for which the buildings are to be used was stated;

(b) No site-plan was furnished, and (c) The particulars and maps and drawings furnished were not adequate. As a matter of construction of cl 3 of the standard or model provisions I think it clear that an application for interim development permission must state the purpose for which the land or any building proposed to be erected thereon is to be used. The range of industries set out in col. V of the Interim Development Orders seems to me necessarily to require that particulars should be given which would enable the council to determine whether the proposed use is a non-conforming use or not, and, in consequence the application dated 30th November 1964 was not in my view a proper application which the council was obliged to consider. The fact that it did so requires separate discussion. So far as the provisions of cl 3 relating to the submission of a siteplan, particulars and maps and drawings are concerned, I should observe that each of these is conditioned by a requirement of sufficiency; the site-plan (which may be mandatory) must be ‘sufficient to identify the land’, the particulars must be ‘sufficient to show the proposed development’ and by the proviso maps and drawings need not be furnished where the proposed development is ‘sufficiently described by the particulars’ or where general permission only is sought. It seems to me that the Council must be the judge of the sufficiency of each of those documents for the purpose designated by the clause and if it elects to accept plans, maps or documents containing meagre details as sufficient and perhaps even if no plans, maps or drawings are furnished — the council would not in my view be acting beyond its powers in dealing with and giving a decision upon the application. This conclusion makes it unnecessary to decide objectively whether the application in these other respects conforms with cl. 3 of the standard or model provisions for by entering upon a consideration of the application the council must be assumed to have been satisfied of the sufficiency of the plans and of the other

particulars required to be submitted and it did not, as it might, refuse to give a decision until further or proper plans, maps and drawings were furnished. But the application nevertheless suffered from the defect that the purpose for which the building was to be used was not designated in the application and it is necessary therefore to consider the effect of the council’s having in fact proceeded to determine an application which did not comply with the standard or model rules. [p 40] … Whether a particular requirement is mandatory or not, it does not follow that the body making a determination will always be acting in excess of power if it decides to refuse or to grant an application which is defective and the determination it makes upon such an application may nevertheless be valid and effective for the purpose of founding rights in the appellant either to carry out the development or otherwise to use the land and buildings thereon in conformity with the permission granted, or to seek to set aside by some appellate process a refusal to allow the development sought or any other adverse decision. … In the present case the council considered the application without objection, informed Mr Devery of its decision and the reasons therefore, and later furnished the State Planning Authority, under cover of a letter of 7th April 1965, with a list of particulars of the application and its decision thereon in none of which was an assertion made of the deficiency of the application; this likewise seems to me to constitute a waiver of any defect and amounts to an acknowledgment of the completeness of the interim development application. These conclusions of course have no bearing upon the question whether a council is obliged to entertain or give a decision upon an incomplete or defective application; plainly if it refused to do so upon the ground that sufficient plans, maps or particulars had not

been furnished, a Court would not compel it to do so by mandamus. But where as here, it has elected to treat an complete and valid and regular an application which is deficient, I think that it cannot subsequently seek to deprive an applicant of the rights, positive or negative, which flow from the grant or refusal of any necessary consent for which the application was made.” Thus, Else-Mitchell J in Devery held that: • a consent authority can refuse to consider and determine a DA which is incomplete or defective, and in such circumstances, the court would not intervene, and • if, however, a consent authority elects to treat a deficient DA as complete and valid and regular, such action constitutes a waiver of any defect and amounts to an acceptance that the DA is complete. Devery of course was decided in a context prior to citizens and third parties being afforded rights in relation to a DA, where the only relevant interested parties under the applicable legislation were the applicant and the council. Hence, its conclusions are likely to have been altered by more recent judicial decisions.

¶34-120 Helman v Byron Shire Council In Helman v Byron Shire Council (1995) 87 LGERA 349 (Helman), the NSW Court of Appeal considered the issue of validity of a DA. A DA had been lodged to continue operations at a quarry south of Byron Bay. The DA was accompanied by an EIS as was required for designated development. The DA was not accompanied by a Fauna Impact Statement (FIS) (the precursor of a SIS). The EPA Act at the time required the EIS to be publicly exhibited, which, in this case it was. The EPA Act at the time required an FIS if a DA was likely to significantly affect the environment of endangered fauna, and, at first instance, the NSWLEC found the development was likely to significantly affect the environment of endangered fauna. The EPA Act at the time required an FIS to be publicly exhibited. In this case, an

FIS was prepared and lodged with the Council after exhibition of the EIS. The FIS was not exhibited. Section 86 of the EPA Act, as it then applied, required the FIS to be available for public inspection. At first instance, the NSWLEC granted consent, finding there was substantial compliance with the legislative requirements. In the NSW Court of Appeal, Handley JA (with whom Kirby ACJ agreed and Priestly JA agreed on this aspect) held: “The existence of the breaches was not an issue in this Court but the parties were in dispute as to the legal consequences of those breaches Parliament having failed to state clearly what those consequences should be … [p 355] … In the present case however the Court must seek an answer by applying the principles in Tasker v Fullwood [1978] 1 NSWLR 20 at 23–24: ‘The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court … From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. … (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved … (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … (4) The intention being sought is the effect on the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement … (5) It can mislead if one substitute for the question thus posed an investigation as to whether

the statute is mandatory or directory … The effect of non-compliance with statutory conditions governing the lodgement of development applications and the grant of development consent has arisen with some frequency under other legislation but this Court’s first task must be to examine the scheme of the Act.’ [p 356] The requirements for an fauna impact statement are similar to those for an environmental impact statement and were adopted by Parliament in 1991 when the proper approach to the requirements for an environmental impact statement was well established. The Courts have insisted on substantial compliance without being over technical or astute to find fault. The authorities and the relevant principles were reviewed by Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 30–31. As Stein J held in Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 at 278–280 the same approach should be adopted to a fauna impact statement. … [p 358] What conclusion should the Court draw from this scheme as to the consequences which Parliament intended should result from such non-compliance with s 77(3)(d1) and s 86 as occurred in the present case? The leading case in this area is undoubtedly Scurr v Brisbane City Council (1973) 133 CLR 242; 28 LGRA 50. The High Court was there concerned with s 22 of the City of Brisbane Town Planning Act 1964 (Qld) which provided that the Council ‘before deciding’ a relevant application ‘shall’ cause public notice of the application to be given setting out ‘particulars of the application’ and stating that objections could be lodged with the Council within a specified time. Stephen J, who delivered the principal judgment, considered (at 251–252; 57) that the purpose of the legislation was to ensure that the Council had the benefit of the views of objectors before

making a decision on the application, that objectors were entitled to make their views known, and if dissatisfied to appeal. Achievement of these purposes depended on the giving of public notice of relevant applications. He said (at 255–256; 60): ‘The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the Council and … is wholly dependent upon the giving of public notice for the attainment of its objects … I have found the particulars … to be inadequate … the Council here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated.’ His Honour proceeded to consider the effect of non-compliance (there being no express provision dealing with this matter) and concluded that the Local Government Court should have rejected the application. In my opinion Scurr’s case is directly relevant, although the defects in this case are different. Section 77 imposes on applicants, in mandatory terms, obligations in the nature of conditions precedent which are directed to achieving the purposes identified by Stephen J. Section 88 prohibits a consent authority from determining a development application until after the close of the period for objections. As in Scurr’s case compliance with the statutory requirements is ‘a condition precedent to any consideration of the application by the Council’. In the result, late lodgment of the fauna impact statement bypassed the statutory requirement that such a document be available for inspection and consideration by the public. Compliance would have enabled relevant and better informed objections to be lodged. While the decision-maker had the benefit of an appropriate fauna impact statement, the objectors had no opportunity to consider it or make submissions based on it. In the result there has been something akin to a denial of natural justice. Decisions since have confirmed the construction adopted in

Scurr’s case: see Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 506, 514, 517; 44 LGRA 346 at 361, 367, 369 and especially at 518; 370 where Wilson J said: ‘Substantial compliance with the Act and ordinances is a condition precedent to jurisdiction to grant consent in relation to — the contents of the application …; the advertisement of the application …; and service of notice of the application on abutting owners … The imperative underlying my conclusion … is the importance of a faithful adherence to the provisions of the Act and ordinances so that the interests of all parties concerned … are protected.’ Decisions on the Act have established that substantial compliance with provisions of this nature including the obligation to prepare or submit an environmental impact statement, is a condition of validity: see Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 415, 418; Guthega Development v Minister at 360; 408–409; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 380, 389; Schaffer Corporation v Hawkesbury City Council at 29–30; Gemsted Pty Ltd v Gosford City Council (1993) 78 LGERA 395; and Curac v Shoalhaven City Council (1993) 81 LGERA 124. The judge held that substantial compliance had been achieved and invalidity was avoided because the fauna impact statement was available to the Council before it made its decision, and all objections had been fully considered on their merits in the appeal. An appeal in which the merits can be fully considered may cure an invalidity in the primary decision. … Accordingly where a consent authority is bound to refuse consent because of noncompliance with essential preconditions, the Land Court on a merits appeal will be in no better position. This was the view taken … [p 360] in Scurr and Pioneer Concrete: see Scurr at 267–258. In Pioneer

Concrete at 518; 370 Wilson J said: ‘One may never know whether a proper application, and adequate advertisements would have alerted other citizens who would have exercised their right to participate as objectors.’ The same view has been taken in the Land Court: see Curac v Shoalhaven City Council at 1219–130. The problem in these cases is that the Court has no means of knowing whether other objectors may have come forward and other objections been raised had there been proper compliance with the statutory requirements. In my opinion, therefore, the appeal did not cure the invalidities in this case and did not achieve substantial compliance with s 77(3)(d1) and s 86.” Conclusions Thus, in Helman, the NSW Court of Appeal adopted the following conclusions: • The effects of non-compliance with statutory conditions governing the lodgment of DAs and the granting of development consents require a construction of the relevant statutory provision to determine whether the legislature intended the non-compliance to result in invalidity or not. • The Courts have insisted on substantial compliance with the requirements for EISs and FISs (and SISs), without being overly technical. • One of the purposes of the EPA Act was to ensure that the consent authority had the benefit of the views of objectors before determining a DA following Scurr v Brisbane City Council (1973) 133 CLR 242; 28 LGRA 50 (Scurr). • Following Pioneer Concrete, substantial compliance is a condition precedent to the granting of consent in relation to the contents of the applications, advertisement and notice to neighbours.

• The failure to exhibit the relevant document (in this case, an FIS) meant that the consent authority had no means of knowing whether other objectors may have come forward or other objections may have been raised. A consent authority is bound to refuse to approve a DA where there is a non-compliance with essential preconditions.

¶34-130 Botany Bay City Council v Remath Investments No 6 Pty Ltd In Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364 (Remath), the NSW Court of Appeal considered whether a DA had been “made”. The reason for this related to the application of savings and transitional regulations consequent upon the commencement of the Environmental Planning and Assessment Amendment Act 1997 No 152 (1997 Amendments) which radically changed the provisions of Pt 4 of the EPA Act. Hence, the ratio decidenda of this case is not relevant for current purposes but some obiter dicta by Fitzgerald JA (with whom Handley JA and Stein JA agreed) are of relevance: Fitzgerald JA held at paragraphs [47]–[50] as follows (footnotes excluded): “47 Whether or not it is technically correct to say that a development application is ‘invalid’ while the requirements of s 77 of the unamended Act are not substantially complied with, references to ‘invalidity’ which can be ‘cured’ are capable of suggesting that a ‘cure’ is retrospective. If a development application in respect of which there has not been substantial compliance with the requirements of s 77 is accurately described as incomplete and ineffective until there is substantial compliance, it becomes obvious that it is only then that a development application is completely or effectively ‘made’. 48 In my opinion, the language of s 77(3) of the unamended Act requires the opposite conclusion to that reached by Pearlman J in Holiday Villages (Byron Bay) Pty Ltd v Byron Council and the

Land and Environment Court in the present proceedings. Where a development application ‘is not in respect of designated development’, the application must ‘contain … or … be accompanied … such information and particulars as may be prescribed’. By s 77(3)(d) of the unamended Act, where a development application ‘is in respect of designated development’ it must ‘be accompanied by’ an EIS in the prescribed form. In either case, by s 77(3)(e) the development application must be ‘accompanied by’ the prescribed fee. Subsection 77(3)(b) requires that a development application be ‘made’ not only in the prescribed form but in the prescribed manner. A development application in the prescribed form which is not ‘made’ in the manner prescribed by s 77(3)(c) or (d) and (e) is not ‘made’ in the prescribed manner. 49 There is no rational basis for attributing a different meaning to the word ‘made’ in cl 11 of the transitional regulation from the meaning which the same word bears in s 77(3). 50 In my opinion, the remediation development application was not initially ‘made’ in the prescribed manner because there was no substantial compliance with s 77(3)(d) of the unamended Act and clauses 5 to 52 of the unamended regulation. It was not ‘made’ within the meaning of s 77(3) of the unamended Act and cl 11 of the transitional regulation until 24 December 1999 when the transitional EIS was lodged.” Stein JA (with whom Handley JA agreed) held at [5]–[7] and [13]–[18]: “5 During the 1980s and early 1990s there were a number of decisions in the Land and Environment Court which considered the requirement for an owners’ consent under s 77(1) including the time at which the consent of the owner must be forthcoming. These include: Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council (unreported, Land and Environment Court, NSW, Perrignon J, 8 July 1981); Crowley v Hastings Municipal Council (1982) 4 APA 115; King v Great Lakes Shire Council (1986) 58 LGRA 366; Royal Motor Yacht Club v Sutherland

Shire Council (unreported, Land and Environment Court, NSW, Bignold J, 26 June 1987); Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55; Amacon Pty Ltd v Concord Municipal Council (unreported, Land and Environment Court, NSW, Hemmings J, Nos 10541 and 20532 of 1987, 2 December 1987); Reeson v Warringah Shire Council (unreported, Land and Environment Court, NSW, Cripps J No 10160 of 1990, 16 October 1990); Wharf II Pty Ltd v Sydney City Council (unreported, Land and Environment Court, NSW, Cripps J, No 10569 of 1990, 15 February 1991); Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52. 6 As to the latter aspect, the most direct authority is Amacon Pty Ltd v Concord Municipal Council wherein Hemmings J said at page 11: ‘However, as the lack of the owner’s consent can be cured at any time up until the determination of the application (see Woolworths Ltd & Ors v Bathurst City Council (Unreported, Land and Environment Court, 24 September 1987), Crowley v Hastings Municipal Council (1982) 4 APAD 115, I decline to make any order which would prevent the further hearing of the appeal.’ 7 It has not been suggested that the cases in the Land and Environment Court relating to the timing of the provision of an owner’s consent to a development application have been incorrectly decided. … 13 I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application. 14 That is not to say that a development application is invalid or

void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subparagraphs (c), (d) or (d1) or the fee under subclause (e) of s 77(3). 15 For the purposes of this case, the construction which I favour means that the EIS has to substantially comply with the requirements of the unamended Act prior to the appointed day (1 July 1998) for it to qualify under cl 11 as a development application made but not determined under the unamended Act. 16 ‘Made’ in cl 11 of the transitional regulation must mean ‘made’ in accordance with s 77 of the unamended Act and this includes substantial compliance with s 77(3)(d). 17 It is common ground that it was not so made in that the development application was not accompanied by an EIS which substantially complied with the unamended Act as at the appointed day. 18 In my view, a development application cannot be seen as ‘made’ unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete.” Conclusions Thus, Remath provides the following conclusions: • Where a DA is lodged without substantial compliance with the statutory requirements, it is incomplete and ineffective until there is substantial compliance. It is only when substantial compliance has been achieved that the DA has been made. • Where a DA is incomplete at the time of lodgment, it is not invalid or void. Substantial compliance may be satisfied at some later time.

¶34-140 Currey v Sutherland Shire Council

In Currey v Sutherland Shire Council [2002] NSWLEC 195, Lloyd J in the NSWLEC heard a challenge to the validity of a development consent for a dual occupancy and strata subdivision of land at Cronulla. The applicant contended that the DA could not have been made as at the date of lodgment, as the subdivision component of the dual occupancy DA was prohibited by the applicable LEP. In relation to this submission, Lloyd J held at paragraph [42]: “42 I turn now to Mr Preston’s first submission. As noted above, it is submitted that when the development application was made on 25 February 2000, the subdivision component was prohibited by cl 25(1) of the 1993 LEP and did not become permissible until 23 June 2000. The position may be compared with the statutory requirement for a development application to be made by the owner of the land to which the development application relates or by any other person with the consent in writing of the owner of that land (cl 46 of the Environmental Planning and Assessment Regulation 1994, now cl 49 of the Environmental Planning and Assessment Regulation 2000). It has been held that this provision or its equivalent is a mandatory provision (Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120, North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435). Nevertheless, the consent of the owner may be provided at any time before determination of the development application (Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 111 LGERA 446, Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd [2002] NSWLEC 106). This suggests that whilst the requirement is mandatory, it is nevertheless procedural. Applying, by analogy, the same reasoning to the present case, there is nothing to suggest that the development application is not valid if, during the course of its consideration by the council, the suggested invalidity is cured before it is determined. It seems to me that ss 77 and 78 of the EPA Act are procedural. Moreover, in Hornsby Shire Council v Devery (1965) 12 LGRA 34 it was held (at 40) that a council may waive any condition precedent for the exercise of its powers. In the present case the council effectively waived the requirement for part of the development to which the application relates to be permissible development at the time the

development application was lodged. The evidence shows that the addition of cl 25(3) into the 1993 LEP was then anticipated. The council not only accepted the development application, but also accepted the development application fee. Finally, it seems to me that if the provisions of the EPA Act upon which Mr Preston relies are procedural, any defect or irregularity may be cured by regarding the development application as having been made nunc pro tunc (see Emanuele v Australian Securities Commission (1997) 188 CLR 114). This would have the effect that when cl 25(3) of the 1993 LEP was made, the development application, if not originally valid, is to be then regarded as valid so as to have the same legal force and effect as if it had been validly made on 25 February 2000.”

¶34-150 Currey v Sutherland Shire Council and Russell On appeal to the NSW Court of Appeal in Currey v Sutherland Shire Council and Russell [2003] NSWCA 300 (Currey), Spigelman CJ (with whom Sheller JA and Foster AJA agreed) in relation to this issue held at paragraphs [34]–[35]: “34 In my opinion, there is no basis for inferring a prohibition from a permissive and procedural scheme. Where the application is made to a body which is not a relevant consent authority (as in Chambers v Maclean Shire Council [2003] NSWCA 100) then the application is of no legal effect. That does not mean that all applications, not finally disposed of, can never have legal effect. If the law changes, so can the efficacy of the application. 35 I see very little, if any, scope in this legislative scheme for the concept of a ‘valid’ application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process.” Further, the applicant contended that the DA was inadequate or

incomplete because the documents submitted did not describe or delineate the proposed strata subdivision in the form required for registration of the strata plan. Lloyd J at first instance held at paragraphs [46]–[47] as follows: “46 The respondents submit that insofar as the development application relates to the subdivision, it was not in a form which would be competent to enable the making of an application for registration of a strata plan; the Strata Schemes (Freehold Development) Act prescribes the form of plans intended to be registered as a strata plan; the development application was nevertheless adequate to enable the council to determine it; in particular, the council understood where the line of subdivision was intended to be; and no further information could reasonably be required. 47 In my opinion the submissions of the respondents are to be preferred. This was not an application for registration of the strata plan. The requirements of the Strata Schemes (Freehold Development) Act for a location plan, a floor plan and a schedule of unit entitlement do not apply to a development application. An examination of the site plan submitted to the council with the development application clearly shows a division of the property into two lots along the line of the common wall and extending to the property boundary (although not assigning a lot number to each). It is self-evident that this is how the physical subdivision was understood by the council. The provision of any easement for service, or access, or support, or drainage would, if required, appear on the plan intended to be lodged for registration of the strata plan and which must be certified by either the council or an accredited certifier under ss 37 or 37A of the Strata Schemes (Freehold Development) Act. It is thus apparent that the process of certification will require the consideration of such conditions of development consent as drainage and other services and any necessary easements therefor. It also follows that there can be no inference that the council failed to give consideration or proper, genuine and real consideration to the development application to which it granted consent.”

On this issue, on appeal the NSW Court of Appeal agreed with the reasons of Lloyd J (see paragraphs [38]–[43] of the NSW Court of Appeal judgment). Conclusion The key conclusion derived from Currey is as follows: • Where a DA is incomplete or in breach of formal requirements, it is not a question of whether it is a “valid” application. There is no prohibition on making such an application. If the deficiency is capable of being amended and provided it is amended before the relevant time in the process (be it prior to determination of a DA or prior to exhibition), any resulting consent is valid.

¶34-160 Cranky Rock Road Action Group Inc v Cowra Shire Council In Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339 (Cranky Rock Road), the NSW Court of Appeal considered an appeal as to whether a development consent was invalid because the DA in relation to which the consent was granted was not accompanied at any time by a Statement of Environmental Effects (SEE). The requirement for an SEE was derived from the provisions of cl 50 of the EPA Regulation providing that a DA must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1 of the EPA Regulation. One of the documents listed to accompany a DA was an SEE, in the case of development other than designated development. Clause 51(1) of the EPA Regulation (as amended by the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 (NSW) empowers a consent authority to reject a DA where it is not accompanied by any of the documents specified in Pt 1 of Sch 1, including an SEE. Tobias JA (with whom Young CJ in Eq and Campbell J agreed) noted that the provisions in the EPA Act and Regulation in relation to an EIS were considerably detailed and in the Act itself in contrast to those relating to an SEE which were not in the EPA Act, but in the

Regulation. Tobias JA noted that the reference to an SEE accompanying a DA meant the lodgment of an SEE with the consent authority prior to the determination of the DA (paragraph [35]). Tobias JA noted that in Helman and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, the courts had highlighted the importance and significance of both an EIS and an SIS in the decision-making process. Tobias JA held at paragraphs [60]–[62], [65]–[67], [69], [73]–[74], [76], [80] and [84]–[90] as follows: “60 The appellants submitted that there was no difference between the purpose or object of an SEE on the one hand and an environmental impact statement or a species impact statement on the other in terms of its status and importance in achieving the object of the EPA Act of protecting the environment. This was exemplified by the fact that cll 2(e) and (f) of Pt 1 of Sch 1 to the 2000 Regulation mandated that a development application should be accompanied by an environmental impact statement in the case of designated development, and a species impact statement in the case of land that is or is part of a critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities or their habitats. 61 Accordingly, so the argument ran, if it was accepted jurisprudence that a consent was invalid if an application for a designated development was unaccompanied by an environmental impact statement or, if the development was likely to significantly affect threatened species etc., was unaccompanied by a species impact statement, why should the position be different if the development application was unaccompanied in the case of non-designated development by an SEE? All three statements were given equal significance in cl 2(1) of Pt 1 of Sch 1. 62 Furthermore, cl 51(1)(d) [sic. This should read “(b)”] empowered the consent authority to reject a development application within seven days of receipt if it was not accompanied by a document as specified in cl 2 of Pt 1 of Sch 1 which included not only an SEE but also an environmental impact statement and

a species impact statement where required. Accordingly, if as a result of Helman and Timbarra an environmental impact statement or a species impact statement were each ‘an essential condition’ or an ‘essential preliminary’ to the grant of a valid consent, it must logically follow that an SEE should be similarly characterised. … 65 In my opinion the appellants’ submissions should be rejected. Thus cl 51(1)(b) is general in its application and applies to all the documents referred to in cl 2(1) of Pt 1 of Sch 1 of which there are some twelve. Further, there is no obvious significance in the fact that pursuant to cl 51(1)(b) the consent authority may reject a development application which is unaccompanied, where otherwise required, by an environmental impact statement or a species impact statement: what is significant is that that rejection can extend to a development application which is unaccompanied by an SEE. 66 If the appellants’ submissions are correct and failure to comply with cl 2 of Pt 1 of Sch 1 results in an invalid development application, then a grant of consent to that application would be invalid even thought [sic. Should be “though”] it omitted a site plan of the land or, if a site plan was included, it failed to comply with any of the matters required to be indicated on that plan pursuant to cl 2(2) of Pt 1 of Sch 1. 67 The same observation can be made with respect to cl 2(3)(b) if the required sketch failed to show room sizes. Where does one draw the line? Is it an all or nothing situation? Handley JA in Helman drew the line between matters of procedure and form on the one hand and matters of substance on the other. Given the nature of an SEE compared with an environmental impact statement and a species impact statement, is the first a matter of form and the others matters of substance? … 69 Most telling is that it is only the obligation to submit an

environmental impact statement and/or a species impact statement with a development application which is retained in the EPA Act itself, namely, in s 78A(8). All other ‘things … required to be submitted with’ such an application are relegated to the regulations by s 78A(9). Thus, in my opinion, the singling out in s 78A(8) of an environmental impact statement and a species impact statement for particular attention evinces an intention on the part of the legislature that it is only those statements that must accompany a development application in the case of designated development on the one hand and development likely to significantly effect a threatened species, populations or ecological communities on the other on pain of a breach of that obligation including of any consent granted in their absence. … 73 There is no logical reason, in my view, why a consent authority cannot grant consent to a development application that fails to be accompanied by information or documents specified in Pt 1 of Sch 1 where the absence of that information or those documents is not in the particular case of such significance as to prevent it from performing its statutory duty under the EPA Act when determining the application. 74 There is every reason to accept the proposition that a consent authority would only reject a development application if it did not contain information or was not accompanied by a document specified in Pt 1 of Sch 1 where it considered that the absence of that information or the non-provision of that document was relevant to its proper determination of the application. If the authority considers that the absence of particular information or documents which are otherwise required to be contained in or to accompany the application by cl 50(1)(a) of the 2000 Regulation does not prevent or hinder the performance of its statutory duties in determining the application, then there is no logical reason why it should not proceed to do so without exercising its powers under cl 51(1). …

76 The foregoing observations apply to an SEE. If the development application is for a development which the consent authority considers should be accompanied by an SEE to assist in the performance of it statutory functions, then it has the power to reject the application pursuant to cl 51(1)(b) where an SEE has not been provided. Alternatively, if the application is one where the nature of the development and its likely environmental impact (if any) is such that the consent authority considers that it is able to properly perform its statutory functions without the need for an SEE, there would be no reason in logic or principle why it should not do so without the legal consequence of any grant of consent to such an application being invalid. … 80 The very nature of an environmental impact statement and a species impact statement prepared in accordance with what are detailed statutory requirements is, as the primary judge noted, of a different order than that of an SEE. It is for those reasons that they are treated differently by the legislation. … 84 Thus, in MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581 at [61], Jagot J observed with respect to whether a particular SEE was sufficient to discharge the statutory obligation to provide it: ‘… The required content of a statement of environmental effects provided for by cl 2(4) of Sch 1 operates at a high level of generality. Such a document is required only to ‘indicate’ the specified matters. The specified matters are basically ‘environmental impacts’, ‘expected harm to the environment’ and steps to protect the environment from that harm. The Regulation leaves it to the author of the statement of environmental effects to identify for themselves whether there are any such ‘environmental impacts’ or ‘expected harm’. The Regulation does not require the author of a statement of environmental effects to have any qualifications.’

85 Having concluded that the SEE available to the council in that case was sufficient to discharge the statutory obligation to provide it, her Honour then proceeded to determine whether, had she reached a contrary conclusion, it was a purpose of the EPA Act and the 2000 Regulation that where a development application was not accompanied by an SEE so that there was a breach of cl 50(1)(a), any consent granted to that application would be invalid within the meaning of Project Blue Sky. 86 Her Honour referred to the decision of the primary judge in the present case to the effect that such a breach could not be classified as one giving rise to invalidity. She then proceeded to set out her own independent reasons as to why the statutory scheme supported that conclusion. They were as follows: ‘63 … All development under Pt 4 of the EPA Act except for designated development is subject to the requirement that a statement of environmental effects be lodged. Development expected to have the potential for significant environmental impacts has been separated into the designated development category, and is subject to a more onerous assessment scheme of regulation. The non-designated development class covers a vast range from the small and simple to the large and complicated. The different treatment of the two classes (designated and not designated) is clear. The terms of s 78A (‘A person may, subject to the regulations …’) indicate a permissive regime. The requirement for a statement of environmental effects is contained in the Regulation (s 78A of the EPA Act and cl 50(1)(a) of the Regulation, with Pt 1 of Sch 1). Contrast these provisions with the requirements for an environmental impact statement and species impact statement contained in the EPA Act that are expressed in mandatory terms — ‘a development application must …’ (s 78A(8)). The public notification requirements for designated development are also contained in the EPA Act (s 79). The public notification requirements for non-designated development are left to the Regulation, environmental planning instruments and development control

plans (s 79A). The Regulation only provides for notification of advertised development (Div 7 of Pt 6). Hence, as in this case, the notification requirement arose from the terms of a development control plan. 64 The Regulation contains detailed provisions for the preparation of environmental impact statements by persons holding professional qualifications. These persons are required to certify both that the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and that the information contained in the statement is neither false nor misleading. An environmental impact statement may only be prepared after the applicant for consent has consulted with the Director-General about the form and content of the statement (Div 4 of Pt 6). There are no equivalent obligations with respect to a statement of environmental effects. Indeed, any person may prepare a statement of environmental effects. The required content of a statement of environmental effects is merely to ‘indicate’ certain matters (cl 2(4) of Pt 1 to Sch 1). Those matters are expressed at a high level of generality. The identification of any impacts is a matter for the author of the document. 65 Once it is recognised that any person can prepare a statement of environmental effects, and that the identification of environmental impacts and steps to protect against expected harm are within the discretion of the author, the relatively limited role of a statement of environmental effects in the statutory scheme is apparent. The capacity for consent authorities to request further information (cl 54) and the inescapable obligations of consideration imposed on consent authorities in s 79C(1) support this conclusion. 66 The above matters disclose that a statement of environmental effects cannot and does not play an equivalent role to an environmental impact statement in the statutory scheme. A document that may be prepared by any person, with such flexibility in terms of content, cannot be

characterised as essential to the public participation and assessment requirements and objects of the EPA Act. Moreover, there is obviously room for debate about what is and is not a statement of environmental effects, depending on the nature of the development in question. Invalidating consents as of course because of the absence of a statement of environmental effects, in this context, could not be seen as promoting the objects of the EPA Act. Serious public inconvenience would result if all consents for development, no matter how insignificant, were invalid because the application lacked a statement of environmental effects, and notwithstanding a thorough consideration by the consent authority of all relevant matters under s 79C. 67 Nothing I have said should be understood as suggesting that the obligation to provide a statement of environmental effects has been set at naught. The obligation remains. Applicants who fail to comply with the obligation run numerous risks. The consent authority may reject the development application outright in reliance on cl 51 of the Regulation. The consent authority may require further information and ‘stop the clock’ delaying the accrual of appeal rights under cl 54. The consent authority may exercise its discretion to refuse to grant development consent having regard to s 79C(1) because of inadequate information. Invalidity of the consent, however, cannot be seen as a purpose of the legislation by reason of the absence of a statement of environmental effects.’ 87 If I may say so with respect, her Honour’s reasons as set out above encapsulate in a far more logical and concise manner those which I have sought to advance in reaching the same conclusion. I therefore gratefully adopt her Honour’s reasoning which I find most persuasive. 88 At the end of the day, as the respondents submitted, the marked distinction between the requirement for all development applications for non-designated development to be accompanied by an SEE on the one hand and the special classes of

development application referred to in s 78A(8)(a) and (b) of the EPA Act which are required to be accompanied by an environmental impact statement or a species impact statement (as the case may be) on the other, distinguishes the present case from those of Helman and Timbarra. Applying both a contextual and purposive interpretive approach to the combined operation of the provisions of ss 78A(8) and (9) of the EPA Act and cll 50(1)(a) and 51(1)(b) and Pt 1 of Sch 1 to the 2000 Regulation does not reveal any intent or purpose on the part of the legislature that failure to provide an SEE, albeit constituting a breach of cl 50(1) (a), shall invalidate any consent granted to a development application in respect of which no SEE has been provided. 89 Given the powers of a consent authority in cls. 51 and 54 of the 2000 Regulation (and particularly the former) and the essential differences to which both the primary judge and Jagot J have referred between an SEE on the one hand and an environmental impact statement and species impact statement on the other, I find it impossible to ascertain a clear legislative intention to invalidate every consent granted to a development application which is unaccompanied by an SEE. 90 Although I have no difficulty in accepting that the objective of the EPA Act to protect the environment would be prejudiced by the failure of a development application to be accompanied by an environmental impact statement or a species impact statement in circumstances where those statements are mandated by s 78A(8), in my opinion the same cannot be said with respect to the failure of a development application to be accompanied by an SEE, especially in circumstances where the consent authority has not considered that the absence of that document warrants rejection of the application pursuant to cl 51(1)(b) of the 2000 Regulation.” In Cranky Rock Road the NSW Court of Appeal drew a distinction between the requirements for matters to be included in a DA and accompanying material which were specified in the Act itself as opposed to those specified in Pt 1 of Sch 1 of the EPA Regulation. Where material to be submitted with a DA is specified in the Act, such

as the requirement for an EIS and SIS, the NSW Court of Appeal held this indicated a legislative intention that non-compliance would affect the validity of any resulting consent. However, the NSW Court of Appeal held that there is no reason why consent could not be granted to a DA that fails to be accompanied by information or documents specified in Pt 1 of Sch 1 where the absence of that information or those documents is not in the particular case of such significance as to prevent the consent authority from properly determining the DA. Thus, a consent authority would only reject a DA which did not contain information or documents specified in Pt 1 of Sch 1 if it considered the absence of such information or documents was relevant to its proper determination of the DA. Otherwise, the consent authority could proceed to determine the DA in the absence of such information or documents. The NSW Court of Appeal applied this principle to an SEE, noting that an SEE was a document of significantly less status and importance than an EIS or SIS. As a result, the NSW Court of Appeal held that the failure of an applicant to submit an SEE with a DA would not invalidate any resulting development consent. It is noted that the Minister for Planning sought and was granted leave to be joined as a party in the NSW Court of Appeal hearing in Cranky Rock Road, where the Minister made submissions in support of the appellant that the absence of an SEE made the resulting development consent invalid (see Cranky Rock Road at paragraph [7]). Following the decision of the NSW Court of Appeal in Cranky Rock Road, the NSW Parliament enacted the Environmental Planning and Assessment Amendment Act No 36 of 2008 (the 2008 Amendments) to reverse the NSW Court of Appeal’s decision. Section 3 and Sch 2.1[17] of the 2008 Amendments amended s 78A of the EPA Act as follows: “[17] Section 78A Application Insert at the end of section 78A (8) (b), before the note: , or (c) if the application is in respect of development not referred to in paragraph (a) or (b), a statement of environmental effects

prepared by or on behalf of an applicant in accordance with the regulations.” The 2008 Amendments received assent on 25 June 2008 but this provision has not been proclaimed to commence, nor have regulations been made as envisaged by the new s 78A(8)(c).

¶34-170 McGovern v Ku-ring-gai Council In McGovern v Ku-ring-gai Council [2008] NSWCA 209 (McGovern), the NSW Court of Appeal considered a challenge to the validity of a development consent for alterations and additions to a residential dwelling at Telegraph Road, Pymble. The primary issue in the proceedings related to issues of bias and prejudgment. However, the appellants also contended a breach of cl 50 of the EPA Regulation in that the DA was not accompanied by certain documents required by Sch 1, Pt 1 of the EPA Regulation, in particular a survey by a registered surveyor, an SEE and a heritage impact statement. Baston JA (with whom Spigelman CJ agreed and Campbell JA agreed only in part) considered the broad question of validity of a DA. He held at paragraphs [189]–[203]: “189 Although not applicable in the present case, it should be noted that s 78A contains within its terms express mandatory requirements, requiring, in respect of a wilderness area, consent to the development under the Wilderness Act 1987 (NSW) (sub-s (7)); in relation to a designated development, that the application be accompanied by an environmental impact statement (sub-s (8) (a)), and in areas containing critical habitat or threatened species, a species impact statement (sub-s (8)(b)). It is well-established that, absent substantial compliance with such statutory prescriptions, there can be no valid determination of such an application. There are three principles which underlie that conclusion. 190 First, the language throughout is mandatory and thus invokes the principles set out in Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242 at 255 (Stephen J); see also Helman v Byron

Shire Council (1995) 87 LGERA 349 at 358–359 (Handley JA, Kirby ACJ and Priestley JA agreeing). Secondly, the requirements are not in terms conditioned on an assessment by council of the need for such material. On one view that is understandable: if the environmental effects of a development are not self-evident, council might be inclined to waive the need for a statement of environmental effects. On the other hand, the purpose of environmental protection, identified in s 5 of the EP&A Act, may best be served by a universal requirement for a statement of environmental effects, which will be of greatest value in those cases where possible effects are not self-evident. Thirdly, if the requirements for a valid application are not dependent on the opinion of the consent authority, they are more properly seen as essential conditions for the exercise of power, the existence of which will ultimately depend upon the opinion of a court in the event of a challenge: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. 191 The terms of sub-s 78A(9), like those of sub-ss (7) and (8), are mandatory. There is no reason why they should be read as not prescribing essential conditions of a valid development application. They do not pick up all requirements of the EPA Regulation, but only those specifying ‘other things’ to be submitted with a development application. The principles established with respect to the predecessor to s 78A, s 77(3), would appear to be applicable. Thus in Botany Bay City Council v Remath Investments No. 6 Pty Ltd [2000] NSWCA 364; 50 NSWLR 312, Stein JA stated at [14]: ‘[14] That is not to say that a development application is invalid or void if it is not accompanied by, for example, an environmental impact statement, species impact statement or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document … or the fee … …

[18] In my view, a development application cannot be seen as ‘made’ unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete.’ 192 There may be countervailing considerations. One is the prescription in s 78A itself of the need, in particular cases, for an environmental impact statement or a species impact statement: see s 78A(8). That course may be seen to give greater legal import to those requirements, as compared with requirements specified by regulation. Given the wide scope of ‘development’ requiring consent, it may be thought unlikely that Parliament intended that invalidity should flow from failure to comply with matters set out in regulations. Another important aspect underlying Scurr and Helman was the involvement of the public arising from requirements for the exhibition or notification of particular applications, which were not applicable in the present case. 193 In addition, there are questions as to the construction of the EP&A Regulation itself. In particular, it is necessary to consider whether, despite its mandatory language, the documents identified in Schedule 1, cl 2 are properly treated as things required to be submitted with a development application for the purposes of s 78A(9). 194 The requirements in the EP&A Regulation must be considered in their context, including cl 51(1) which empowers a consent authority to ‘reject’ a development application within seven days after receiving it, if it does not comply with the requirements of cl 50(1)(a) or is ‘illegible or unclear as to the development consent sought’. It might be thought curious if such a development application which was not so rejected was nevertheless invalid. Indeed, if it were not a development application at all, it is curious that cl 51 should refer to it as such. If the application is rejected, it is taken for the purposes of the Act ‘never to have been made’ and the application fee must be refunded: cl 51(3) and (4). On the other hand, it may be that cl 51 merely allows the Council to cut short any uncertainty which might

arise from the lodgement of an incomplete application. If that were the case, the approach of Stein JA in Remath Investments would have continued operation in those cases where the application was not rejected. 195 As noted above, the requirements referred to in the EP&A Act, s 78A(9), are limited to those ‘other things … required to be submitted with the development application’. It does not refer to information to be contained in the application, or the form of the application, or the manner in which it is to be lodged. It refers only to accompanying things, such as documents and then only to those documents made mandatory by regulations. This would not in terms pick up the requirements of cl 50(1)(a) in relation to the information to be included, nor the requirement in par (b) in respect of the form of the application. It would, however, pick up the requirement in respect of accompanying documents in par (a) and the requirement for payment of the fee in par (c). On that basis, the only compulsory documents required by Schedule 1 to the EP&A Regulation were a site plan, a sketch of the development and a statement of environmental effects. The requirements of a site plan are identified at cl 2(2) of Schedule 1, but all that is required in respect of the various elements is that the plan ‘must indicate’ those matters. Similarly, cl 2(4) merely requires that a statement of environmental effects ‘must indicate’ the environmental impacts of the development. The sketch ‘must indicate’ information as to the location of any proposed buildings or works, the detail of which is not relevant because it is not in issue in the present case: see cl 2(3). 196 Parliament used mandatory language in s 78A. There is no explicit suggestion that a distinction is to be drawn between the requirements specified in sub-s (8) and those which the regulations may specify, pursuant to sub-s (9). The only indication that a failure substantially to comply with the requirements might not necessarily lead to invalidity is to be found in the power to reject an application contained in cl 51. However, that provision in the EP&A Regulation cannot in principle affect the construction of the statute and, in any event, has its own function, as discussed

above. That function is not inconsistent with the documents prescribed in Schedule 1, cl 2, being ‘requirements’ for the purposes of s 78A(9). 197 It is not to be doubted that the requirements of s 78A(8) are compulsory, in the sense that failure to comply will result in invalidity of the ultimate determination: see Helman. Nor is it in doubt that the need for a statement specified in that provision is a question for objective determination, ultimately by a court if the circumstances of a particular case are in doubt, and not a matter for the opinion of the consent authority: see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 and, of direct relevance, Timbarra Protection Coalition Inc. 198 However, the approach to be taken by this Court in relation to s 78A(9) must accord with more recent authority, including Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81. In that case, Tobias JA (Young CJ in Eq and Campbell J agreeing) rejected this approach, concluding that the failure to include a statement of environmental effects did not invalidate the consent: at [60]–[90]. A significant element in his Honour’s reasoning was that the statement of environmental effects served a less central role than the statements required under s 78A(8) and was not the subject of any detailed requirements either as to the qualifications of its author or its contents. Curiously, this reasoning was the reverse of the objection to a mandatory requirement engaging invalidity for non-compliance discussed in Helman. As his Honour correctly noted at [48], Handley JA in Helman drew a distinction between different mandatory requirements (then found in s 77(3)), noting that ‘the content of these requirements vary’: Helman at 355. Nevertheless, the argument in Helman was not that requirements easily satisfied should not be treated as engaging invalidity for non-compliance, but that the heavy burden of preparing an environmental impact statement within the terms of the legislation was so great as to make it highly unlikely that Parliament intended non-compliance to engage invalidity. It was that

argument which was rejected in Helman, on the basis that the courts ‘have insisted substantial compliance without being over technical or astute to find fault’: at 356. It follows that the lower the level of particularity prescribed by the statute, the easier will be substantial compliance: cf Cranky Rock Road at [66]–[68]. 199 Another strand in the reasoning in Cranky Rock Road was that one could well envisage circumstances in which a consent authority could reasonably reach its decision without one of the prescribed documents, ‘where the absence of that information or those documents is not in the particular case of such significance as to prevent it from performing its statutory duty under the EPA Act when determining the application’: at [73]. However, it is by no means clear that the legislation vested power in the consent authority to determine what was and was not mandatory, in relation to the accompanying documents prescribed by regulations, but not in relation to a species impact statement: cf Timbarra Protection Coalition. 200 The Court in Cranky Rock Road felt able to distinguish the reasoning in the decisions of this Court in Helman, Timbarra Protection Coalition and Kindimindi Investments, preferring the contrary reasoning in a series of cases in the Land and Environment Court. There was no challenge to the correctness of the decision in Cranky Rock Road and accordingly this Court should apply it in the present case. On that approach the appellants must fail because absence or inadequacy of documents required by Schedule 1, cl 2, will not spell invalidity of the application. However, for reasons to be explained, even a stricter approach to the requirements of documents accompanying a development application will not assist the appellants. (b) Application of principles 201 On the legal assumptions most favourable to the appellants, the development applications had to be accompanied by a site plan, a sketch of the development and a statement of environmental effects in order for the determination of the

application by Council to be valid. The appellants’ case, however, took the matter a step further, arguing that other documents, including a survey plan and a heritage impact statement were required by the Council’s own guidelines for development applications. However, those guidelines did not, of themselves, involve statutory preconditions to the exercise of power by the Council as a consent authority. Such material could only be considered mandatory if it were necessary in order for the Council properly to carry out its consideration of relevant matters, pursuant to s 79C(1) of the EP&A Act. As already explained, the primary issue in the case was the effect of the construction of the proposed carport on the heritage values of the appellants’ neighbouring property, which was a listed ‘heritage item’, based on views of the property from the street. It could not be said that the Council did not give appropriate consideration to that issue. How it set about that task was a matter for it. The absence of a survey plan or a heritage impact statement did not of themselves affect the validity of the consent. In fact there were two heritage impact assessments before the Council and it had conducted a site inspection. 202 So far as the site plan was concerned, evidence had been tendered in the Land and Environment Court demonstrating inaccuracies and errors in the site plan filed with the 2005 application. However, it was only necessary that the plan substantially comply with a requirement that it ‘indicate’ the matters referred to in cl 2(2) of Schedule 1 of the EP&A Regulation. As explained in Helman, the Court will not approach this question in a technical manner, nor be astute to find fault: at 356. The evidence was not of a kind which established a major deficiency necessary to demonstrate substantial non-compliance with this lenient standard. 203 In relation to the statement of environmental effects, the primary complaint was that the statement lodged in support of the application had not been ‘certified’ as required by the Council’s guidelines for preparation of supporting documentation. The ‘certification’ required by Council was not a statutory requirement.

In any event, the statement was certified and the appellants’ complaint was that the certification in the second application was a photocopy of the document from the earlier application which contained inaccuracies in the plans. The challenge is legally misconceived and was correctly rejected by the primary judge as a ground of invalidity. That conclusion was in accordance with Cranky Rock Road and would have been rejected even if the alternative legal analysis suggested above were to be applied.” Campbell JA agreed with the reasons of Basten JA, save in respect of three qualifications, one of which was stated at paragraph [235] as follows: “235. The first is that I do not join in the implicit criticism of the decision in Cranky Rock Road (paragraphs [189]–[200] above).” Campbell JA provided no further discussion on this issue in his judgment. In McGovern, the NSW Court of Appeal considered again the provisions of s 78A relating to what must be submitted with a DA. It noted that the requirements for an EIS and SIS are expressed as mandatory requirements and that it is well-established that there can be no valid determination of a DA without substantial compliance with those requirements based upon the following principles: • the language used is mandatory • the requirements are not predicated upon the consent authority identifying a need for such material, and • the requirements are not dependent upon the opinion of the consent authority, but they are more properly viewed as essential conditions for the exercise of power. The NSW Court of Appeal noted that s 78A(9) in requiring that the things specified in the regulations are mandatory is the same as s 78A(8) requiring an EIS and SIS. Hence, there is no reason why these are not equally essential conditions for a DA. The NSW Court of Appeal noted the requirement for an EIS and SIS may have greater

legal import as they are in the Act itself and they have an important role in public involvement. The NSW Court of Appeal also noted that the mandatory language of s 78A(9) may not extend to all the matters listed in Sch 1 unless they are properly things required to be submitted with a DA for the purposes of s 78A(9). Thus, it would not include information in the application itself or the form of the application. Using this analysis, the compulsory documents required by Sch 1 of the EPA Regulation are a site plan, a sketch of the development and an SEE. The NSW Court of Appeal noted that the requirements for an EIS and SIS are compulsory and non-compliance will make any resulting consent invalid following Helman. Further, the need for an EIS or SIS is a question of objective determination ultimately by the courts and not a matter of the opinion of the consent authority. The NSW Court of Appeal then sought to relate the approach outlined by it in McGovern with the decision in Cranky Rock Road. Basten JA (with Spigelman CJ agreeing), while noting that there was no challenge to the correctness of the decision in Cranky Rock Road, criticised the approach in Cranky Rock Road on two bases: (1) The suggestion that, because a mandatory requirement was easily capable of being satisfied it should not result in invalidity for non-compliance, was the reverse of what was considered in Helman. But in Helman, the Court held that what was required was substantial compliance, not strict compliance. Where the statute required a document of lesser particularity than an EIS, then the easier it will be to meet the test of substantial compliance. (2) It is not clear that the legislation gave a consent authority the power to determine what was and was not mandatory in relation to documents required by the EPA Regulation to accompany a DA. It is noted that Campbell JA, who was part of the bench in Cranky Rock Road and concurred with Tobias JA’s judgment in that case, did not join in Basten JA’s criticisms of Cranky Rock Road. Somewhat reluctantly, Basten JA in McGovern followed the decision

in Cranky Rock Road and held that the absence of the documents did not affect the validity of the development consent. However, Basten JA held that by applying his alternative analysis, namely that what was required in s 78A(9) was substantial compliance, not strict compliance, his conclusion would have been the same. Given the equivalent language used in s 78A(8) and (9), the distinction drawn between the two provisions in Cranky Rock Road is difficult to discern. Basten JA’s alternative approach that s 78A(9) imposes a mandatory requirement, but that invalidity of any resulting decision would only flow if there was substantial non-compliance rather than strict non-compliance, sits more comfortably with the statutory language and the earlier decisions of Scurr and Helman.

¶34-180 Barrick Australia Ltd v Williams It is noted that the use of the concept of a “valid” DA in Currey has been criticised as being unhelpful by Basten JA (with whom McColl JA agreed) in Barrick Australia Ltd v Williams [2009] NSWCA 275 (Barrick) at paragraphs [33]–[34] as follows: “33 That issue, in turn, appears to have been obscured by reference to authorities concerning whether there was required to be a ‘valid’ development application. Thus the appellant relied, both in this Court and in the Court below, upon remarks of Spigelman CJ (with whom Sheller JA and Foster AJA agreed) in Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223 to the following effect: [Author note: Basten JA then quoted paragraph [34] of Spigelman CJ’s judgment in Currey which has been cited previously at ¶34-150.] 34 These remarks should be read in context. They were made in response to a submission that the application in question sought consent for prohibited development: at [30]. Nevertheless, the remarks remain pertinent in that the concept of ‘invalidity’ as applied to a permissive process, may be considered unhelpful. If the statute requires an application in writing signed by or on behalf of the applicant, it is possible to describe an oral

application as ‘invalid’, but more helpful to say that an essential precondition to the exercise of the statutory power has not been engaged, because no application in compliance with the statutory criteria has been made. In Timbarra, the relevant section of the EP&A Act required that, in specified circumstances, a development application was to be accompanied by a species impact statement. The absence of such a statement did not necessarily render the application ‘invalid’, but it did mean that an essential precondition to the exercise of the power to grant consent had not been satisfied.”

¶34-190 Land to which a development application relates Clause 50(1)(a) of the EPA Regulation provides that a DA must contain the information and be accompanied by the documents specified in Pt 1 of Sch 1. Part 1 of Sch 1 provides that a DA must contain “the address, and formal particulars of title, of the land on which the development is to be carried out” while one of the documents to accompany a DA is “a site plan of the land”. In relation to the requirement for owner’s consent, cl 49 of the EPA Regulation refers to “the land to which the development application relates”. Given the earlier discussion on the question of who determines what is the subject of a DA, it would be assumed that just as the question of what development is proposed rests with the applicant, so too would be the selection of what is the land on which the development is to be carried out. However, there is some contrary authority in a different statutory context in the High Court decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 (Pioneer Concrete).

¶34-200 King v Great Lakes Shire Council In King v Great Lakes Shire Council (1986) 58 LGRA 366 (King v Great Lakes), Cripps CJ in the NSWLEC considered a challenge to the validity of a development consent granted by the Council for the construction of a caravan park, camping area and associated facilities

at Seal Rocks. One of the grounds for invalidity argued was whether the DA was defective because part of the development, namely the rising mains and evaporative ponds for the sewerage disposal system, was outside the land (the subject of the DA). Cripps CJ held at p 378– 380 as follows: “Miss Blackman also submits that the development application is void because the development application does not extend to the whole of the land intended to be used by the development. It is submitted that because the evaporative ponds are a necessary and integral part of the development, the development application, to be valid, should have included the land proposed for the evaporative ponds. In Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; 44 LGRA 346, it was held that a development application was defective because it did not include the whole of the land proposed to be used for a quarry operation. In that case it failed to include the land to be used as an access road to the quarry. In these circumstances, the High Court held the development application was defective. [p 379] Miss Blackman submits that conformably with the reasoning of the majority the development application in the present case is defective because the land to which the development application ‘relates’ includes not only Lot 457 but also the land eventually proposed for the evaporative ponds. In Pioneer Concrete the court was concerned primarily with the definition of the word ‘use’ in the relevant Queensland legislation. Gibbs CJ and Aickin J (the minority) decided that the jurisdiction to entertain an application for the use of a portion of the land was not dependent upon there being included in the application other land, the use of which was necessarily involved in the proposed use. Wilson J determined that because the word ‘use’ was defined to include ‘any use which is incidental to and necessarily associated with the lawful use of the land in question’ any application to develop land which did not include in it the land to

be used incidentally to and necessarily associated with that lawful use was defective. Stephen J arrived at the same conclusion as Wilson J but added: ‘Even without the aid of this definition I should have thought that the applicant’s proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products: it included the construction and use of the access road. The land the subject of the use accordingly included the route of that access road. Were there any room for doubt as to this, the extended meaning of ‘use’ given by the latter portion of the definition removes it. The intimate connexion between the use of land and access to it requires little elaboration.’ Murphy J agreed with Stephen J. Miss Blackman submits that conformably with the observations of Stephen J referred to above, the development application in the instant case is defective. Pioneer Concrete was discussed by the New South Wales Court of Appeal in Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 422. In that case land outside the area of the authority was involved and included in the application. It was the converse of Pioneer Concrete. Hope JA, with whom Street CJ agreed, said: ‘In answer to any proposition that the consent might be valid although limited to the land within the two interim development orders the appellant relied firstly upon the decision of the High Court in Pioneer Concrete … In that case the High Court held that a development application was defective because the applicant’s failure to include in its application the request for permission to use land between the site of a proposed industrial development and the adjacent public highway as a route for the removal of products of the industry and for access to the site. It would seem that this definition is inapplicable to New South Wales because of the definition of ‘use’ in the relevant Queensland

legislation. However that may be, there are, in my opinion, special circumstances in the present case which would make the approach adopted by the High Court inapplicable to it. Its decision was directed to the situation where a responsible authority is concerned only land all of which lies in the area the subject of the relevant planning scheme. The principle could not be applied for example where the proposed development, including the means of access, straddled the boundary of two local [p 380] government areas each of which was the subject of a separate planning scheme with a different responsible authority.’ Hutley JA said: ‘What has happened here is the converse of the Pioneer Concrete case in that the impact of the development outside the area of authority has been at least involved in the application. That case is not authority for the present situation, even if the meaning of ‘use’ under the Brisbane Town Planning Act 1964 were applicable to the construction of this interim development order, which it is not. … It would seem therefore that Grace Bros is authority for the proposition that the jurisdiction of a council in New South Wales to entertain a development application is not dependent upon there being included in the application land the use of which is necessarily involved in the use the subject of the application. Accordingly, and notwithstanding that the evaporative ponds are a necessary part of the caravan park, I reject the submission that the development application is defective because it did not include in it land intended to be used for the ponds.’” Thus, in King v Great Lakes, the Court confirmed that a DA is not required to include all the components of a development, but that any

consent granted would not extend to those components for which consent was not sought in the DA.

¶34-210 North Sydney Council v Ligon 302 Pty Ltd Pioneer Concrete has been distinguished so far as the New South Wales planning law is concerned by the High Court in North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 (Ligon). In Ligon, a DA was lodged to redevelop the site of the North Sydney Club at North Sydney. Access to the Club site was via an easement across land owned by Century Plaza. The DA as lodged applied to the Club site, not the easement across the Century Plaza site. An issue in the High Court related to the use of the word “relates” then in s 77(1) of the EPA Act (now largely replicated in cl 49(1) of the EPA Regulation). The Council contended that the applicant needed the consent of the owners of Century Plaza to the DA. In the High Court, Brennan CJ, Dawson J and Toohey J, McHugh J and Gummow J held in a joint judgment at paragraphs [8], [14]–[15] and [18] as follows (footnotes excluded): “8. The context of s 77(1)(b) reveals the meaning of ‘relates’ in that paragraph. A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by s 76(2). The prohibition contained in s 76(2) is against the carrying out of a ‘development on land to which (a provision in an environmental planning instrument) applies’. Such a provision applies to particular parcels of land. A ‘development’ can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application ‘relates’ must therefore be the land on which the specified development is proposed to be carried out. … 14. In the present case, it may be that the use of the Century

Plaza land the subject of the easements for access to the Club site is an existing use for the purposes of s 109(2)(c), but an intensification of that use consequent on the development of the Club site would constitute a development of the land the subject of the easements for which consent would be required. That question has not arisen for determination. There is no development application for consent to a use of the land the subject of the easements. 15. The Council’s argument in support of the proposition that Ligon’s application is invalid for want of Century Plaza’s consent emphasises the wide import of the word ‘relates’. So much can be accepted. Gibbs J accepted the same proposition in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council, but the meaning of ‘relates’ depends on its context in the particular Act in which the term appears. … Pioneer Concrete is distinguishable from the present case both textually and factually. Textually, the definition of ‘use’ in the present case does not include incidental and associated uses. Factually, the development for which consent was sought in the Pioneer Case was use for the one purpose: the carrying out of quarry operations. In this case, the development for which consent is sought is the erection of a building. The use of the Century Plaza land as a carriageway and footway to the Club site is a different use that will be made either after the building development is commenced or, more significantly, after it is complete. … 18. The development application in the instant case is for consent only to a development to be carried out on the Club site. The development application relates solely to the Club site. The use of the Century Plaza land to give access to the Club site is an existing use and, unless that use be intensified, no question of consent to a development of the Century Plaza land will arise. It may be expected that the use will be intensified but it does not follow that the prospect of intensification makes the application already lodged by Ligon invalid for want of the consent of Century Plaza. The prospect of intensification of use is capable of

affecting the discretion to grant or refuse Ligon’s application, but that is a different problem.” Thus, the High Court in Ligon made it clear that the land to be included in a DA (and in respect of which owner’s consent is required) is only the land on which the specified development for which consent is sought is proposed to be carried out.

¶34-220 Development application lodged with wrong consent authority — Evans v Maclean Shire Council An issue arises as to the status of a DA lodged with the wrong consent authority. In Evans v Maclean Shire Council [2004] NSWLEC 512 (Evans v Maclean), Bignold J in the NSWLEC heard a challenge to a development consent granted by Council for an expansion of a caravan park in circumstances where the Minister was the correct consent authority for what was State significant development (SSD) (under the provisions applying after the 1997 Amendments but prior to the introduction of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW)). Bignold J held at paragraphs [27] and [116] as follows: “27 For all of the foregoing reasons, it would necessarily follow that if the Applicants establish that the development for which the development consent was granted by the Council is relevantly to be characterised as (i) development for the purposes of ‘tourist facilities’ within the meaning of cl 10(1) and Schedule 2 to SEPP71; and (ii) State significant development, the relevant consent authority to determine that development application was the Minister and not the Council. The legal consequence of this fact would be that the development consent purportedly granted by the Council would be a legal nullity by dint of the jurisdictional error that was committed by the Council (albeit in all innocence in view of the advice that it had received from Planning NSW that the second Respondent’s development application which had been referred to the Department was suitable for the Council to

determine). … 116 In view of my earlier conclusions that the development approved by the development consent was relevantly development for the purpose of a ‘tourist facility’ within the meaning of SEPP71 and that that development was relevantly ‘development that may be carried out with development consent’, it follows that the Applicants have established that the development approved by the development consent was relevantly State significant development as declared by cl 10(1) of SEPP71 for which the Minister (and not the Council) was the relevant consent authority. It follows that the development consent purportedly granted by the Council was a legal nullity because the Council was not the relevant consent authority and had no power to determine the second Respondent’s development application.” Thus, Bignold J held that a consent granted by a body which was not the correct consent authority was void. His Honour did not refer to the status of the DA itself, save for the fact that the body with whom it was lodged had no power to determine it.

¶34-230 Calardu Penrith Pty Ltd v Penrith City Council In Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 (Calardu), Biscoe J in the NSWLEC heard a challenge to the validity of a development consent granted by the Council for extensions to a bulky goods retail centre. One of the grounds of the challenge was that the correct consent authority for the DA was the joint regional planning panel (JRRP) and not the Council on the basis that the capital investment value of the DA exceeded $10m. Where a DA is to be determined by a JRPP, the DA is still lodged and assessed by the Council. The only difference is the DA is determined by the JRPP, not the Council. In Calardu, the issue was whether the capital investment value of the development (the subject of the DA) was a jurisdictional fact and hence, subject to redetermination by the courts on appeal. Biscoe J held that it was a jurisdictional fact. He held at paragraphs

[54] and [56] as follows: “54 Finally, in the absence of clear words, it seems an unlikely construction that where an administrative function is vested in one administrative body if a specified value does not exceed $X but is otherwise vested in another administrative body, that the former (or either) administrative body should be the final arbiter of which of them has jurisdiction. Assume, for example, that a regional panel and a council both purported to determine a development application on the basis of their differing opinions as to the capital investment value of the development. In the absence of clear words, it is difficult to see why the opinion of one rather than the other should have been intended to be the criterion of jurisdiction. The more likely intention is that it is for the Court to determine objectively. … 56 In my opinion, upon the proper construction of cl 13B(1), a capital investment value of a development that exceeds $10 million is a criterion the satisfaction of which enlivens the exercise of a regional panel’s function of determining the development application. Accordingly, it is a jurisdictional fact. If the criterion is satisfied, then the council’s determination of the 2008 consent was made without the necessary statutory authority.” Thus, based on Calardu, the determination of the factual criteria upon which, if met, a DA becomes regional development, subject to determination by a JRPP, or SSD, is a jurisdictional fact and hence subject to review by the courts.

¶34-240 Chambers v Maclean Shire Council Where a DA is lodged for development which is prohibited, the issue of the status of the DA was considered and discussed by the NSW Court of Appeal in Chambers v Maclean Shire Council [2003] NSWCA 100 (Chambers v Maclean). Ipp JA (with whom Sheller JA and Giles JA agreed) held that a DA lodged with the Council for prohibited development after the commencement of the 1997 Amendments (at

which time when a DA for prohibited development could not be approved by the Council) and hence, with the incorrect consent authority was “not an application in terms of the Act and the Council had no power to consent to it” (paragraphs [37]–[38]). These observations appear at odds with the later NSW Court of Appeal decision in Currey where the DA, when lodged, was for prohibited development, but it became permissible prior to its determination. There, the NSW Court of Appeal said it is not a question of whether a DA is valid or not, as the law may change prior to the determination of the DA. Bignold J in the NSWLEC sought to resolve this apparent discrepancy in JNH Group Pty Limited v Gosford City Council [2004] NSWLEC 205 where he held at paragraphs [35]–[38] as follows: “35. Accordingly, it is simply premature and unsubstantiated for the Council to claim that the proposed development is relevantly a ‘prohibited development’ and on that account, the Applicant’s development application is invalid or a nullity or not a development application in terms of the EP&A Act. 36. It further follows that the present case does not require any consideration whether (as the Applicant submits) the later Court of Appeal decision in Currey v Sutherland Shire Council (2003) 129 LGERA 223 has relevantly qualified or undermined the authority of Chambers in holding that a development application made to a council for prohibited development is an invalid application or not a development application in terms of the EP&A Act. 37. Without needing to delve deeply into the two Court of Appeal cases, it appears to me to be tolerably clear that they are reconcilable decisions if attention be focussed on the state or condition of the relevant development application at the time of its determination. In Chambers, the Court held that the question whether development was for a permissible or prohibited purpose involved a jurisdictional fact with the consequence that if the Court’s determination of that question was that the development was a prohibited development, there was no power for development consent to be granted by a council and if such a consent had been granted its validity could be impugned in

appropriate Court proceedings. In Currey, at the time that the development application was determined, there was no issue but that the proposed development was for a ‘permissible purpose’, because of a supervening change in the relevant planning law that occurred during the pendency of the development application, whereby the proposed development became a permissible purpose of development. 38. But the conclusions reached in Chambers that the development consent was invalid and the development application that generated that consent was invalid or not a development application in terms of the EP&A Act, both flowed retrospectively from the Court’s determination by way of a finding of jurisdictional fact that the proposed development was for a ‘prohibited development’, can have no application to the present case simply because there has been no final and binding judicial determination that the proposed development is for prohibited development.” Despite this attempted reconciliation, the preferable view may simply be that Currey provides a more considered and correct expression of the position of a DA in those circumstances.

¶34-250 Principles relating to formal requirements for a development application The key principles derived from the decision on formal requirements for a DA are as follows: Principle 1: The formal requirements for a DA are provided for in s 78A of the EPA Act, cl 49 and 50 of the EPA Regulation, and Sch 1 Pt 1 of the EPA Regulation. These identify: • who can make a DA (cl 49 of EPA Regulation) • the information to be contained in a DA and the documents to accompany a DA (cl 50 and Sch 1 Pt 1 of EPA Regulation) • the fee for lodgment (cl 50(1)(c) of EPA Regulation)

• how a DA is to be delivered to the consent authority (cl 50(1)(d) of EPA Regulation) • the need for a DA for designated development and SSD to be accompanied by an EIS (s 78A(8)(a) and s 78A(8A) respectively of EPA Act), and • the need for a DA which relates to land comprising critical habitat or likely to significantly affect threatened species, populations or ecological communities or their habitats to be accompanied by an SIS (s 78A(8)(b) of EPA Act). Principle 2: A consent authority may reject a DA within 14 days after receiving it if: • it is illegible • it is unclear as to the development consent sought • it does not contain the information or is not accompanied by any document specified in Pt 1 of Sch 1 of the EPA Regulation • the concurrence fees, if required, are not provided • the integrated approvals, fees and information, if the DA is for integrated development, are not provided, and • if an SIS or an EIS is required, but not provided. An application so rejected is taken never to have been made and hence, any dispute as to the correctness of a rejection can only be challenged by a request for review under s 82B or by civil enforcement proceedings, rather than a merit appeal (cl 51 of EPA Regulation). Other than the grounds specified in cl 51 and within the time so specified, a consent authority cannot reject a DA. A consent authority may request an applicant to provide additional information regarding a DA, but the applicant is not obliged to supply the information sought (cl 54 of EPA Regulation).

Principle 3: An applicant may amend or vary a DA at any time before it is determined by the consent authority. However, the applicant requires the agreement of the consent authority to amend a DA (cl 55 of EPA Regulation). An amendment of a DA may not be such as to convert the original DA into a fresh application (Manchil (referred to in the judgment excerpt at ¶34-090), Ebsworth, Radray). A broad approach should be taken in identifying the scope of the power to amend a DA (Ebsworth, Radray). The power to amend a DA is not limited to circumstances where the amended DA is “substantially the same” as the original DA (Ebsworth, Radray). The test is likely to be whether the amendment does not alter the characterisation (purpose) of the development or its essential elements (Ebsworth). Principle 4: An applicant may withdraw a DA by written notice at any time before its determination. No agreement is required from the consent authority to withdraw a DA (cl 52 of EPA Regulation). Principle 5: Where a DA is for designated development or SSD (and hence, requires an EIS) or development that requires an SIS is lodged: • a DA lodged without substantial compliance with the statutory requirements for an EIS or SIS is incomplete and ineffective until there is substantial compliance (Remath) • a DA which is incomplete at the time of lodgment is not invalid or void. Substantial compliance may be satisfied at some later time, but until substantial compliance has been achieved, the DA has not been made (Remath) • substantial compliance is a condition precedent to the granting of consent to such a DA in relation to the contents of such an application, its advertisement and public notice (Scurr, Remath), and • the consent authority is bound to refuse to grant development consent where there is non-compliance with an essential provision (such as obtaining an EIS or SIS and publicly exhibiting it). Any consent so granted is invalid (Scurr, Pioneer Concrete,

Helman, McGovern). Principle 6: Where a DA is lodged and does not contain the information required, or is not accompanied by the documents required, such a DA is incomplete and not compliant with formal requirements. But such a DA is not invalid. The absence of any required information does not render an application invalid; rather it means that an essential precondition to the exercise of the power to grant consent has not been satisfied. If the deficiency is capable of being amended and is amended before the relevant time in the process (be it prior to determination of a DA or prior to exhibition), any resulting consent is valid (Currey, Barrick). Principle 7: Where information to be submitted with a DA is specified in the EPA Act, such as the requirement for an EIS or SIS, there is a legislative intention that non-compliance will affect the validity of any resulting consent (Cranky Rock Road). Principle 8: Where information or documents to accompany a DA that are specified in Pt 1 of Sch 1 of the EPA Regulation are required, a consent authority may lawfully grant development consent despite any non-compliance with those requirements, provided the absence of that information or those documents is not in the particular case of such significance as to prevent the consent authority from properly determining the DA. Where a DA is lodged which does not contain information or documents specified in Pt 1 of Sch 1 of the EPA Regulation, a consent authority may reject the DA if it considers the absence of such information or documents was relevant to its proper determination of the DA. Otherwise, the consent authority can proceed to lawfully determine the DA in the absence of such information or documents. These principles apply to the failure to provide a SEE with a DA, as an SEE is a document of significantly less status and importance than an EIS or SIS (Cranky Rock Road). The correctness of these principles has been questioned, with the alternative view that the matters specified by the EPA Regulation to be submitted with a DA are mandatory requirements, but that invalidity of any consent would only result if substantial compliance rather than strict compliance was not achieved (McGovern).

Principle 9: A DA is not required to include all the components of a development, but any consent granted would not extend to those components for which consent was not sought in the DA (King v Great Lakes, Ligon). Principle 10: The land to be included in a DA (and in respect of which owner’s consent is required) is only the land on which the specified development for which consent is sought in the DA is proposed to be carried out. The land does not include other land on which incidental and associated uses may occur, but in relation to which consent has not been sought (Ligon). Principle 11: A DA which is lodged with the wrong consent authority is of no legal effect, although it may have legal effect if the law changes as to who is the consent authority prior to determination (Chambers v Maclean, Currey). But if consent is granted to a DA by a body which is not the correct consent authority, the consent is invalid as the body has no power to determine the DA in question (Evans v Maclean). Principle 12: Where the identification of the consent authority requires a determination of factual criteria (such as whether a DA is to be determined by a JRPP or is SSD), such factual criteria constitute a jurisdictional fact and are subject to judicial review by the courts (Calardu). Principle 13: Where a DA is lodged for development which is prohibited, it is not a question whether the DA is invalid. The DA is of no legal effect, although it may have legal effect if the law changes so as to make the development permissible with consent. But if consent is granted to a DA which is prohibited without power to do so, the consent is invalid (Currey, Chambers v Maclean) (subject to the contra view that the DA was invalid and not a DA under the EPA Act in Chambers v Maclean).

OWNER’S CONSENT FOR A DEVELOPMENT APPLICATION

¶35-010 Owner consent and who constitutes an owner? In the original Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the requirement for owner’s consent for a development application (DA) was contained in s 77(1) of the Act. Following the commencement of the Environmental Planning and Assessment Amendment Act 1997 (NSW) (1997 Amendments), s 78A(9) empowers the regulations to specify other things that are required to be submitted with a DA. Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) provides that a DA may be made by the owner of the land to which the DA relates or by any other person with the consent in writing of the owner of the land. A public authority may lodge a DA without the consent of the owner, provided the public authority serves a copy of the DA on the owner before lodging it (cl 49(2)), and where a DA is made by a lessee of Crown land, consent is required from the Crown (cl 49(3)). A DA for “public notification development” (which is State Significant Development (SSD) for mining, petroleum, and other DAs for SSD as determined by the Director General where there are multiple land owners) does not require owner’s consent (clause 49(2) and (5)) provided notice is given to the land owner. Further, cl 50(1) provides that a DA must contain the information specified in Pt 1 of Sch 1. If the applicant is not the owner of the land, one of the items required is a statement “… signed by the owner of the land to the effect that the owner consents to the making of the application” (Pt 1 of Sch 1, cl 1(1) (i) of the EPA Regulation). Thus, the requirement for owner’s consent is sourced in both cl 49 and cl 50 (and Pt 1 of Sch 1) of the EPA Regulation. “Owner” is defined in s 4(1) of the EPA Act as having the same meaning as in the Local Government Act 1993 (LG Act 1993), and that definition has been outlined in the discussion on formal requirements for a DA. The issue of who constitutes an “owner” for the purposes of the EPA Act and the role and meaning of the requirement for owner’s consent

to a DA has been subject to extensive consideration by the courts.

¶35-020 Jeblon Pty Ltd v North Sydney Council In Jeblon Pty Ltd v North Sydney Council (1982) 48 LGRA 113 (Jeblon), Cripps J in the Land and Environment Court of NSW (NSWLEC) considered a merit appeal by the applicant against Council’s deemed refusal of a DA to convert a hairdresser’s shop within a strata title building of six residential units and two shops. One of the issues argued by objectors was whether the DA had owner’s consent. At that time, s 77 of the EPA Act required that a DA may only be made by the owner or with the consent of the owner of the land. Cripps J held that compliance with the requirement was mandatory. The objectors submitted that, as the DA related in part to the common property vested in the body corporate, it required the consent of the body corporate. However, Cripps J found that the DA was not an application in respect of any part of the common property. Cripps J held that, in the event that any part of the building work could be said to relate to the common property, it is severable. The applicant argued that, where there is more than one owner of land, a DA may be lodged by any one of the owners without the consent of the other owners. Cripps J held at p 120 as follows: “The effect of his submission is that where there are more than two owners of land, a development application can be made either by one owner without the consent of the other or by any other person with the consent only of one of the owners. It is unnecessary for me to decide this matter, but the matter having been argued, I propose to deal with this submission. The word ‘owner’ where appearing in s.77(1)(a) and (b) refers to all persons who would qualify as owner as that word is defined in s.4 of the Local Government Act, 1919: see s.4 of the Environmental Planning and Assessment Act, 1979. In my opinion any person who is an ‘owner’ within the meaning of the Local Government Act, must either join in the making of the application pursuant to s.77(1)(a) or if an application is made by another person, the consent in writing of any such ‘owner’ must be obtained: see

s.77(1)(b).” Thus, Cripps CJ held that where there is more than one “owner” of land (under the definition), all such owners must be either the applicant or give consent to the lodging of a DA. (The same conclusion was found by Hemmings J in Amacon Pty Ltd v Council of the Municipality of Concord, unreported decision of Hemmings J in the NSWLEC No 10541 of 1987 and No 20532 of 1987, 2 December 1987 (Amacon).)

¶35-030 Crowley v Hastings Municipal Council In Crowley v Hastings Municipal Council (1982) 4 APAD 115 (Crowley), Bignold SA in the NSWLEC considered an applicant appeal against the determination of the Council to use a part of a creek at Port Macquarie for the purposes of operating a business of hiring and using aqua bikes. As the creek was Crown Land, the owner was the Land Board Office. No consent had been obtained from the Land Board Office when the hearing opened. The hearing was adjourned and correspondence was produced from the Land Board Office indicating it had no objections to the applicant’s operation. Bignold SA held that, on the assumption that owner’s consent was mandatory, “… it was capable of being fulfilled ex post facto at the hearing of the appeal” (p 120). The Council disputed that the correspondence from the Land Board Office represented owner’s consent. Assessor Bignold held at p 121–122 as follows: “The respondent disputed that these letters represented the ‘consent’ required by s.77(1), pointing out that in terms they revealed merely an absence of objection from the Land Board Office to the applicant continuing his operation for the term of the current licence issued by the Maritime Services Board. The court has concluded that the letters constitute sufficient evidence of the ‘owner’s consent’ within the meaning of s.77(1), despite their obvious failure, in terms, to grant an unqualified consent to the making of the development application. In the present circumstances where the activity, the subject of the development application, has already been commenced and is continuing, an

expression of the owner’s absence of objection to the continuance of that activity is tantamount to the owner’s consent to the making of a development application for the carrying out of that activity. The apparent purpose or policy underlying the requirement of s.77(1) is as well satisfied by the owner’s expression of no objection as by its expression of consent to the making of the development application. The respondent pressed the qualified nature of the ‘consent’ in that it was expressly limited to the term of the then current licence from the Maritime Services Board, arguing that such a qualified consent was not capable of supporting the grant of a development consent in any manner inconsistent with the qualification. In the present case acceptance of this argument would mean that any development consent could not operate beyond the expiry date of the current licence. Section 77(1) does not in terms refer to a qualified consent; it merely refers to and contemplates a consent. In the court’s opinion a qualified consent should nonetheless be treated as a consent for the purposes of s.77(1). It has not been demonstrated that the apparent policy or purpose of the requirement of s.77(1) would be frustrated or undermined by adopting such an approach, even though it has the effect of ignoring the qualification imposed by the owner in granting [p 122] consent. On the other hand it is not difficult to appreciate the considerable potential for mischief if the qualifications imposed by an owner in granting consent were recognised and enforced by the consent authority and the court. It would be highly undesirable to allow concepts and notions from the law of contract to impinge upon the essentially straightforward elements relating to development applications and development consents contained in Pt IV of the Environmental Planning and Assessment Act, 1979 (cf. the observations of Hutley JA in Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196). The problem would not be overcome by construing ‘consent’ in s.77(1) as limited to ‘unqualified consent’ because even if so

construed, what would be the effect of a purported revocation of withdrawal of that consent or more relevantly what should be the proper response by a consent authority or the court to an attempted revocation or withdrawal of that consent prior to the final determination of the development application? The section should not be construed in a manner which unnecessarily complicates or stultifies the administrative process of making and determining development applications. Accordingly, in the circumstances of this case the court concludes that the requirement of s.77(1) has been satisfied.” Propositions Subject to noting that, at the time, Bignold SA was not a judge (as he later became), the following propositions may be derived from Crowley: • Owner’s consent may be obtained at any stage prior to the final determination of a DA. • An expression of the owner’s absence of objection to an activity may constitute owner’s consent to a DA for that activity. • There is no provision for a qualified owner’s consent, and in such circumstances a qualified consent should be treated as owner’s consent on the basis that it is undesirable to import private contracts into the DA process. • Likewise, any purported revocation or withdrawal of owner’s consent to a DA, once given, is not recognised.

¶35-040 Woolworths Limited and Kenlida Pty Ltd v Bathurst City Council and Austcorp No 71 Pty Ltd In Woolworths Limited and Kenlida Pty Ltd v Bathurst City Council and Austcorp No 71 Pty Ltd (1987) 63 LGRA 55 (Woolworths v Bathurst C.C.), when discussing owner consent and the timing around when it was given, Cripps CJ in the NSWLEC held (at p 62) as follows:

“I accept … that it is unnecessary for the consent in writing [of the owner to a DA] to be received by the council at the time the development application is lodged provided it was, in fact, given prior to the grant of development consent.”

¶35-050 Amacon Pty Ltd v Council of the Municipality of Concord Owner consent and the forms it may take were discussed again in Amacon. Hemmings J held: “In my opinion the absence of the owner’s consent in writing on the prescribed form is not conclusive and can be established for the purpose of s.77 in many other ways.”

¶35-060 Sydney City Council v Claude Neon Ltd In Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; 67 LGRA 181 (Claude Neon), the NSW Court of Appeal heard an appeal as to whether owner’s consent had been given to a DA for an illuminated advertising sign on the top of a building in Taylor Square which projected into the air space above Oxford Street. The Council was the owner of the air space. At first instance, the NSWLEC held that, on the assumption that the sign projected into the airspace of the street, the Court could exercise the Council’s power as owner by virtue of s 39 of the Land and Environment Court Act 1979 (NSW) (LEC Act) which provides that, on the hearing of a merit appeal, the NSWLEC has, for the purposes of hearing and disposing of the appeal, all of the functions and directions of the consent authority in relation to the matter (the subject of the appeal). Hope JA (with whom Priestley JA and Meagher JA agreed) held at p 731–732 as follows: “In my opinion the principle (that is, that an approval for one purpose may impliedly be an approval for another purpose) is to be applied where a council is asked to give consent to a structure which in part projects over a public road. If the council gives development approval to that structure, it is doing two things. It is consenting as owner of the road to the making of the application,

and it is also approving the application. The first consent is necessarily implicit in the second consent, and in my opinion it does not matter that the council, when giving the second consent, is not conscious that it is implicitly giving the first consent also. There is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other. If the council were in a position of an ordinary private owner of land in relation to the road, the actions would be completely different. However that is not the position, and if a council considers that it should give consent to a development application it must also consider that it should give consent to the making of the application. I have thus far been dealing with the position where the council gives development approval to the proposed structure. If it does not give that approval, either by refusing the application or by failing to deal with it, it cannot be said that it has given its consent to the making of the application. The question then arises whether the Land and Environment Court on appeal to it can give approval not only to the development application but to the lodgement of the development application. This depends upon the construction and application of s 39(2) of the Land and Environment Court Act which provides: ‘In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.’ If the power of the council to consent to the lodging of the application is a function or discretion which it has in respect of the matter the subject of the appeal, then the council would have the power not only to grant development approval but to exercise the power of the council to consent to the lodging of the application. …

[p 732] … The giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council. Section 39(5) provides that a decision of a council upon an appeal shall, for the purposes of the Land and Environment Court Act or any other Act or instrument, be deemed, where appropriate, to be the final decision of the body whose decision is the subject of the appeal and shall be given effect to accordingly. The decision of the Court is thus, where appropriate, deemed to be the decision of the Council, and in my opinion the subject case is an appropriate case. The Court thus having the same powers as the council had when dealing with the application before it, it is empowered to give a consent which will operate as a consent by the council in its capacity as owner of the road to the lodging of the application for development approval.” Conclusions Thus, the following conclusions may be derived from Claude Neon: • If the consent authority is the owner of land to which a DA relates and the consent authority grants development consent, it is also granting consent as owner. • If the consent authority is the owner of land to which a DA relates and it refuses to give owner’s consent and does not approve the DA, on appeal, the NSWLEC has the power to exercise the function of the consent authority as landowner by virtue of s 39(2) of the LEC Act. Following the NSW Court of Appeal’s decision in Claude Neon, the

Council sought Special Leave to appeal to the High Court. Special Leave to appeal was granted on 13 October 1989 by Mason CJ, Gaudron J and McHugh J, but the appeal was subsequently discontinued (see (1989) 169 CLR 698). This suggests that the High Court considered on a preliminary view that there was a real and important issue meriting consideration by the High Court. The discontinuance of the appeal may have been related to the split of Sydney City Council to form a new South Sydney City Council in whose area the matter was then located.

¶35-070 Shellharbour Municipal Council v Rovilo Pty Ltd In Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231 (Rovilo), the NSW Court of Appeal heard an appeal in relation to an application for a declaration regarding the refusal of the Council to consider a DA for the erection of a bridge over Council-owned land. Clarke JA (with whom Meagher JA and Samuels JA agreed) held at p 237–239 as follows: “The following propositions can be deduced from Claude Neon: (1) Although the title to land upon which public roads are situated is vested under the Local Government Act, s 232, in the local council that does not mean that a council may treat the land as though it were private land. The council owns the land for the purposes of its use as a public road. As Hope JA said: ‘They cannot do with the road everything that a private owner could do with his own land. They can only do those things which are authorised by or under the relevant statutes. A relevant function which is authorised is the controlling and regulating of structures of any kind extending from any land over the alignment of a road.’ (2) If the owner of land applies to a council for its consent as owner of the road to the erection of a structure projecting over the road the council does not have the right arbitrarily to withhold its consent as the ordinary owner of private land

might do. (3) If a proposed development is one which ought to be approved then the council ought to give its consent to the lodgment of the application. Any failure to give that consent simply because the council wished to frustrate [p 238] the right of the adjoining owner to obtain approval would be a use of its power for an improper purpose. (4) Where a council gives its consent to a development application in respect of a structure projecting over a public road it is to be taken as having impliedly consented to the making of the development application. ‘… This conclusion is based upon the applicability of the principle that a council can impliedly exercise two powers when all it purports to do is to exercise one power’ (per Hope JA). (5) On the other hand where it declines its consent to the lodging of a development application the Court’s power to review that action in an appeal under s 39(2) of the Court Act depends upon whether the giving of consent is a necessary incident to the power of the council to grant development approval. (6) The giving of consent under s 77(1)(b) of the EPA Act to the making of an application for development approval in respect of the erection of a structure projecting over a road is a function of the council which is basic to its function to grant development approval in such a case. (7) Accordingly, s 39(2) of the Court Act invests the Court with jurisdiction to exercise the power of the council to consent to the lodging of the application. It follows from these propositions that if in the present case the respondent had awaited the period specified in s 96 of the EPA

Act and then lodged an appeal upon the basis of the deemed refusal of the development application by the appellant the Land and Environment Court would have been empowered to exercise the respondent’s power to consent under s 77(1)(b). The respondent did not follow that course but sought a declaration, thereby invoking the power of the Land and Environment Court under s 20(2) of the Court Act. That section relevantly empowered the Court to exercise the jurisdiction that the Supreme Court would have had but for s 71 of the Court Act to review or command the exercise of a function ‘conferred or imposed by a planning or environmental law’. Counsel for the appellant submitted that the power to grant consent to the lodging of a development application was not a function conferred or imposed by a planning and environmental law. The right to grant or decline consent was, he argued, an incident of the appellant’s ownership of the land on which the road was situated and was to be treated no differently than the right of a private owner to withhold consent. If the appellant was a private person then that submission would undoubtedly be correct. It is hard to conceive a situation in which a court could require an adjoining landowner to give consent under s 77(1)(b). But that is not this case. As Hope JA pointed out in Claude Neon the council does not have the power of a private land holder arbitrarily to withhold consent. Nor would it be a proper exercise of its power to decline consent simply ‘because it wished to frustrate the right of the adjoining owner to obtain approval for the erection of the structure’. The council is placed in a special situation where an application is made to [p 239] it for development approval for the erection of a structure partly on its road. The fact that it has not given its consent to the making of the application does not, as Claude Neon established, debar its

consideration of the merits of the application. Furthermore, if it simply does nothing the applicant may appeal to the court which has all the powers of the council including the power to consent to the lodgment of the application. If this be correct then the power to grant the consent to the making of the application should be seen as an incident of the power to grant or refuse the application and the exercise of that power should be understood as falling within s 20(2)(b) of the Court Act. If this view were wrong the consequence would be that the power of review of a possibly mala fide exercise of the relevant function or power would lie with the Supreme Court. Given that the Land and Environment Court has power to exercise the council’s function to give the relevant consent under s 39(2) of the Court Act where the applicant appeals upon the basis of a refusal or deemed refusal this consequence would present as an anomaly. This operates as an additional consideration in favour of construction of s 20(2) of the Court Act and s 77(1)(b) of the EPA Act which I favour. Accordingly, I agree with Stein J’s conclusion that the Land and Environment Court did have jurisdiction to hear and determine the respondent’s summons.” Thus, in Rovilo, the NSW Court of Appeal affirmed the decision in Claude Neon and went further to hold that not only does the NSWLEC have the power under s 39(2) of the LEC Act in determining a merit appeal to grant owner’s consent if the consent authority is the owner, but the refusal of the consent authority to receive and consider such a DA can be remedied by civil enforcement proceedings.

¶35-080 Stafford Quarries Pty Ltd v Kempsey Shire Council In Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 (Stafford Quarries), Bignold J in the NSWLEC heard a preliminary matter to a merit appeal for a quarry on land comprising two separate lots, where the owner of one lot had withdrawn landowner’s consent to

the DA, having previously granted it. Bignold J held at p 55–58 as follows: “Counsel for the respondent frankly concedes that there is a long line of existing authority in this Court to the effect that following the making of a development application the withdrawal of consent given thereto by an owner under s.77(1)(b) of the Environmental Planning and Assessment Act does not render incompetent an appeal to this Court and does not deprive this court of jurisdiction to determine that appeal: see Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council (Land and Environment Court of New South Wales, 8 July 1981, unreported); Royal Motor Yacht Club v Sutherland Shire Council (Land and Environment Court of New South Wales, 26 June 1987, unreported); Reeson v Warringah Shire Council (Land and Environment Court of New South Wales, 16 October 1990, unreported) and Wharf II Pty Ltd v Sydney City Council (Land and Environment Court of New South Wales, 15 February 1991, unreported). [p 56] Counsel for the respondent did not directly challenge this line of authority. Instead he sought to distinguish it on the ground that each of the decided cases involved only one parcel of land and only one owner whereas the present case involves two parcels of land and two owners. This obvious factual difference does not, in my judgment, legally distinguish the decided cases or justify a questioning of their authority or their application to the present facts. … Accordingly, I am of the opinion that this is a case which is entirely governed by existing authority which, if applied, would lead to the result that the Court has jurisdiction to determine the pending s.97 appeal. … Accordingly, for all of the foregoing reasons, I must reject all of

the Council’s arguments in support of its notice of motion and hold that the Court has jurisdiction to determine the pending s.97 appeal. … [p 58] … At first sight it may appear somewhat strange that the applicant may proceed with its original development application which involves an area of land owned by a person who formerly consented to the development, but now opposes it. However on closer analysis, even if these circumstances continue, the result does not necessarily follow. First it needs to be appreciated that the development control process is not generally concerned with relations between owners and other people who may wish to implement development consent and the fact that development consent is granted does not guarantee that the development will be implemented: see Wharf II Pty Ltd. Secondly it may be established at the hearing (as appears to be the case in the brief consideration of the question on the present hearing) that the proposed development does not involve in any sense (active or passive) lot 2. However these are matters that must be left for the trial if the parties so proceed, in which it may be anticipated that the owner of lot 2 will be entitled to participate, if his opposition to the proposed development continues. What is more relevant for present purposes is the proposition that, as a matter of power, development consent may be granted to the development as described in the development application and environmental impact statement.” Thus, Bignold J in Stafford Quarries: • affirmed previous authority that the withdrawal of landowner’s consent subsequent to the making of a DA does not prevent the consideration and determination of the DA, and • the fact that development consent is granted does not guarantee that the development will be carried out.

¶35-090 Pimas Group Pty Ltd v Maritime Services Board of NSW In Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205 (Pimas), Stein J in the NSWLEC considered a question of law relating to a merit appeal in relation to a DA for a foreshore wall where the Maritime Services Board was both the consent authority and landowner. The issue arose as to whether the Court’s powers under s 39(2) of the LEC Act applied. It was argued that the decision in Claude Neon should be confined to its own facts. Stein J held at p 208 as follows: “The most recent examination in the Court of Appeal of the ambit of s 39(2) was in McDougall v Warringah Shire Council (1993) 30 NSWLR 258; 80 LGERA 151. In particular Cripps JA said (at 278; 170): ‘In my opinion, the power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised.’ It seems to me plain that there is that nexus between the application and the relevant functions and discretions vested in the Maritime Services Board. Therefore, the power exists in the Court to exercise the function and discretion of the Board for the purposes of disposing of the appeal before the Court. It is a planning power (for the purposes of the Environmental Planning and Assessment Act) and not a property power. The granting of the owner’s consent to the making of the development applications [sic.] confers no right in property and has no effect on the lease: see Paino v Woollahra Municipal Council (L1990) 71 LGRA 62. In my opinion the nexus is clear. Nor do I think that Sydney City Council v Claude Neon Ltd should be cut down and confined to its own facts. It has now been confirmed on a number of occasions, including the Court of Appeal: see, eg, Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 16 NSWLR 104; 68 LGRA 231.” Conclusions

The following conclusions can be derived from Pimas: • The application of the principles in Claude Neon is not confined to circumstances where a DA relates to a road owned by the Council, but applies in all circumstances where the consent authority under the EPA Act is also the landowner. • The power exercised by the Court to give owner’s consent is a planning power and not a property power. Thus, the granting of development consent confers no right in property.

¶35-100 Mulyan Pty Ltd v Cowra Shire Council The question of what constitutes landowner’s consent and the role of owner’s consent to a DA was considered by Lloyd J in the NSWLEC in Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212 (Mulyan). In this case, Mulyan Pty Ltd owned land at Cowra and had by agreement granted a licence to TJ Bryant Pty Ltd (Bryant) to conduct quarrying on the property subject to terms and conditions. A dispute arose between the parties and Mulyan had terminated the agreement because of alleged breaches by Bryant. This aspect was the subject of separate legal proceedings. Bryant lodged a DA with the Council for quarrying on the Mulyan land accompanied by a letter from Mulyan indicating that, in the event the courts resolved the dispute between the parties in Bryant’s favour, it gave owner’s consent to the DA subject to a range of conditions. Lloyd J found that the letter in question was not owner’s consent; he found it was a conditional consent not intended to become operative until various matters had been satisfied. Lloyd J held at paragraphs [22]–[28] and [31]–[32] as follows: “22. … In the present case, however, the letter of 1 April 1988 is not in truth a consent at all. It is at most a ‘consent’ which is intended to operate upon the happening of a future event (or events) and at a future date. And if the specified event or events does not or do not occur then the ‘consent’ does not operate at all.

23. … If a purported consent is not in law a consent at all, then in my opinion the mandatory requirement of s 77(1) is not satisfied. Neither the Council nor the Court could determine otherwise. A consent authority cannot convert something that is not in law a consent into something that it is not. … 24. Mr Davison relies next upon the dissenting judgment of Kirby ACJ in North Sydney Council v Ligon 302 Pty Ltd.1 In discussing s 77 of the EPA Act Kirby ACJ said (at 447): ‘It is a procedural requirement. It is there for a purpose. It is to ensure that owners of land affected by a development application are notified of the application and afforded the opportunity of protecting their ownership rights by the requirement to signify, in writing, their consent. In certain circumstances, if consent of the owner of related land were unlawfully or reasonably withheld, a facility would exist to apply for relief against such refusal.’ 25. It is to be noted, however, that Kirby ACJ also said (at 448): ‘If there is a doubt in the construction of s 77(1) I consider that the approach which I favour is one defensive of private property rights in land which the law would normally uphold. It would take clearer language in s 77(1) effectively to deprive the owners of related land of the rights which parliament has afforded them by the terms of s 77 (‘may be made only’).’ 26. I do not accept Mr Davison’s submission that the purpose of s 77(1) is merely to ensure that the owner of land is on notice of any development application over that land. Neither do I accept Mr Davison’s submission that s 77 is not intended to afford a veto to the owner of land to which a development application relates. I refer, in particular, to the passage in the judgment of Kirby ACJ which I have quoted (in paragraph 25 above). The provision is defensive of property rights. As noted by his Honour, the terms of the section are clear (‘may be made only by’). If it was intended merely to ensure that an owner is on notice of a development application relating to his or her land, the section could have readily so provided. But it does not. It expressly requires ‘the

consent’ of the owner. The corollary of this is that an owner can withhold consent. 27. It is true that in some circumstances an owner of land may be ordered to provide a written consent to a development application relating to his or her land. A typical example of such a circumstance is illustrated by the case of Kirkjian v Towers (Waddell CJ in Eq, 6 July 1987, unreported). … Waddell CJ in Eq held that the plaintiffs were entitled to relief in the nature of an order requiring the defendants to give their consent to so much of the plaintiff’s application as involved work on the defendant’s land. His Honour said, however, that what the Court is applying is the law relating to rights of way and the general law of property. 28. The present case is somewhat different. Mulyan is the owner of the land. It has terminated the licence agreement between it and Bryant. It regards Bryant as a trespasser. Under these circumstances a court of equity is not likely to compel Mulyan to provide the necessary owner’s consent to Bryant’s development application, at least not unless Bryant is ultimately successful in its proceedings against Mulyan which are at present pending in the Equity Division. … 31. It is significant that in both Kirkjian v Towers and 117 York Street Pty Ltd, the Court was applying the law relating to rights of way (in Kirkjian) and the law relating to easements (117 York Street Pty Ltd) and the general law of property. In 117 York Street Pty Ltd, Hodgson CJ in Eq expressed the opinion that the obligation on the owner to give consent can only be imposed as part of the easement and not by order of the Court which is independent of the easement; and the obligation in that case was made a specific term of the easement. This suggests to me that the requirement for the giving of an owner’s consent to the making of a development application is not a mere formality which serves only to establish that an owner is aware of such development applications. An owner of land over which there is no other propriety or other enforceable interest is entitled to

withhold consent. 32. In the present case Bryant has not established that it has any proprietary or other interest in the property. There is thus no basis, at present, upon which Bryant is able to found an application for a mandatory injunction requiring Mulyan to give its consent in writing to the development application. Contrary to Mr Davison’s submission, s 77(1)(b) does afford a veto to the owner of land to which the development application relates, subject to the general law of property as applied in cases such as Kirkjian v Towers and 117 York Street Pty Ltd.” Conclusions Thus, the following conclusions may be derived from Mulyan: • To establish if a consent has or has not been granted is a question of fact to be determined. If a purported consent is not a consent, then the requirement for owner’s consent is not satisfied. • The requirement for owner’s consent to a DA is not a mere formality, but is a provision designed to defend an owner’s property rights. Owner’s consent to a DA may be granted and equally an owner is entitled to withhold consent where there is no other proprietary or other enforceable interest applying. In relation to the existence of some other proprietary or other enforceable interest, see also Annwrack Pty Limited v Williams (unreported judgment of Waddell CJ in Eq in Supreme Court Equity Division No 3101 of 1998) (Annwrack) and Nirimba Developments Pty Limited v Sertari Pty Limited [2007] NSWSC 252 (Nirimba). Footnotes 1

North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435.

¶35-110 Botany Bay City Council v Remath Investments

No 6 Pty Ltd In Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364 (Remath), Stein JA (with whom Handley JA agreed) held at paragraphs [5]–[7] as follows (footnotes excluded): “5 During the 1980s and early 1990s there were a number of decisions in the Land and Environment Court which considered the requirement for an owners’ consent under s 77(1) including the time at which the consent of the owner must be forthcoming. 6 As to the latter aspect, the most direct authority is Amacon Pty Ltd v Concord Municipal Council wherein Hemmings J said at page 11: ‘However, as the lack of the owner’s consent can be cured at any time up until the determination of the application (see Woolworths Ltd & Ors v Bathurst City Council (Unreported, Land and Environment Court 24 September 1987), Crowley v Hastings Municipal Council (1982) 4 APAD 115), I decline to make any order which would prevent the further hearing of the appeal.’ 7 It has not been suggested that the cases in the Land and Environment Court relating to the timing of the provision of an owner’s consent to a development application have been incorrectly decided.” Thus, Remath provides approval from the NSW Court of Appeal regarding the principle that the lack of owner’s consent to a DA can be cured at any time up until the determination of the DA.

¶35-120 Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd In Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 (Owners SP 50411 v Cameron), the NSW Court of Appeal heard an appeal from Young CJ in Eq ordering the body corporate to grant owner’s consent to a strata lot

proprietor’s DA. The NSW Court of Appeal found that the development proposal did not extend to the common property. At issue in the proceedings was the correctness of a decision by Cowdroy J in the NSWLEC in Halfin v Sydney City Council (2000) 110 LGERA 464 that the body corporate is the owner under the EPA Act and must consent to a DA in relation to a lot in the Strata Plan. The issue arose because the EPA Act adopted the definition of “owner” in the Local Government Act 1919 (NSW) (LG Act 1919), and after the enactment of the LG Act 1993, the definition of “owner” was amended from that applying in the LG Act 1919 to the definition in the LG Act 1993. The definition of “owner” in the LG Act 1993 did not refer to strata plans, but included: “every person who jointly or severally, whether at law or in equity — (a) is entitled to the land for any estate of freehold in possession …” Heydon JA held that under this definition the owner of a strata lot intending to carry out development within the lot did not require the consent of the body corporate as was held in Jeblon (paragraph [120]). In the LG Act 1993, “owner” was defined differently when first enacted, and this changed definition was adopted in the EPA Act in 1995 and then changed in 1996 and again in 1997 to provide at the time of this case as follows: “(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996 …” It is noted that the current definition of “owner” in the LG Act 1993 differs from that above, but in substance is the same, and hence the principles in this case remain relevant. Heydon JA (with whom Santow JA agreed on this aspect: see paragraph [194]) held at paragraphs [149], [151], [158], [162]–[163]:

“149 In Halpin’s case Cowdroy J made no criticism of Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113. He criticised Blue Water District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27 on the ground that those cases failed to attach significance to the change in the definition of ‘owner’ after 1995. However, that change cannot have been intended to have the radical effect which the claimants’ submissions require. It would be an extreme step to hold that a lot owner can never develop the lot unless the body corporate consents to the lodging of the development application. It would be a radical derogation from the enjoyment of land in which the lot owner has a fee absolute in possession. The fact that the veto could be exercised by a bare majority of a meeting of the body corporate would not sit well with the need for special resolutions in relation to restrictive by-laws. Why should the legislation, which expressly stipulated one route to the control of individual lot owners by the majority but made it subject to the requirements of special resolution, be construed as stipulating for another route to that destination which can be travelled if only a bare majority can be found? While each of those outcomes is possible, it would be unlikely that legislation could bring them about without containing clear words to that effect. … 151 There is nothing in the statutory language — the new definition of ‘owner’ — to justify the conclusion that it effected changes of the magnitude, incongruity and disharmony which are entailed in the claimants’ argument. Even if there were, it would be difficult to construe the language as leading to that conclusion in view of the fact that the new definition of ‘owner’ was introduced into the Environmental Planning and Assessment Act as part of the Statute Law Revision (Local Government) Act 1995, which had the function of effectuating numerous formal amendments, particularly those necessitated by the substitution of the Local Government Act 1993 for the Local Government Act 1919. The structure of the Strata Schemes (Freehold

Development) Act 1973 before the change to the definition of ‘owner’ in 1995, which did not give the body corporate any relevant veto, has not altered materially after the enactment of the Strata Schemes Management Act 1996. … 158 To summarise, the construction of clause 49(1) which the claimants desire does not arise out of a natural reading of the language, even if the statutory definition of ‘owner’ is applied. It only arises if the language is read in a strained way. But if it is read in that way, the context and subject matter indicate that the statutory definition of ‘owner’ is inapplicable. If it is left out of account and the ordinary language meanings of ‘owner’ and ‘land to which the development application relates’ are applied, clause 49(1) operates sensibly in the overall context of the body of law dealing with development applications in relation to strata lots and common property, but without conferring any veto on the body corporate in relation to development within a single lot. … 162 Hence Halpin’s case is wrongly decided. Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389 at 396 and Crawley v Sydney City Council (1998) 98 LGERA 21 at 27 are rightly decided. 163 On the true construction of the Environmental Planning and Assessment Act 1979 s 78A and the Environmental Planning Assessment Regulation 2000 clause 49, the owner of a lot in a registered strata plan who applies to a consent authority for consent to carry out development wholly within the boundaries of that lot is not obliged to obtain and evidence the consent of the body corporate to the lodging of that application.” Thus, Owners SP 50411 v Cameron confirmed that the body corporate of Strata Title premises is not the owner for the purposes of the EPA Act of a lot within the Strata Plan, and only is an owner of the common property within the Strata Plan. However, the power conferred on the NSWLEC by s 39(2) of the LEC

Act can only be exercised if the granting of landowner’s consent to the making of a DA was a “function and discretion” of the consent authority “in respect of the matter the subject of the appeal”.

¶35-130 Sydney City Council v Ipoh Pty Ltd In Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 (Ipoh), the NSW Court of Appeal considered whether, on appeal, landowner’s consent could be given by the Court where the Council as consent authority was the owner of land on which the Queen Victoria Building was erected and leased to Ipoh. The Council disputed whether the principles in Claude Neon applied to land other than roads. Tobias JA (with whom Hodgson JA and Santow JA agreed) held that the power under s 39(2) is not confined to roads for the reasons set out in paragraph [34] as follows: “Is the exercise by the Court under s39(2) of the Court Act to give consent to the making of a development application in respect of which an appeal has been instituted to the Court pursuant to s97 of the EPA Act confined to land the subject of that application which is a public road? 34 In my opinion the answer to the question so posed is in the negative. Essentially, my reasons for holding this view are encapsulated in the following propositions: (a) A council has two quite independent powers, namely: • To determine a development application as the consent authority under the EPA Act; • to consent to the making of that application in its capacity as the owner of the land the subject of the application. (b) A council therefore has the power to grant the owner’s consent to the making of a development application as required by clause 49 of the Regulation. It has the power to do so before determining the application or it will be assumed to have done so if it grants development consent to the

application. (c) The giving by the council of consent to the making of a development application with respect to its land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, its determination of that application. That is to say, the giving of that consent is necessary to enable the council as the consent authority to exercise its function to grant development consent to the application if it be minded to do so. (d) If the development application is actually refused by the council or is deemed to have been refused, then the applicant has a right to appeal to the Court pursuant to s97 of the EPA Act. (e) The Court cannot uphold any such appeal and grant development consent to the application unless the owner’s consent to the making of the application has been given. (f) Where the land the subject of the application is owned by the council from whose decision the appeal is brought, its function in giving consent to the making of the application is an aspect of the power to grant or refuse development consent to the application. In other words, the giving of its consent as owner of the land only has one purpose which is to enable it to lawfully determine and dispose of the development application in accordance with the provisions of the EPA Act. (g) The Court cannot exercise its function of determining the appeal by the granting of development consent to the application, if it is otherwise minded to do so, without the owner of the land having given its consent to the making of the application. This is because it is basic to the function of granting consent to a development application that clause 49 of the Regulation be complied with.

(h) The Court has the same powers and functions as the council from whose decision the appeal is brought. The ‘matter the subject of the appeal’ for the purposes of s39(2) of the Court Act is whether consent to the development application should be granted or refused. (i) As the owner of the land the subject of the application, the council has the power to give consent to the making of the application so as to permit of its lawful determination; it must follow that the Court has the same power as the council for the purpose of enabling it to determine the appeal by the granting or refusing of development consent to that application. (j) Accordingly, as the Court can do what the council can do, it must follow that the Court may, for the purpose of determining the subject matter of the appeal (namely, whether to grant or refuse development consent to the application), exercise the power of the council to give the necessary consent required by cl 49 of the Regulation so as to enable it to lawfully determine and dispose of the application the subject of the appeal.” Tobias JA also noted the view of Kirby P in McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 that the purpose of s 39(2) in the LEC Act was to place the Court fully in the shoes of the Council at the time a DA is lodged. Kirby J said at paragraph [264] that: “all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval.” Tobias JA in Ipoh noted that the extent of the Court’s jurisdiction under s 39(2) could be considered narrowly and widely. Kirby J in McDougall favoured a wide approach and Tobias JA in Ipoh indicated that approach had much to commend it, without formally deciding the question (see paragraphs [58]–[60]). Tobias JA further cited the test

suggested by Cripps JA in McDougall at p 278 that: “the power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised.” Conclusions The following conclusions may be derived from Ipoh: • The power of the NSWLEC under s 39(2) of the LEC Act to grant landowner’s consent, where the landowner is also the consent authority, is not confined to public roads owned by council but extends to all lands owned by council. • The extent of the jurisdiction of the NSWLEC under s 39(2) of the LEC Act may be considered narrow or wide, but the grant of owner’s consent by the consent authority is basic to the function of granting consent to a DA and hence, is a function and discretion related to the matter (the subject of the appeal). Of course, if a DA is designed by an applicant so that the development for which consent is sought will be undertaken within his own land, then the need for consent of the owner of the adjoining land does not arise, even if consequential development may be required on adjoining land for which consent would be needed but is not essential to the development (the subject of the DA) (see North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 at paragraph [18]). It is noted that the cases discussed above do not raise any questions regarding whether the statutory changes relating to owner’s consent due to the 1997 Amendments and the EPA Regulation have altered the fact that it is an essential prerequisite to the granting of a development consent. As the requirement is founded in part on the provisions of Pt 1 of Sch 1 of the EPA Regulation, the discussion previously regarding the formal requirements for a DA is relevant. It will be noted that the approach taken by the courts in relation to the requirement for owner’s consent may not sit comfortably with the decision in Cranky Rock Road Action Group Inc v Cowra Shire

Council [2006] NSWCA 339 (Cranky Rock Road).

¶35-140 Principles regarding owner’s consent to a development application The key principles derived from the discussion on the requirement for owner’s consent to a DA are as follows: Principle 1: Where the applicant for a DA is not the owner of the land (the subject of that DA), the DA requires a statement signed by the owner of the land to the effect that the owner consents to the making of the DA (Pt 1 of Sch 1 of the EPA Regulation, cl 1(1)(i)). “Owner” under the EPA Act has the same meaning as in the LG Act 1993 (s 4(1) of the EPA Act). A DA lodged by a public authority and a DA for “public notification development” (which is SSD for mining, petroleum, and other DAs for SSD as determined by the Director General where there are multiple land owners) does not require owner’s consent (clause 49(2) and (5)) provided notice is given to the land owner. Principle 2: The requirement for a DA to have owner’s consent is an essential prerequisite to the granting of a development consent, without which any resulting development consent is invalid (Jeblon, Mulyan, Ipoh, but note potential anomaly with Cranky Rock Road). Principle 3: Where a DA has been lodged without owner’s consent it may be provided at any time up until the determination of the DA (Remath, Amacon, Crowley, Woolworths v Bathurst C.C.). Principle 4: Where there are more than one person who are owners (within the definition in s 4(1) of the EPA Act) of land (the subject of a DA), all such owners must give owner’s consent to the DA (Jeblon, Amacon). Principle 5: The question of whether owner’s consent has or has not been given is a question of construction of the material submitted with the DA. There is no provision for a qualified or conditional owner’s consent; it is either owner’s consent or not (Mulyan, Crowley). Principle 6: The withdrawal or revocation of owner’s consent, subsequent to the lodging of a DA, does not prevent the consideration

and determination of the DA (Stafford Quarries, Crowley). Principle 7: The requirement for owner’s consent to a DA is not a mere formality, but is a provision designed to defend an owner’s property rights. Owner’s consent to a DA may be granted or withheld (Mulyan), subject to two exceptions: (1) where there is another proprietary or other enforceable interest applying, such as with an easement or consent (Mulyan, Annwrack, Nirimba), and (2) where the owner is also the consent authority for the DA (Claude Neon, Ipoh). Principle 8: Where the owner is also the consent authority for the DA, then: • if the consent authority grants development consent, it is also granting owner’s consent (Claude Neon), and • if the consent authority refuses to grant owner’s consent, on appeal, s 39(2) of the LEC Act gives the Court the jurisdiction to exercise the function of the consent authority as landowner (Claude Neon, Rovilo, Ipoh). This power is not confined to land comprising public roads, but extends to any land where the consent authority is owner (Ipoh). Principle 9: Where the owner is also the consent authority for the DA and the consent authority refuses to grant owner’s consent, the absence of owner’s consent may be remedied by civil enforcement proceedings by way of declaration (Rovilo) as well as by a merit appeal to the NSWLEC (Claude Neon). Principle 10: Where a DA relates to land solely within a strata title lot and does not relate to the common property, owner’s consent is not required from the body corporate (Owners SP 50411 v Cameron). Principle 11: Where development consent is granted, the development consent does not constitute a property right to permit trespass, even though owner’s consent to the making of the DA was

granted (Pimas, Stafford Quarries).

TYPES OF DEVELOPMENT APPLICATIONS ¶36-010 Overview of types of development applications Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides for requirements and processes for a standard or normal development application (DA). In addition, it provides for a number of additional requirements and processes for different types of DAs. These additional requirements and processes are not necessarily mutually exclusive and hence, in certain circumstances, may impose cumulative requirements and processes for the same DA. The different types of DAs are as follows: • standard DAs (namely a DA with none of the additional requirements or processes) • designated development • advertised and specified development • integrated development • DAs requiring a Species Impact Statement • DAs requiring concurrence or consultation • Crown development • regional development • staged DAs, and • State significant development (SSD).

¶36-020 Requirements

The different types of DAs require one or more of the following: • different information to be submitted • different processes for public notification and involvement • different processes for interaction between the consent authority and other public authorities • different limitations on the power of the consent authority to determine a DA • different consent authorities to determine a DA • different effects of a development consent granted • different rights for review and appeal, and • different rights for third parties (not being either the applicant or the consent authority). Each of the different types of DAs will now be considered in turn in the following chapters to identify the different requirements and processes referred to above. SSD is considered in Chapter ¶67.

STANDARD DEVELOPMENT APPLICATIONS ¶37-010 Applicant An applicant is required to be a legal person (s 78A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)). An applicant must either be the owner of the land to which the development application (DA) relates or (if another person) have the consent in writing of the owner (cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation)). If the DA is by the lessee of Crown land, the lessee needs the consent in writing of the Crown (cl 49(3) of EPA Regulation).

¶37-020 Subject matter of development applications A DA must relate to “development” (see the earlier discussion on what is a DA and when is it required). A simple DA may be lodged for more than one of the elements of the definition of “development” (s 78A(2) of EPA Act). A DA may only be lodged for development which is permissible with consent under the applicable Environmental Planning Instrument (EPI) (s 77(a) of EPA Act). A DA is not required for development which is permissible without consent (s 76(1) of EPA Act) or for exempt development (as provided in an EPI) (s 76(2) of EPA Act) or for complying development (as provided in an EPI) (s 76A(5) and 77(b) of EPA Act). Where development is prohibited by an EPI it cannot be carried out with or without development consent (s 76B of EPA Act), but a DA may be lodged for prohibited development and considered by a consent authority (s 72I–72K of EPA Act) together with a proposed EPI to make the development permissible with consent. It is, however, a matter for the sole discretion of the relevant planning authority under Pt 3 Div 4 of the EPA Act. Subject to the above, the choice of the subject matter of a DA is a matter solely for the applicant (see previous discussion in Chapter ¶31 on what is a DA).

¶37-030 Where is a development application lodged? A DA is made to the consent authority (s 78A(1) of EPA Act). The definition of “consent authority” is located in s 4(1) of the EPA Act. It is necessary to establish who is the consent authority in relation to a particular development to identify where a DA should be lodged. A DA can be either delivered by hand to the consent authority, sent by post or sent electronically, but cannot be sent by facsimile transmission (cl 50(1)(d) of EPA Regulation).

¶37-040 Information required Section 78A(9) of the EPA Act provides that regulations may specify other things that are required to be submitted with a DA. Clauses 47–

50 and Pt 1 of Sch 1 of the EPA Regulation relate to information required in all DAs. These provisions have been outlined and discussed in the discussion on formal requirements for a DA earlier in Chapter ¶34. In brief, the information required is as follows: • any form approved by the consent authority (cl 50(1)(b) of EPA Regulation) (The consent authority must provide blank copies of any standard form required to be completed (cl 48(C) of EPA Regulation).) • information and documents specified in Pt 1 of Sch 1 (cl 50(1)(a) of EPA Regulation) • relevant fees (The fees determined by the consent authority for a DA must not exceed the fees prescribed in Pt 15 of the EPA Regulation (cl 50(1)(c) of EPA Regulation). The consent authority must provide its scale of fees (cl 48(a) of EPA Regulation), and if a particular fee is set for a particular application, advice on that amount should be provided to the applicant (cl 48(b) of EPA Regulation.) • consent in writing from the owner, where the applicant is not the owner of the land to which the DA relates (cl 49(1) and Pt 1 of Sch 1, cl 1(1)(i) of EPA Regulation), and • a design verification and Building Sustainability Index Certificate (cl 50(1A)–(1B) of EPA Regulation), if the DA relates to a residential flat development, as well as other special information requirements (eg regarding site compatibility certificates, if required, or the development is in a wilderness area). A consent authority may request additional copies of a DA and supporting documents if needed for public display or referrals to other persons (cl 53 of EPA Regulation). The applicant is taken to have indemnified all persons using the DA and accompanying documents in accordance with the EPA Act against any claim or action for breach of copyright (cl 57 of EPA Regulation).

¶37-050 Interaction with consent authority When the consent authority receives a DA, it is immediately required to register the DA with a number, endorse the DA with the number and date of receipt, and give written notice to the applicant of its receipt of the DA, the DA number and the date on which it was received (cl 50(3) of EPA Regulation). If the consent authority is not the council, it must forward a copy of the DA to the relevant council for their records (cl 50(5) of EPA Regulation). A consent authority has a limited power to reject a DA, but only within 14 days after receiving it. The grounds on which a consent authority may reject a DA are specified in cl 51(1) and (2) of the EPA Regulation as follows: • the DA is illegible • it is unclear as to the development consent sought • the DA does not contain any of the information or is not accompanied by any document specified in Pt 1 of Sch 1, and/or • the DA requires an Environmental Impact Statement or Species Impact Statement (SIS) and none is provided. A DA which is rejected is taken never to have been made (cl 51(3) of EPA Regulation). There is a right to request a review of a decision to reject a DA, but only if a council is the consent authority (s 82B of EPA Act). But if a DA is rejected and there is no successful review of the rejection under s 82B, a right of merit appeal under s 97 is not available where a DA is rejected, and any dispute about the lawfulness of the rejection of a DA must take the form of civil enforcement proceedings. Where a DA is rejected, the application fee must be refunded in whole (cl 51(4) of EPA Regulation). Further, the consent authority is required to notify the applicant in writing of the reasons for rejecting the DA (cl 51(4) of EPA Regulation). A DA may be withdrawn at any time prior to its determination by way of the applicant serving a notice on the consent authority. The DA will

then be taken to have never been made. The consent authority has a discretion to refund the whole or part of the application fee, but may decide to refund nothing (cl 52 of EPA Regulation). Once a DA is withdrawn, there is no DA which can be the subject of a merit appeal and a withdrawal cannot be revoked (see Hemmes Holdings Pty Ltd v City of Sydney Council [2004] NSW LEC 539, paragraphs [4]–[9]). The consent authority may request the applicant for “such additional information about the proposed development as it considers necessary to its proper consideration of the application” (cl 54(1) of EPA Regulation). Any request for further information must be in writing and may specify a reasonable period within which to provide that information (cl 54(2) of EPA Regulation). The applicant may provide the information sought, or advise the consent authority in writing that the information sought will not be provided, or do nothing within the period specified, in which case, the applicant will be taken to have advised the consent authority that the information will not be provided (cl 54(5) and (6) of EPA Regulation). Requests for further information are important in that, the period during which additional information is sought, up until the information is either provided or refused to be provided, is discounted from the time period within which (absent a determination on a DA) the DA is deemed to be refused and a right of merit appeal arises. However, this is provided that the request for additional information is made within 25 days of lodgment of the DA (cl 109 of EPA Regulation). A consent authority is not limited to only one request for further information from an applicant. Any request for further information made after 25 days from the date of lodgment of a DA, does not “stop the clock” for determining the deemed refusal date of a DA as it does not engage the operation of cl 109 of the EPA Regulation. A DA may be amended or varied by the applicant at any time prior to its determination, but an amendment to a DA requires the agreement of the consent authority (cl 55 of EPA Regulation). The power of amendment of a DA has previously been discussed in Chapter ¶34. Where a consent authority refuses to agree to an amendment of a DA, an applicant is left with three choices:

(1) permit the consent authority to proceed to consider and determine the original DA (2) lodge a new DA (with the changes) and permit the consent authority to proceed to consider and determine both the new DA and the original DA, or (3) withdraw the original DA and lodge a new DA (with the changes) and permit the consent authority to proceed to consider and determine the new DA.

¶37-060 Public notification Under the EPA Act and EPA Regulation, there is no statutory requirement for public notification or exhibition of a standard DA (that is, a DA which is not for designated development, State significant development (SSD), advertised development or development which requires an SIS). However, if the consent authority has a policy for general public notification or exhibition of DAs, absent any statutory requirement, this may give rise to a legitimate expectation enforceable at law requiring such public notification and exhibition. This issue will be examined later in relation to public notification and exhibition requirements.

¶37-070 Interaction with other public authorities For standard DAs, there are no statutory requirements for additional interactions between the consent authority and other public authorities. The only exceptions are: • if the consent authority is not the council, it is required to send a copy of the DA to the relevant council for their records (cl 50(5) of EPA Regulation), and • if the development is on bushfire-prone land and it does not conform to the document entitled “Planning for Bush Fire Protection”, the consent authority must consult with the commissioner of the NSW Rural Fire Service on measures to be

taken to protect persons, property and the environment from bushfire danger (s 79BA of EPA Act).

¶37-080 Consideration and determination For a standard DA, the requirements for consideration and determination are as follows: • evaluation criteria in s 79C of EPA Act • additional evaluation criteria for development in coastal Local Government Areas, in the Government Coastal Policy (cl 92 of EPA Regulation) • additional evaluation criteria for the demolition of a building in Australian Standard AS 2601–1991: The Demolition of Structures (cl 92 of EPA Regulation) • additional evaluation criteria for fire safety for a DA that changes the use of an existing building, changes an existing building or erects a temporary structure (cl 93–94A of EPA Regulation) • determination provisions in s 80 of EPA Act • imposition of conditions in s 80A of EPA Act • conditions relating to deferred commencement consents (cl 95 of EPA Regulation), and • conditions relating to conditions of consent (cl 96–98E of EPA Regulation). Section 80(12) of the EPA Act provides that, if a construction certificate is issued, that certificate and any approved plans and specifications are taken to be part of the development consent, except for the purposes of the power to modify under s 96. The Minister may give notice to the consent authority that the Minister has requested a review of the environmental aspects of the proposed

development or part of the proposed development (the subject of a DA) by the Planning Assessment Commission (PAC). Where the DA is for non-designated development, the consent authority is not to determine the DA until after the consent authority has considered the findings and recommendations of the PAC and any comments by the Minister (s 80(6) of EPA Act). However, a PAC review for nondesignated development does not affect rights of appeal by an applicant. The Minister may call-in a standard DA for determination as SSD. SSD is discussed later in Chapter ¶67.

¶37-090 Effects of a development consent For a standard DA, there are no changes to the effects of a development consent generally (which are considered later), with two exceptions: (1) The first exception relates to where the consent authority is a council and the applicant may include in the DA a request for approval for certain matters for which approval is required under s 68 of the Local Government Act 1993 (NSW) (LG Act 1993) (as is specified in s 78A(3) of the EPA Act). If the Council grants consent, then it is also taken to have granted the relevant approval under s 68 of the LG Act 1993, but the LG Act 1993 has no application to any such approval in, for example, enforcement (s 78A(5) of EPA Act). It is noted that these provisions do not apply automatically to all DAs. They only apply when the applicant explicitly in the DA itself also seeks the relevant approvals under s 68 of the LG Act 1993. They do not apply to the Crown or persons acting on behalf of the Crown as s 68 does not bind the Crown (see s 78A(3) of EPA Act). (2) The second exception is that ― a development consent which approves the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the DA (subject to receipt of an Occupation Certificate under s 109M) (s 81A(1) of EPA Act).

Thus, where consent has been sought to erect a building, but not for its use for a purpose, the consent, if granted, will authorise that use provided that the use is specified in the DA. This partially overrides the decision in Holroyd Municipal Council v Mangano (1972) 2 NSWLR 439 discussed in Chapter ¶4. Note also that the proposed use needs to be specified in the DA itself. This may not extend to the documents accompanying the DA such as the plans, unless those documents were expressly included in the DA. This issue was referred to tangentially by the NSW Court of Appeal in Sevenex Pty Ltd v Blue Mountains City Council [2011] NSWCA 223 where Young JA (with whom McCall JA and Sackville AJA agreed) said as follows at paragraphs [11]–[13] and [24]: “11 The applicant relies on s 91(4) of the Environmental Planning and Assessment Act 1979 (the ‘EP&A Act’) as in force at the relevant time. The section has since been relocated in the EP&A Act with a minor amendment as s 81A(1). Section 91(4) reads as follows: ‘91(4) A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application.’ 12 The submission is that the development consent in the instant case was for the ‘establishment of a commercial development on the above mentioned land’. It then refers to the development application as shown in certain nominated plans. Mr Hale says that the purpose of the development consent was for the establishment of a commercial development on the land, and, accordingly, s 91(4) operates as a consent to the use of the land for that purpose. The aboriginal cultural exhibit, koala exhibit and vivarium are a commercial development and, accordingly, all that is needed is consent to the alteration of the partitioning, etc of the lower ground floor, but not to its use.

13 The first problem with that submission is that s 91(4) provides that the purpose is the purpose specified in the development application. The development application was never tendered before the Commissioner. Mr Hale says that his client was not the owner at the time and the respondent did not see fit to tender it, but, with respect, that does not overcome the difficulty, given that it is the applicant which bears the onus of satisfying s 91(4). … 24 Even if one assumes that the purpose stated in the development application (and we know that there would have had to be a purpose specified as that is part of the standard form) is the same as in the development consent, it is not a proper construction of the development consent to say that it was for unspecified commercial development. The development consent refers to the plans which were attached to the application and these show that the area in question was to be used for a café and the sale of souvenirs. That was the purpose and that is quite foreign from the present situation.” The matter of note is that the NSW Court of Appeal had the plans which accompanied the DA, but identified the critical missing reference as that part of the standard DA form which identified the purpose of the development. The requirements for what a DA must contain in Pt 1 of Sch 1 of the EPA Regulation do not require the use or purpose of the development to be specified, unless that is included in the description of the development (in which case the consent, if granted, would authorise the use).

¶37-100 Rights of review and appeal For a standard DA, but only where the consent authority is a council, an applicant may request the council to review its decision on the DA within the period of time within which a merit appeal under s 97 may be lodged (s 82A of EPA Act). An applicant has a right of merit appeal

against the decision of a consent authority, including a consent authority other than a council (even if a review under s 82A has been undertaken), enabling it to be taken to the Land and Environment Court of NSW within six months of the date of determination of the DA, or the date on which the DA attracts a “deemed refusal” (s 97 of EPA Act). It is noted that, if a DA is called in as SSD and there is a public hearing by the PAC, there is no right of merit appeal by an applicant. The applicant has a right of judicial review under s 123 of the EPA Act in relation to any breach of law relating to the DA. The review and appeal provisions are discussed later in Chapter ¶48.

¶37-110 Third party rights of review For a standard DA, once it has been determined, a third party (other than the applicant) has no right to seek merit review of the determination of a DA. Third parties only have a right of judicial review under s 123 of the EPA Act in relation to any breach of law relating to the DA.

DESIGNATED DEVELOPMENT Editorial information

In the case of development applications (DAs) relating to designated development, the provisions relating to standard DAs also apply unless specifically noted in the discussion following.

¶38-010 Applicant

No special or additional requirements.

¶38-020 Subject matter of a development application In the case of DAs that relate to designated development, the requirements relating to standard DAs will apply (see Chapter ¶37 at ¶37-020), in addition to any others applying to the particular DA (such as integrated development, advertised development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Additionally, the DA must be for the purpose of “designated development”. Development may be designated by an Environmental Planning Instrument (EPI) or the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) (see s 77A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)). Some EPIs designate development, such as State Environmental Planning Policy 14 — Coastal Wetlands (SEPP 14) and State Environmental Planning Policy 26 — Littoral Rainforests (SEPP 26). Local Environmental Plans (LEPs) usually do not declare development designated due to Ministerial Direction under s 117(2) of the EPA Act. This issue is discussed further in Part B of this book which looks at

EPIs and types of development, zoning, prohibitions and commencement. The primary source for identifying what is designated development is the EPA Regulation, cl 4 and Sch 3. Clause 4 provides that development “described” in Pt 1 of Sch 3 is declared to be designated development, unless it is declared not to be designated by Pt 2 or 3 of Sch 3. Part 1 of Sch 3 provides a list of descriptions of designated development under the heading “what is designated development” without any introductory preamble (often referred to as a “chapeau”) unlike earlier versions of the EPA Regulation. The subject headings for the list in Pt 1 of Sch 3 are as follows: 1. Agricultural produce industries 2. Aircraft facilities 3. Aquaculture 4. Artificial waterbodies 5. Bitumen pre-mix and hot-mix industries 6. Breweries and distilleries 7. Cement works 8. Ceramic and glass industries 9. Chemical industries and works 10. Chemical storage facilities 11. Coal mines 12. Coal works 13. Composting facilities or works

14. Concrete works 15. Contaminated soil treatment works 16. Crushing, grinding or separating works 17. Drum or container reconditioning works 18. Electricity generating stations 19. Extractive industries 20. Limestone mines and works 21. Livestock intensive industries 22. Livestock processing industries 23. Marinas and other related land and water shoreline facilities 24. Mineral processing or metallurgical works 25. Mines 26. Paper pulp or pulp product industries 27. Petroleum works 28. Railway freight terminals 29. Sewerage systems and sewer mining systems 30. Shipping facilities 31. Turf farms 32. Waste management facilities or works 33. Wood or timber milling or processing works, and

34. Wood preservation works. The list of developments declared to be designated focuses on industrial, mining and agricultural industries where there is a likelihood of air, water, noise or land pollution. Infrastructure works included in the list are limited. Commercial and residential developments are absent. Other than marinas, tourist and recreational uses are absent. The process of determining whether a development is included with the list of developments declared to be designated under Pt 1 of Sch 3 is the process of characterisation discussed in detail in relation to interpreting an LEP (see Chapters ¶20 and ¶21) and in particular, the leading case of Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323 (Chase) (see ¶21290). That process is undertaken by reference to the list of developments declared to be designated. It is not a process undertaken by reference to the purposes of development in the Land Use Table where the relevant question relates to permissibility. Reference should be made to the earlier discussion on characterisation (see Chapter ¶21) for a detailed discussion on that process. It will be noted that the list of developments declared to be designated development in Pt 1 of Sch 3 of the EPA Regulation commences with a description and purpose of development which is then qualified in one or more of the following ways: • a subset or subcategory of the description and purpose • a threshold trigger of production level • a threshold trigger of area, and • locational criteria, such as within a specified distance of a specified feature or some other characteristic of the site (eg slope of the land and flood plan). Part 4 of Sch 3 provides a series of definitions applying to Sch 3 generally, while Pt 5 of Sch 3 provides how distances are to be

measured for the purposes of Sch 3. Once a development has been characterised as being one of the types or purposes of development declared to be designated development under Pt 1 of Sch 3, the next task is to ascertain whether the development in question is excluded by the operation of the exclusion in any provisions of Pt 2 and Pt 3 of Sch 3. Exclusionary provisions fall into two categories: (1) exclusions based upon the development in question, being firstly one involving alterations or additions to development (whether existing or approved); and secondly the consent authority forming an opinion (by reference to the factors required to be considered under cl 36) that the additions or alterations “do not significantly increase the environmental impacts of the total development (ie including the additions or alterations) when compared to the existing or approved development”. (2) a general exclusion for any development included in Pt 1 of Sch 3, if it is “ancillary to other development” and is “not proposed to be carried out independently of that other development”. This general exclusion does not apply to sewerage systems identified in cl 29(1)(a) as follows: “29 Sewerage systems and sewer mining systems (1) Sewerage systems or works (not being development for the purpose of sewer mining systems or works): (a) that have an intended processing capacity of more than 2,500 persons equivalent capacity or 750 kilolitres per day, or …” This general exemption was introduced following the decision in Chase (see earlier discussion on Chase regarding this exemption). The process of determining whether a particular DA is designated

development involves the task of characterising the DA in the context of the list of development declared to be designated. The process of characterisation has been discussed in detail in relation to interpreting an LEP. The principles outlined regarding the characterisation of development are equally applicable to the actual task of characterising development to ascertain whether it is designated development, as it is to the task of ascertaining whether it is permissible or prohibited under the Land Use Table. In relation to characterising development to ascertain whether it is designated development, the leading cases are Penrith City Council v Waste Management Authority (1990) 72 LGRA 376 (Penrith) and Chase (mentioned previously), and reference should be made to the earlier discussion on these cases. The decision that a particular DA is or is not designated development is a jurisdictional fact capable of redetermination de novo by the courts in the exercise of their functions of judicial review following the decision in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 (Pallas Newco). It should be noted that the relevant NSW Court of Appeal decision in both Penrith and Chase related to question of law raised in Class 1 merit appeals, rather than in judicial review proceedings. Given the discussions in Pallas Newco and the decision in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 (Timbarra) relating to the test requiring a SIS, it is likely that the determination of whether a DA is designated development would also be held to be a jurisdictional fact by the NSW Court of Appeal.

¶38-030 Hollis v Shoalhaven City Council This issue has been considered by Pain J in the Land and Environment Court of NSW (NSWLEC) in Hollis v Shoalhaven City Council [2002] NSWLEC 83 (Hollis). Pain J held that the decision on designated development is a jurisdictional fact. She held at paragraphs [76]–[77] and [104]: “76. The parties agreed that the question of whether the development was designated was a question of jurisdictional fact. The Court understands this to mean that it is a threshold question

of fact fundamental to the exercise of statutory jurisdiction which can be objectively determined by the Court, rather than a factual determination by the First Respondent which cannot be overturned by the Court if reasonably and lawfully held by it. I agree with this submission given the statutory context in which designated development occurs. In Timbarra Protection Coalition v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52, Spigelman CJ stated at 61: ‘Where the process of statutory construction leads to the conclusion that Parliament intended that a factual reference can only be satisfied by the actual existence (or nonexistence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. Where the process of construction leads to the conclusion that Parliament intended that the primary er could authoritatively determine the existence or non-existence of the fact then, either as a rule of the statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for the present purposes — a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary er (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts. Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary er — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: See Craig Administrative Law 3rd ed, 1994, 368–370; Minister for Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.’ 77. Applying these statements to the EP&A Act context as it

applies to designated development the decision is clearly one of jurisdictional fact. Designated development provisions in the EP&A Act are prescriptive in that s 77A defines designated development as being declared under the Regulation. Schedule 3 to the EP&A Regulation defines the development which is designated. If development is designated a number of procedural requirements are detailed in the EP&A Act including the preparation of an EIS and, in s 79, the public exhibition of that EIS to enable submissions by members of the public. If a person objects within the submission period that person has an automatic appeal right under s 98 of the EP&A Act to this Court. Parliament has chosen in the legislation to treat designated development differently to other forms of development in large part because of the potential for environmental impact from such developments. Failure to correctly identify a development as designated has significant consequences in terms of the lack of an EIS, loss of public exhibition and comment period and loss of appeal rights. I view these matters as significant given the objects of the EP&A Act to encourage the proper management, development and conservation of natural resources (s 5(a)(i)), the protection of the environment (s 5(a)(vi)) and the provision of increased opportunity for public involvement and participation in environmental planning and assessment (s 5(c)). … 104. The issue of whether a development is designated under the EP&A Act is clearly a jurisdictional fact issue and consequently an erroneous decision based on it is fundamentally flawed so that the decision-maker lacks the relevant statutory jurisdiction to make the decision. Such a decision is a failure to carry out a statutory function, as the majority found in Bhardwaj.1” Thus, Hollis concluded that the question of whether a particular DA is designated development is a jurisdictional fact in judicial review proceedings. Once a consent authority has determined that a DA falls within one of the categories of designated development in Pt 1 of Sch 3, it may be

exempted under Pt 2 of Sch 3 (cl 35 of Sch 3) if the development involves alterations or additions to development (whether existing or approved) and in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (namely, the development plus the proposed additions and alterations) when compared with the existing or approved development. Thereafter, cl 36 of Sch 3 provides a list of factors the consent authority is required to consider in forming the opinion whether there is no significant increase in environmental impacts. Footnotes 1

CCH comment: This refers to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.

¶38-040 Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard The provisions of Pt 2 of Sch 3 have been considered by Pain J in the NSWLEC in Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81 (Boral Resources). In this case, Boral and Cemex challenged the validity of a development consent granted by council to rebuild a concrete batching plant at Maclean. The applicant lodged a DA which the Council considered was designated development. The applicant then amended the DA under cl 55 of the EPA Regulation and sought exemption of the amended DA from classification as designated development on the grounds provided in cl 35 of Sch 3, namely that it was an alteration or addition not significantly increasing environmental impacts. It was argued that cl 35 required a two-part test be undertaken. Firstly, whether the DA was for alterations and additions, and secondly if so, the Council was

required to form an opinion as to the environmental impacts. Pain J rejected this submission, finding at paragraph [76] as follows: “76 The resolution of this issue is determined by whether ‘in the opinion of the consent authority’ applies to the whole clause or only to the words following it. The clause is defining the circumstances in which ‘Development involving alterations or additions to development …’ is not designated development. These commencing words are not intended as separately raising a matter which the Council must determine as part of its decisionmaking under the clause on the facts of this case. The factual issue in this case of whether the application is for alterations and additions arises under cl 55 of the Regulation whereby an application for additions or amendment to a development application was accepted by the Council (a matter about which there is a separate ground of challenge — Issue 3). Clause 35 assumes that an application for alterations and additions to development has been received by the Council. These commencing words identify the matter about which the Council must form its opinion, that is, whether development involving alterations and additions is designated. The words themselves do not require the Council to do anything under the clause. ‘In the opinion of the Council’ applies to the words which follow it so that the opinion required to be formed under cl 35 is that the alterations and additions do not significantly increase the environmental impacts of the total development compared to the existing or approved development. It is to that opinion that the jurisdictional fact arguments are to be directed. Whether the September 2007 application was for alterations and additions to development is more appropriately considered because of the facts in this case in the challenge concerning cl 55 of the Regulation. Accordingly, the arguments raised by the Applicants on this aspect of whether the September 2007 application was for alterations or additions are considered in that part of the judgment considering Issue 3.” This conclusion, however, is limited to the specific facts in this case where the original DA was amended under cl 55 of the EPA

Regulation. However, Pt 2 of Sch 3 applies also to DAs which may not have been amended under cl 55, and hence, there is a precondition to the exercise of the power that the subject matter of the DA is an alteration or addition to development.

The issue was then argued as to whether the satisfaction of the Council under cl 35 of Sch 3 was a jurisdictional fact, and whether it is simply whether or not the opinion has been formed by the consent authority is the jurisdictional fact, or whether the substance of the opinion is also a jurisdictional fact. Further, it was contended that the Council failed to form the necessary opinion at all. Pain J held that the question of whether the consent authority did form its own opinion about the extent of environmental impact was a jurisdictional fact but any errors in the substance of the consent authority’s opinion of the environmental impacts are errors within jurisdiction. She held at paragraphs [88]–[90] as follows: “88 In terms of the legislative scheme in the EP&A Act and Regulation concerning the identification of designated development, in which scheme cl 35 is found, I note that designated development is significant in terms of the public participation processes required under the EP&A Act (s 79 EP&A Act and the Regulation) and the requirement to provide an EIS as part of the assessment process (s 78A(8)(c) EP&A Act and the Regulation). Third party appeal rights also arise for those who object within a specified time frame to the development. Clause 4 of the Regulation, made pursuant to s 77A of the EP&A Act states that designated development is declared to be described in Pt 1 Sch 3 unless declared not to be in Pt 2 Sch 3. Part 1 Sch 3 identifies various categories and descriptions of those categories. There is no reference in cl 4 to any subjective criterion or the formation of an opinion of consent authority as to whether development is designated. The wording of cl 4 given the scheme of the Act in relation to designated development suggests a decision under that clause is one of jurisdictional fact. 89 Given the importance of determining whether a proposed development is designated development under the scheme of the EP&A Act outlined above the opinion required to be formed by the Council under cl 35 is significant. The formation of that opinion is a precondition to the exercise of statutory power in relation to the granting of development consent. The factors identified in Pallas

Newco and Timbarra and as applied in Lesnewski suggest that whether the Council has formed the opinion is a jurisdictional issue which the Court can determine. Where however legislation refers to the formation of an opinion by the consent authority there is a likelihood that the substance of the opinion is not a jurisdictional fact which enables the court to form its own opinion (per Timbarra at [64]). Clause 35 refers to the consent authority forming its opinion as to whether the additions and alterations do not significantly increase the environmental impacts of the total development. Clause 36 identifies numerous matters which a Council must consider in determining if a development is designated in terms of the environmental impact of the additions and alterations. Those matters suggest that local and subjective factors need to be considered by knowledgeable Councillors. Therefore, contrary to the Applicants’ arguments these factors suggest that the opinion as to whether the proposed alterations and additions have a significant environmental impact is not a jurisdictional fact. 90 In terms of the negative factors identified in Pallas Newco, I consider cl 35 reflects a Parliamentary intention that once the opinion has been formed as to environmental significance by the Council whether that opinion is correct is an error within jurisdiction, rather than an error going to jurisdiction. As stated above in relation to the subjective nature of the opinion which the Council must form, local knowledge and expertise will be relevant to the assessment of the factors in cl 36 in determining whether there is or is not a significant environmental impact, a further negative factor as identified in Pallas Newco. There is also a degree of inconvenience whereby the incorrect assessment by a Council that an application for alterations and additions which does not result in significant environmental impact giving rise to a consent is valid on its face is subject to challenge. In conclusion therefore, the jurisdictional fact requiring determination is whether the Council did form its own opinion about the significance of the environmental impact of the proposed alterations and additions.” It should be noted that the substance of the Council’s opinion on the

environmental impacts could be reviewable on the basis on the principles in the High Court decision in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (see also further commentary on this case in Chapters ¶23 and ¶24). Pain J proffered a preliminary view that the comparative task required by cl 35 is with the original consent fully exploited and the current proposal (see paragraph [91]). No specific evidence in Boral Resources showed whether the Council had formed the opinion required by cl 35 of Sch 3. Pain J held that there was no evidence from which it could be inferred that the council had formed the necessary opinion, while the Council officers’ report in highlighting environmental deficiencies suggested the contrary. As such, she held that the Council had failed to form the requisite opinion and that error gave rise to invalidity of the consent as the formation of that opinion was necessary to enable the DA not to be considered as designated development.

¶38-050 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd The construction of Sch 3, Pt 2, cl 35 of the EPA Regulation exempting certain alterations or additions to development from being designated development was further considered by the NSW Court of Appeal in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 (Darley). McColl JA (with whom Macfarlan JA and Whealy JA agreed) held at paragraphs [82]–[83] that the development described in the DA is the subject matter of the inquiry and comparison required by cl 35, not some larger development. She held: “82 Once it is recognised that the question whether a development application is in respect of ‘designated development’ turns on identifying the subject of the application, it must also follow that the cl 35 inquiry is directed to the same subject. 83 It was accordingly, the development described in the DA which framed the cl 35 inquiry.” McColl JA noted the poor drafting of cl 35 at paragraphs [86]–[88]:

“86 Clause 35 is not happily framed. Indeed, Talbot J substantially embraced the proposition that ‘the provision, when strictly read, makes no sense’: Timbarra Protection Coalition Inc v Ross Mining NL [1998] NSWLEC 19; (1998) 99 LGERA 345 (at 354) (partly reversed on appeal, but not on this point). 87 On a textual analysis cl 35 involves an element of circularity or, as Talbot J said (at 354): ‘It refers to an increase to the environmental impacts of the total development compared with the existing or approved development, whereas the real test is any increase of environmental impacts of the existing or approved development brought about by the alterations or additions. The intention of Item 1 is to require the consent authority to compare the environmental impacts of the existing or approved development with the environmental impacts of the total development, including the additions or alterations.’ At the time his Honour wrote, cl 35 (expressed in identical terms) was Item 1 in Pt 2, Sch 3 of the Environmental Planning and Assessment Regulation 1994. 88 Talbot J’s interpretation of cl 35 is clearly correct. The purpose of cl 35 is to identify situations where an EIS will be required to accompany a development application in respect of ‘designated development’. An EIS would be appropriate if the effect of alterations or additions would be to increase significantly the environmental impacts of an existing development.” But the task required by cl 35 is to identify if the effect of the alterations or conditions would be to increase significantly the environmental impacts of an existing development. McColl JA held at paragraph [101]: “101 Thus, subject to what appears below, I would conclude that an applicant for development consent seeking to rely on cl 35 to establish that a development was not ‘designated development’, had to demonstrate the elements of that clause to the relevant decision-maker. The first step in that process required

identification of an ‘existing or approved development’.” Further, McColl JA held the person seeking to rely upon cl 35 had the onus of proof of an existing or approved development. Conclusions The following conclusions may be derived from Darley: • Where a DA seeks to be exempted from being designated development under Sch 3, Pt 2, cl 35 of the EPA Regulation, it is the development described in that DA to which the comparison required by the clause is directed. • The purpose of cl 35 is to identify that an Environmental Impact Statement (EIS) is required if a DA for alterations or additions would increase significantly the environmental impacts of an existing development. • To utilise cl 35 to obtain an exemption from the need for an EIS, the applicant needs to first identify what is the “existing or approved development” and the onus to do this rests with the applicant. Where a DA is lodged that is determined to be designated development, but includes components or elements which, if subject to a separate DA, would not have been designated development, it is the entire DA that is assessed as designated development under the EPA Act. Hence, the entire DA is the subject of an EIS and the rights for objector appeal under s 98 of the EPA Act and not simply those parts of the DA which, if applied for separately, are designated development (see Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council [2001] NSWLEC 28). Further exemptions are provided to what would otherwise be designated development by Pt 3 of Sch 3 of the EPA Regulation. Clause 37A of Sch 3 provides that development which falls within Pt 1 of Sch 3 is not designated development if it meets two requirements: (1) it is ancillary to other development. The reference to “ancillary” is presumably to its construction as referred to by Meagher JA in

Baulkham Hills Shire Council v Donnell (1990) 69 LGRA 404 at p 409–410, namely of being related; and (2) it is not proposed to be carried out independently of that development. This second requirement may simply suggest that the development proposed will only be carried out while the other development also is carried out or it may require that it is subsumed within that other development, in a manner similar to the characterisation process for an existing use, when the task of characterisation is approached not by reference to the categories of purpose in the Land Use Table or EPI, but solely by reference to the development itself. The reference in cl 37A to “that other development” is likely to refer to any other development on or adjacent to the site of the proposed development and is confined to other development within the DA under consideration, but extends to other development in place or previously approved. Clause 37A was added following the decision in Chase and is discussed further in earlier consideration of characterisation (see Chapter ¶21). However, the exemption in cl 37A does not apply to sewerage systems or works exceeding the capacity limits set in cl 29(1)(a) of Sch 3.

¶38-060 Where is a development application lodged? The requirements on where a DA for designated development is to be lodged are the same as those applying to a standard DA (see ¶37030).

¶38-070 Information required The information to be lodged with a DA for designated development includes all that required for a standard DA (see ¶37-040) with some variations and additions. The changes to the information requirements for a DA for designated development from those applying to a standard DA are as follows: • An EIS prepared by or on behalf of the applicant in the prescribed

form and with the prescribed content is required: Sch 2, cl 6 and cl 7 of the EPA Regulation. • A Statement of Environmental Effects is not required: cl 50 and Pt 1(2)(1)(c) of the EPA Regulation. • The maximum fee for a DA for designated development has a surcharge of $715.00: cl 250 of EPA Regulation. The form and content of an EIS is provided for in Sch 2, cl 5 and cl 6 of the EPA Regulation and set out in Chapter ¶71. In addition, the Department’s website under “Register of Development Assessment Guidelines” contains a large number of other guideline documents prepared either by the Department or other government agencies.2 The Department’s website describes the status of these assessments as follows: “This Register of Development Assessment Guidelines provides a comprehensive list of the guidelines to be utilised by councils, developers, consultants and the general public for the purposes of development assessment. This important resource tool also includes guidelines that can assist councils when developing local environmental plans, development control plans and local policies.” Schedule 2 applies not only to EISs prepared to accompany a DA for designated development but also applies to EISs prepared for State significant development under Div 4.1 of Pt 4, EISs prepared under Pt 5 of the EPA Act, and State significant infrastructure under Pt 5.1 of the EPA Act (Sch 2, cl 5 of EPA Regulation). The judicial consideration of the requirements for the contents of an EIS will be discussed in Chapter ¶71 in relation to Environmental Impact Assessment. In preparing an EIS, an applicant is required to apply to the DirectorGeneral to obtain environmental assessment requirements for a proposed EIS. The person preparing the EIS must ensure the EIS complies with any environmental assessment requirements (Sch 2, cl 3 of EPA Regulation). Where the DA is also for integrated

development, the Director-General must request from each approval authority any requirements it may have in relation to the EIS and these must be provided to the Director-General within 14 days (Sch 2, cl 4 of EPA Regulation). Environmental assessment requirements for an EIS issued by the Director-General are only current if the DA is lodged within two years of the notice of the Director-General’s requirements (Sch 2, cl 3 of EPA Regulation). The requirement to obtain and comply with the Director-General’s environmental assessment requirements in the preparation of an EIS is an important step in the process. The judicial consideration of the consultation with, and having regard to the Director-General’s requirements for the preparation of an EIS, is discussed in Chapter ¶71. Where a document is adopted or referred to in an EIS, that document is taken to be part of the EIS (Sch 2, cl 9 of EPA Regulation). This is important as such documents need to be made available as if they are part of the EIS itself. Footnotes 2

NSW Government, Department of Planning and Infrastructure, accessed 13 Assessment Guidelines”, www.planning.nsw.gov.au/DevelopmentAssessments/RegisterofDevelopme AU/Default.aspx.

¶38-080 Interaction with consent authority A DA for designated development is subject to the same requirements for interaction with the consent authority as a standard DA (see ¶37050), with the additional requirements as follows: • The consent authority may require the applicant to provide additional copies of the EIS (Sch 2, cl 10 of EPA Regulation). • The consent authority may sell the EIS to the public for a price of not more than $25 and must pay the proceeds to the applicant

(Sch 2, cl 8 of EPA Regulation). An EIS is one of the documents that accompany a DA for designated development and so the consent authority may reject a DA for designated development on the grounds that the DA is not accompanied by an EIS, provided this is done within 14 days of receipt of the DA (cl 51(1)(C) of EPA Regulation).

¶38-090 Public notification DAs for designated development have specific requirements for public notification and exhibition. Section 79 of the EPA Act requires three types of public notification of a DA for designated development: (1) written notice to neighbours and the owners of land which may be detrimentally affected (2) a sign exhibited on the land to which the DA relates, and (3) a newspaper advertisement. Additionally, s 79(6) provides for certain circumstances in which public exhibition may be dispensed with. Provisions of s 79 are expanded by the EPA Regulation as follows: • The consent authority is required to notify other public authorities who, in its opinion, may have an interest in the DA (cl 77). • The contents of the notice to neighbours and owners of affected land required to be notified under s 79(1)(b) are specified (cl 78). • The contents of the notice to be exhibited on the land, and how it is exhibited on the land, as required under s 79(1)(c), are specified (cl 79). • The contents of the newspaper advertisement and its size and publication periods as required under s 79(1)(d) are specified (cl 80).

During the submission period, any person may inspect the DA and accompanying information and may make extracts or copies of them (s 79(4)). During the submission period, any person is entitled to make a written submission regarding a DA for designated development and where such a submission is an objection, the submission needs to set out the grounds of the objection (s 79(5)). It is noted that s 79(6) enables an amendment, substitution or later replacement to a DA for designated development where the original DA has been publicly exhibited to dispense with the need for reexhibition if the consent authority considers the amended, substituted or later DA differs only in minor respects from the original one. Judicial consideration of the notification requirements for DAs for designated development and their EISs is discussed later in relation to public exhibition of DAs.

¶38-100 Interaction with other public authorities The requirements for the consent authority for a DA for designated development to interact with other public authorities in addition to those required for a standard DA (see ¶37-070), are as follows: • The consent authority is to provide the Director-General with a copy of the DA and EIS (if the Director-General or the Minister is not the consent authority) and to the council (if the council is not the consent authority (cl 50(6)). • The consent authority is required to notify other public authorities who in its opinion may have an interest in the DA (cl 77). • The consent authority is required to send to the Director-General copies of all public submissions received in response to the public notification as soon as the exhibition/notification period has expired (cl 81).

¶38-110 Consideration and determination

The provisions relating to consideration and determination for a DA for designated development are the same as apply to a standard DA (see ¶37-080), with the following additional requirements: • The consent authority is to forward any submissions on a DA for designated development to the Director-General (cl 81 of EPA Regulation). • The consent authority is required to take into consideration any submissions made in relation to the DA (s 79C(1)(d)). • The Minister may give notice to the consent authority that the Minister has requested a review of all or any part of the proposed development (the subject of a DA) by the Planning Assessment Commission (PAC). In these circumstances, the consent authority cannot determine the DA until after it has considered the report of the PAC and any comments of the Minister (where the Minister is not the consent authority (s 80(6) and (7)). There is no right of applicant or objector appeal if the PAC has held a public hearing (s 97(7) and s 98(5)). • Where a DA relates to designated development, the consent authority cannot determine the DA until after the public submission period has expired, or where a submission has been made, after 21 days following the forwarding of submissions to the Director-General (s 80(9)), subject to exceptions (s 80(10)). • All persons who made a submission on a DA for designated development are required to be notified by the consent authority of its determination of the DA (s 81) and if the person objected, an objector is required to be notified of their appeal rights (s 81(3)).

¶38-120 Effects of a development consent A development consent issued for designated development has the same effect as a development consent issued for a standard DA (see ¶37-090), with the following alterations: • A development consent issued for designated development does

not become effective and operate from the date endorsed on the notice of determination (unless the consent was granted by the Minister after a review by the PAC), but it becomes effective and operates after the expiry of 28 days from the date endorsed on the notice of determination (s 83(1)(b)). This is to provide objectors to designated development the required time period to decide if they wish to exercise their right of third party merit appeal under s 98. • If either the applicant or an objector makes a merit appeal under s 97 and s 98, the development consent ceases to be effective and operative until the determination of that merit appeal (s 83(2)).

¶38-130 Rights of review and appeal For a DA for designated development, there is no right of internal merit review under s 82A. In addition, an applicant for designated development has the same rights of merit appeal under s 97 as an applicant for a standard DA (see ¶37-100), unless the Minister has required a review of the DA for designated development by the PAC, in which case, if the PAC has held a public hearing, the applicant has no right of merit appeal under s 97 (see s 97(7)).

¶38-140 Third party rights of review For a DA for designated development, unlike for a standard DA (see ¶37-110), any objector has a right of merit appeal to the NSWLEC under s 98. This right must be exercised within 28 days after the date on which notice of determination was given. The right of appeal is confined to a person who is an “objector”. “Objector” is defined in s 4(1) as follows: “Objector means a person who has made a submission under section 79(5) by way of objection to a development application for consent to carry out designated development.” Judicial consideration of the extent of the meaning of “objector” will be discussed later in this book in relation to public exhibition of DAs. An

objector, however, does not have a right of merit appeal against the determination of a DA by the consent authority after a public hearing by the PAC (s 98(5) of EPA Act).

ADVERTISED AND SPECIFIED DEVELOPMENT Editorial information

In the case of development applications (DAs) for advertised and specified development, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as integrated development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these.

¶39-010 Applicant No special or additional requirements.

¶39-020 Subject matter of a development application Additionally, the DA must be for “advertised development” or “specified development”. Advertised development is defined in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as follows: “advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan. Advertised development includes any development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 that is not designated development.” Thus, advertised development is any development (other than designated development) which is identified as advertised development by the following: • regulations • an Environmental Planning Instrument (EPI) • a Development Control Plan (DCP), and • any development for a scheduled activity or at any scheduled premises under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) that is not designated development. This captures all development which requires a licence, is already covered by a licence, or requires an amendment to a licence

under the POEO Act and is not otherwise designated development. Clause 5 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) declares a number of categories of development to be advertised development and provides as follows: “5 Advertised development (cf clause 63 of EPA Regulation 1994) (1) For the purposes of the definition of advertised development in section 4(1) of the Act, the following types of development (not being designated development or State significant development) are identified as advertised development: (a) (Repealed) (b) integrated development (not being threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 90A of the Act) under: (i) a provision of the Heritage Act 1977 specified in section 91(1) of the Act, or (ii) a provision of the Water Management Act 2000 specified in section 91(1) of the Act, or (iii) a provision of the Protection of the Environment Operations Act 1997 specified in section 91(1) of the Act, referred to in this Regulation as nominated integrated development. (c) development referred to in section 78A(8)(b) of the Act, referred to in this Regulation as threatened species development,

(d) development that, pursuant to State Environmental Planning Policy No. 62 — Sustainable Aquaculture, is Class 1 aquaculture development, referred to in this Regulation as Class 1 aquaculture development. (2) For the purposes of this Regulation, each of the following kinds of development, namely: (a) nominated integrated development, (b) threatened species development, (c) Class 1 aquaculture development, (d) any development that is identified as advertised development by an environmental planning instrument or a development control plan, is referred to in this Regulation as other advertised development. (3) (Repealed)” In addition to development declared as advertised development under cl 5 of the EPA Regulation, the applicable EPIs and DCPs applying to land need to be reviewed to ascertain whether any of them declare development to be advertised development. Section 79A of the EPA Act provides: “79A Public participation — advertised development and other notifiable development (1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan. (2) A development application for specified development (other than designated development or advertised development)

must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application. …” Section 79A(2) identifies an additional class of DAs called “specified development”, where such DAs must be notified or advertised in accordance with a DCP if so required. The difference between “advertised development” and “specified development” is that “advertised development” has to be notified in accordance with cl 86–91 of the EPA Regulation as well as any provisions in an EPI or DCP, while “specified development” is required to be notified only in accordance with the provisions of a DCP and is not required to conform with the notification requirements in the Act, regulations or any applicable EPI.

¶39-030 Centro Properties Ltd v Hurstville City Council and Others In Centro Properties Ltd v Hurstville City Council and Others [2006] NSWLEC 78 (Centro v Hurstville), Talbot J in the Land and Environment Court of NSW considered the distinction between “advertised development” and “specified development”. In that case, it was argued that cl 5(2) of the EPA Regulation operated to include any development identified as advertised development in a DCP, such as specified development, within the category of advertised development. The effect of this submission was that cl 5(2)(d) operated to make all specified development advertised development. Talbot J held at paragraphs [11]–[14] as follows: “11 Specified development is not defined, yet the term appears in various provisions of the EPA Act (see ss 76(1), 76A(1) and 76B(a)). The applicant’s argument is that the use of the term ‘specified development’ where used in the EPA Act is consistent with a reference or references to a type or types of development

of which Category D is one. The first respondent disputes that the development is advertised development but concedes that it falls within the category of specified development. 12 The structure of the legislation is that advertised development is defined by the EPA Act in a way that requires it to be identified separately by the Regulations, an environmental planning instrument or a development control plan. In this respect cl 5 is framed in two parts. Subclause 1 identifies four types of development (none of which include the subject development) ‘for the purposes of the definition of advertised development in section 4’. Subclause 2 in terms does no more than specify the ‘kinds of development’ that are included in the term ‘other advertised development’ in the Regulation. Subclause 2 does not of itself create a type of advertised development contemplated by the definition in s 4. It is no more than an interpretation clause in respect of the parts of the Regulation that refer to ‘other advertised development’. The development referred to in cl 5(2) (a), (b) and (c) are respectively defined in cl 5(1)(b), (c) and (d). Development that was classified as state significant development before the repeal of s 76A(7) of the Act is not included within any reference to ‘other advertised development’. Therefore upon a proper construction of cl 5 of the Regulation the subject development is not identified as advertised development by the Regulations. 13 It is noteworthy that there are separate regimes for affording public participation in the development application process in respect of designated development (Division 5), state significant advertised development (Division 6) and other advertised development (Division 7) in Part 6 of the Regulation. The Regulation does not provide for a separate or distinct regime in respect of advertised development identified by a DCP. 14 The omission of the subject development from the types of development identified by cl 5(1) of the Regulation means that the subject development has not been identified as advertised development by the Regulations and accordingly it does not fall within the definition in s 4 on that account.”

Thus, Talbot J in Centro v Hurstville maintained the distinction between advertised and specified development, with the former required to comply with the notification procedures in cl 86–91 of the EPA Regulation as well as any requirements in an EPI or DCP, while specified development needs to comply with the notification requirements in a DCP.

¶39-040 Where is a development application lodged? A DA for advertised or specified development is lodged in accordance with the same requirements as a standard DA (see ¶37-030).

¶39-050 Information required A DA for advertised or specified development is required to include the same information required for a standard DA (see ¶37-040). However, the standard DA fee has a surcharge for the giving of notice as provided in cl 252 of the EPA Regulation.

¶39-060 Interaction with consent authority A DA for advertised or specified development has the same requirements for interaction with the consent authority as applying for a standard DA (see ¶37-050).

¶39-070 Public notification The public notification provisions for advertised development and specified development diverge. A DA for advertised development or specified development must comply with the notification requirements of the following: • EPA Act • EPA Regulation • relevant EPIs, and

• relevant DCPs (s 79A of EPA Act). The EPA Regulation contains provisions in cl 82–85 relating to State significant development (SSD), a category established by Div 4.1 of Pt 4 of the EPA Act. These are considered in Chapter ¶67 on SSD. The notification requirements for advertised development in the EPA Regulation are in cl 86–91 as follows: • Written notice is to be given to adjoining owners and public authorities whom the consent authority considers may have an interest (cl 88). • Notice is to be published in a local newspaper (cl 87). • The contents of both a written and published notice are specified, inviting submissions within a specified period (cl 79). • The exhibition and submission period is 30 days for nominated integrated development or threatened species development. For all other advertised development, the period is 14 days (cl 89(3)). • Where the DA is amended, substituted or replaced by a later DA, the notification requirements can be dispensed with, if the original DA complied with them and the consent authority considers that the changes are only minor (cl 90). Additionally, a DA for advertised development must comply with any further notification requirements in an applicable DCP (s 79A(2)). A DA for specified development is only required to comply with the notification requirements in an applicable DCP (s 79A(2)).

¶39-080 Interaction with other public authorities A DA for advertised development or specified development has the same requirements for interaction with public authorities as a standard DA (see ¶37-070), save the requirement for the consent authority to notify public authorities it considers may be interested (cl 88).

¶39-090 Consideration and determination The provisions relating to consideration and determination for a DA for advertised development or specified development are the same as those which apply to a standard DA (see ¶37-080) with one additional requirement that the consent authority is required to take into consideration any submission made in relation to the DA (s 79C(1) (d)).

¶39-100 Effects of a development consent A development consent for advertised development or specified development has the same effect as a development consent for a standard DA (see ¶37-090).

¶39-110 Rights of review and appeal A development consent for advertised development or specified development has the same provisions for review and appeal as a development consent for a standard DA (see ¶37-100).

¶39-120 Third party rights of review A development consent for advertised development or specified development has the same provisions for third party rights of merit review as a development consent for a standard DA (see ¶37-110), namely none. A person who objects in a submission to the consent authority in relation to advertised development or specified development is not an “objector” as defined in s 4(1) and hence, has no right of third party merit appeal under s 98.

INTEGRATED DEVELOPMENT Editorial information

In the case of development applications (DAs) that relate to integrated development, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, advertised development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the Standard DA requirements, unless they are specifically altered for that other type. In the case of DAs that relate to Crown development, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development, or the requirement for an SIS). 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these.

¶40-010 Applicant No special or additional requirements.

¶40-020 Subject matter of a development application Additionally, the DA must be for “integrated development” which is defined in s 91 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and provides as follows: “91 What is ‘integrated development’? (1) Integrated development is development (not being State significant development or complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals: …” The relevant approvals are set out in Table 40.1 following. Table 40.1: Approvals required for integrated development

Hence, integrated development is development which requires a development consent and, in addition, will also require one or more of the approvals under other legislation. Of these approvals, the requirements for a permit to impact on Aboriginal heritage (s 90 of

National Parks and Wildlife Act 1974 (NSW)), the need for an environment protection licence (under the Protection of the Environment Operations Act 1997 (NSW)), an approval (under s 138 of the Roads Act 1993 (NSW)) and an approval for work within 40 metres of a stream (s 89, s 90 and s 91 of the Water Management Act 2000 (NSW)) are the most commonly encountered circumstances where integrated development arises. It is important to note that the integrated development provisions only arise where one or more of the specific further approvals identified in s 91 of the EPA Act (see Table 40.1) are required. They do not arise where other statutory approvals (not referred to in s 91) are also required for a development.

¶40-030 Maule v Liporoni & Anor In Maule v Liporoni & Anor [2002] NSWLEC 25 (Maule v Liporoni), Lloyd J in the Land and Environment Court of NSW heard a challenge to the validity of a development consent to erect a dwelling at Woy Woy. One of the grounds of challenge raised in these proceedings was that the development required an approval under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (NSW) (RFI Act) as it was situated within 40 metres of a river as defined under the RFI Act. The requirement for a Pt 3A permit under the RFI Act was (at the relevant time of this matter) an approval included in s 91 of the EPA Act as a trigger for integrated development. Subsequently, the RFI Act was repealed and the substance of the requirement for a Pt 3A approval now appears in s 89, s 90 and s 91 of the Water Management Act 2000 (NSW), which are now a trigger for integrated development under s 91 of the EPA Act. Hence, the applicant claimed the DA was for integrated development, but it had not been identified as such by the applicant (as required in a DA by Pt 1 of Sch 1 cl 1(1) (g) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation)), nor had the consent authority complied with the special requirements for integrated development in s 91A–93B of the EPA Act (discussed later). However, subsequent to the grant of development consent, a permit under Pt 3A had been obtained when the then Department of Land and Water Conservation (which administered Pt 3A of the RFI Act) sought one.

In this case, Lloyd J found that the land was not within 40 metres of a river and so a Pt 3A approval under the RFI Act was not required. Lloyd J held at paragraphs [82]–[87] as follows: “82. Moreover, even if one were to assume that there was a river as defined in the Rivers and Foreshores Improvement Act and that the subject land is ‘protected land’ under that Act, it does not follow that the council has acted unlawfully in failing to process the development application as integrated development. 83. The provisions of Pt 4, Div 5 of the EPA Act are beneficial and facultative. They were enacted to overcome delays and duplications where there is more than one consent or approval body for a particular development so that an applicant for consent would not have to go through the whole process again for each application. The beneficial and facultative nature of the legislation is explained by the Minister’s second reading speech on the relevant Bill which introduced the legislation: ‘The solutions contained in the bill focus on reducing necessary delays and duplication, simplifying the assessment process as much as possible and achieving consistency and certainty across multiple environmental approvals. … While there will still be a need for the applicant to obtain the other relevant approvals, greater certainty for the applicant and the community will be provided as multiple assessment processes will be collapsed into the one overall framework.’ (Hansard, Legislative Assembly, 15 October 1997, pp 821– 832) 84. If a development application is made for integrated development, the effect of any subsequent development consent is that an approval body, following notification of the development application, and which then fails to inform the consent authority whether or not it will grant the approval or to inform it of the general terms of its approval, cannot subsequently refuse to grant

approval to an application for approval in respect of that development and any such approval must not be inconsistent with the development consent (s 91A(5)). The provisions relating to integrated development are there for the benefit of applicants for development consent and not to hinder them. 85. As noted in the second reading speech, the granting of development consent for integrated development does not avoid the need to obtain any other relevant approvals. Even if the development application had been processed as integrated development and a development consent had been granted on that basis, Mr Liporoni would still have had to apply for and obtain a permit under Pt 3A of the Rivers and Foreshores Improvement Act assuming for the moment that the site of the building was on ‘protected land’. 86. In making the development application Mr Liporoni did not tick the box in the application form to indicate that consent was being sought for an integrated development approval. In so doing he elected to have his development application processed as if it were not an application for integrated development. That was his choice. There was and is no compulsion on an applicant to make an application for an integrated development approval, if he or she chooses not to do so. 87. There is nothing unlawful in an applicant for development consent so electing. There is nothing unlawful in the making of the development application in the present case, neither is there anything unlawful in the council’s failure to process the development application as if it were for integrated development.” Hence, Lloyd J held that the provisions of the EPA Act in relation to integrated development are beneficial and facultative for the applicant. They are not designed to impose additional requirements on an applicant for a DA but rather to confer upon them a benefit in reducing delays and duplication in obtaining the further approvals. Where a DA applicant fails to identify a DA as being one that is for integrated development, he/she has elected for the DA to be processed without the procedures beneficial to him/her. That choice is open to the

applicant. There is nothing unlawful about electing this option, nor is there anything unlawful in the consent authority failing to process the DA as integrated development.

¶40-040 Where is a development application lodged? The lodging requirements for a DA for integrated development are not different from what otherwise would apply to a standard DA (see ¶37030).

¶40-050 Information required A DA for integrated development is required to include the same information required for a standard DA (see ¶37-040). The following additional requirements apply: • The DA form needs to list any of the approvals listed in s 91(1) of the EPA Act that will be required (Pt 1 of Sch 1, cl 1(1)(f) of the EPA Regulation). • An additional fee is required if a DA is for integrated development (cl 253 of EPA Regulation).

¶40-060 Interaction with consent authority A DA for integrated development has the same requirements for interaction with the consent authority as applying to a standard DA (see ¶37-050).

¶40-070 Public notification Some (but not all) DAs for integrated development are declared as advertised development. These DAs comprise developments which also require an approval under the following: • s 91(1) of the Heritage Act 1977 (NSW) • s 91(1) of the Water Management Act 2000 (NSW), and/or

• any of the specified approvals under the Protection of the Environment Operations Act 1997 (NSW) referred to in s 91A of the EPA Act. Such DAs are referred to as “nominated integrated development” (cl 5 of EPA Regulation) and hence, are required to comply with the provisions for advertised development referred to above. It is noted that the automatic requirement for DAs for nominated integrated development gives rise to rights of public notification which do not necessarily apply to all DAs. Hence, a DA for nominated integrated development may not be simply beneficial and facultative, and so within the principles outlined in Maule v Liporoni if the failure to treat a DA as being for integrated development deprives the public of a right for public exhibition and the making of a submission. If a DA for integrated development is also designated development or advertised development, and is publicly notified in accordance with the requirements for designated development and advertised development, and it has complied with the procedures for integrated development, and development consent has been granted, then any requirements in other legislation for public notice are taken to have been complied with (s 92A of EPA Act). This dispenses with the need to readvertise the applications for other approvals included within the triggers for integrated development.

¶40-080 Interaction with other public authorities In addition to the requirements for interaction with other public authorities for a standard DA (see ¶37-070), a DA for integrated development is required to meet the following interaction requirements with what are defined as approval bodies under s 90A, being the person who grants one of the approvals listed in s 91 as a trigger for integrated development: • The consent authority for a DA for integrated development is required to obtain from each approval body their “general terms of any approval proposed to be granted by the approval body” (s 91A(2) of EPA Act). However, the consent authority need not do

this if it proposes to refuse to grant development consent. • The consent authority is required to forward the DA to each approval body whose approval is required within 14 days of the lodging of the DA (cl 66 of EPA Regulation). • An approval body may request the consent authority to provide additional information and the consent authority must request this information from the applicant, who may either provide the information or refuse (cl 67 of EPA Regulation). • If one of the grounds on which a DA is integrated development is that it requires a consent under s 90 of the National Parks and Wildlife Act 1974 (NSW) to impact Aboriginal heritage and if the Director-General of National Parks and Wildlife considers there should be consultation with Aboriginal persons or organisations, the consent authority is to be so notified (cl 68 of EPA Regulation). • If a DA for integrated development is also advertised development or designated development or specified development, the consent authority is to forward all public submissions to each approval body (cl 69 of EPA Regulation). • An approval body is to give notice to the consent authority of its decision concerning the general terms of approval relating to the DA (including whether or not it will grant an approval) within 40 days, or if the DA was publicly advertised or notified, then 21 days after it receives the public submissions (cl 70(1) of the EPA Regulation). Thus, the approval body’s role is to identify either the general terms of approval or whether the DA is to be refused. A consent authority must notify an approval authority if it has decided to refuse to grant consent, and in such circumstances, the approval body is not required to provide general terms of approval (cl 70(2) of EPA Regulation).

¶40-090 Consideration and determination

The same provisions relating to consideration and determination apply to a DA for integrated development as they apply to a standard DA (see ¶37-080), with the following exceptions. Section 91A of the EPA Act provides, in part, as follows: “91A Development that is integrated development (1) This section applies to the determination of a development application for development that is integrated development. … (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purpose of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval: (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent: (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and

(iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other act or law. …” The effect of s 91A(3) and (4) is to require the consent authority to issue any resulting development consent for a DA for integrated development either: • to grant consent consistent with the general terms of approval, or • to refuse consent if an approval body advises that it will not grant an approval under its legislation. However, a consent authority may also refuse development consent to a DA for integrated development and on grounds relating to the same subject area considered by an approval authority (see s 91A(2) and s 92) even though an approval authority has provided general terms of approval indicting an approval subject to conditions, with the exception where a heritage approval is required under s 57(1) of the Heritage Act 1977 (NSW). In these cases, the consent authority may still refuse the DA on other grounds, but it cannot refuse the DA on heritage grounds (s 92 of EPA Act). Where an approval authority advises it proposes to refuse an approval, s 91A(4) provides the consent authority with no discretion. It must refuse to grant development consent. Where an approval authority provides general terms of approval (other than advice to refuse), the consent authority has some limited flexibility as follows: • It may still refuse to grant consent, and that refusal may be based on grounds in relation to the same subject area considered by an approval authority, except for heritage grounds when the DA requires a heritage approval. • Where it decides to grant consent, any consent must be “consistent” with the general terms of approval. Firstly, the use of

the word “consistent” is likely to have the same meaning as used in the context of zone objectives in an EPI and discussed previously in relation to interpreting an EPI. Secondly, what an approval authority provides are “general terms of any approval”. The use of the qualifying adjective “general” to the “terms of any approval” suggests a discretion of the consent authority to reformulate or redraft them provided the outcome is consistent. It is noted that, if a condition included in a development consent as a result of a general term of approval, which would otherwise be beyond power for the consent authority, it is taken to be within power (s 91A(3) of EPA Act). The scope of lawful conditions of a development consent will be discussed in a later section. However, it appears otiose for such a provision to be included that would make lawful conditions which would otherwise be unlawful (such as lacking finality and certainty, deferring for later determination a key aspect of a development, imposing a requirement for monetary contribution or the dedication of land not otherwise authorised) simply because they were part of the general terms of approval provided by an approval authority. Where general terms of approval are provided by an approval authority which is also a concurrence authority, the granting of the general terms of approval is taken to also be the granting of concurrence provided the subject matter considered is the same for both (s 93A of EPA Act).

¶40-100 Effects of a development consent A development consent for integrated development has the same effect as a development consent for a standard DA (see ¶37-090). In addition, a development consent for integrated development, once granted, affects the subsequent approvals required for that development from approval bodies to whom the DA had been referred under the provisions of s 91A of the EPA Act, as provided in s 93 of the EPA Act. Section 93 requires an approval body to grant approval to any

subsequent application for one of the approvals under other laws referred to in s 91(1) where the integrated development provisions have been followed (s 93(1)). The effect of s 93(1) is to require approval bodies to grant subsequent approvals where a development consent has been granted for integrated development and thus, curtails their discretion. Further, any subsequent approval may include conditions that are “not inconsistent with the development consent” (s 93(2)), again curtailing the discretion of an approval body where a development consent has been granted for integrated development. However, these provisions only apply where the application for the subsequent approval is made within three years of the date of granting of development consent for integrated development and the development consent has not lapsed or been revoked (s 93(4)). The requirement that an approval body approves a subsequent approval of a type referred to in s 91A of the EPA Act does not apply if the application in question is one for the renewal of an approval (s 93(3)). But this does not remove the requirement for conditions to not be inconsistent with the development consent. Also, once the approval body has granted an approval, it cannot vary the approval, other than variations not inconsistent with the development consent (s 93(4)). Where a development consent is modified under s 96 or s 96A, the approval authority can modify its approval “to any necessary consequential effect” (s 93(5)(b)) and hence, this limits the approval body where a modification is approved to a development consent for integrated development to change its approval, but only to changes which are a necessary consequence of the approval of the modification of the development consent. Hence, a development consent for integrated development has a potential effect of curtailing or limiting the discretion of approval bodies in deciding subsequent applications. The underlying policy is to give the development consent a primacy in relation to subsequent approvals and to require those subsequent approvals to be granted consistently or not antipathetically to the development consent. However, by providing the approval bodies for those subsequent approvals with not just an input into the development approval process, but a right of absolute veto, it has given rise to a number of

unintended consequences at odds with the underlying policy, namely: • it has meant that “the tail wags the dog” in that instead of establishing the primacy of the development consent, by providing the approval bodies with an absolute power of veto, it establishes the primacy of the approval bodies over the consent authority, and • it has brought forward an applicant’s requirement to prepare detailed information needed to meet an approval body’s requirements in relation to the subsequent approvals to the DA stage, thereby increasing the extent of documentation (and the cost) to the applicant which may not be necessary for the determination of a DA. The force of these unintended consequences has clearly been recognised by the Minister as the right of veto for an approval body does not apply to DAs for State significant development under Div 4.1 of Pt 4 determined by the Minister (nor did they apply to the precursor provisions for major developments under the now repealed Pt 3A).

¶40-110 Ulan Coal Mines v Minister for Mineral Resources The effect of the equivalent of the integrated development provisions previously applying to a major development under Pt 3A (the then equivalent provision to s 93 of the EPA Act applying to approvals under Pt 3A was s 75V which required that certain subsequent approvals “… cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part”) was considered by the NSW Court of Appeal in Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174 (Ulan). One of the issues argued in this case was whether s 75V of the EPA Act (as it then was relating to an approval granted for a coal mine under the former Pt 3A of the EPA Act) overrode provisions in s 62(1)(c) of the Mining Act 1992 (NSW), preventing the grant of a mining lease over land on which there is any improvement without the consent of the land owner.

Bell JA (with whom Hodgson JA and Tobias JA agreed) noted the argument (in relation to the effect of s 75V) extended to the integrated development provisions in s 93 with regard to the power of an approval authority to refuse a subsequent approval where a development consent for integrated development applied. Bell JA held at paragraph [77] as follows: “77 The area of claimed contrariety between s 62(1) of the Mining Act and the EPA Act extends beyond projects having approval under Pt 3A and includes integrated development under Div 5 of Pt 4 of the EPA Act. Integrated development is development that requires development consent and one or more of the approvals set out in s 91(1) which, as noted, includes the grant of a mining lease under ss 63 and 64 of the Mining Act. Section 91A(5)(b) provides, in a case in which the approval body fails to inform the consent authority whether or not it will grant the approval, or of the general terms of its approval, that the approval body ‘cannot refuse to grant approval’. Section 93(1) of the EPA Act provides that, despite any other Act or law, an approval body must in respect of integrated development for which development consent has been granted, ‘grant approval.’” Bell JA then held at paragraph [84] as follows: “84 Section 62(1) provides that in the circumstances stated there is no power to grant a mining lease. This is not an aspect of the exercise of the Minister’s discretionary power to grant or to refuse an application for a lease that is conferred by ss 63 and 64. There is no conflict between the provision in s 75V(1)(c) of the EPA Act that a mining lease cannot be refused in the stated circumstances and the provisions of s 62(1) because, where there is no power to give an ‘authorisation’, no question of refusing the authorisation arises. Sections 62(1) of the Mining Act and s 75V of the EPA Act can operate sensibly together.” In additional comments, Hodgson JA (with whom Tobias JA agreed) held at paragraphs [12]–[13] and [17] as follows: “12 As regards the provision to the effect that what cannot be refused is ‘a mining lease under the Mining Act’, it follows, in my

opinion, that what cannot be refused must be something provided for by the Mining Act. There is a real question whether a lease that extends to land to which, according to the Mining Act, a lease under the Mining Act cannot extend, can properly be called a lease under the Mining Act. 13 Division 2 of Pt 5 of the Mining Act (headed ‘Restrictions on grant of mining leases’) sets out various categories of land over which a mining lease ‘may not be granted’. A mining lease, if it extended to land in those categories, would not be one authorised by the Mining Act, at least unless the Mining Act is treated as having been amended by the EPA Act so that it did authorise the grant of such leases. If the EPA Act had provided that what could not be refused was ‘a mining lease under the Mining Act as amended by this Act’, that wording would have supported the notion that the Mining Act now did authorise something it previously did not authorise. However, in the absence of words to that effect, in my opinion the words ‘a mining lease under the Mining Act’ are not apt to refer to a lease of land over which, according to the Mining Act, a mining lease may not be granted. … 17 However, in my opinion: (1) There is relevantly a refusal within s 75V only if there is an application which otherwise was capable of being granted; (2) A lease not authorised by the Mining Act is not ‘a mining lease under the Mining Act’ within s 75V; and (3) Section 75V does not amend the Mining Act so as to authorise leases contrary to Div 2 of Pt 5 (although it may be considered as amending the Mining Act so as to do away in certain circumstances with the procedural requirements of Schedule 1).” Conclusions The following conclusions may be drawn from Ulan:

• Where a development consent for integrated development has been granted, s 93(1) of the EPA Act requires that an approval body must grant approval for a subsequent application of the type listed in s 91(1). • However, this requirement only restricts the approval body in relation to the exercise of its discretion to grant or refuse the subsequent application, where there is properly an application under the legislation applying to the subsequent application which is capable of being granted. • Hence, s 93(1) of the EPA Act does not operate to override any procedural requirements being preconditions to the existence of the subsequent application capable of being approved under the legislation applying to it.

¶40-120 Rights of review and appeal A development consent for integrated development has the same rights for a merit appeal by the applicant under s 97 of the EPA Act as applying to a standard DA (see ¶37-100). However, there is no right of internal review under s 82A for a DA for integrated development (s 82A(1)(c)). Where the relevant legislation under which one of the subsequent applications listed in s 91(1) provides a right of objection, appeal or review of an approval body’s determination in relation to a subsequent application, that right is unaffected but the appellate body is bound by s 93 of the EPA Act to grant approval or not impose conditions inconsistent with the development consent for integrated development (s 93B). It is noted that an appeal under s 97 is against the consent authority and that remains the case even where the refusal or the conditions of approval objected to are derived from the advice or general terms of approval of an approved authority. No doubt if the consent authority holds a different view to the approval authority, to defend the appeal, the approval authority may need to seek leave to appear in any such appeal.

¶40-130 Third party rights of review and appeal

A development consent for integrated development has the same provisions for third party rights of merit review as a development consent for a standard DA (see ¶37-110). If it is also designated development, the same third party rights of merit review as designated development apply.

DEVELOPMENT APPLICATIONS REQUIRING A SPECIES IMPACT STATEMENT Editorial information

In the case of development applications (DAs) that require a Species Impact Statement (SIS), the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development or Crown development). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be

regional development or any combination of these.

¶41-010 Applicant No special or additional requirements.

¶41-020 Subject matter of a development application The trigger for the requirement for a DA to be accompanied by an SIS in s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides: “78A Application … (8) A development application must be accompanied by: (a) … (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats — a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. Note. Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.” Further s 5A of the EPA Act provides:

“5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. (3) In this section: assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994. key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.”

Section 5C of the EPA Act extends the operation of the provisions relating to critical habitat, threatened species, populations or ecological communities or their habitats to critical habitat of fish or marine species or threatened species, populations or ecological communities of fish or marine vegetation under the Fisheries Management Act 1994 (NSW) (FM Act). For ease of reference, the discussion will refer to matters protected under the Threatened Species Conservation Act 1995 (NSW) (TSC Act), but these references apply equally to matters protected under the FM Act. Section 5D provides that references in the EPA Act to threatened species, populations and ecological communities do not include a reference to a vulnerable ecological community under the TSC Act. The meaning of “threatened species” is the same in both the EPA Act and the TSC Act. The TSC Act defines threatened species in s 4 as including species in Pt 1 (endangered species) or Pt 4 (species presumed extinct) of Sch 1, Pt 1 (critically endangered species) of Sch 1A or Pt 1 (vulnerable species) of Sch 2. Thus, the definition of endangered species in the EPA Act includes vulnerable species under the TSC Act. However, s 105A of the EPA Act provides that an amendment to the list of vulnerable species does not apply to a DA made before the amendment was made, unless the DA is not determined within 12 months from being lodged. But for endangered species other than vulnerable species, the question of whether an SIS is required for a DA is determined by the law applicable at the date of determination of the DA, not the date of lodgment (see Sofi v Wollondilly Shire Council (1975) 31 LGRA 416). Hence, if new species populations or communities are added to the list of threatened species, populations or ecological communities after the date of making a DA, but prior to its determination (other than if they are vulnerable species), an SIS may be required where none previously was required, or the SIS prepared may need to be augmented to assess the additions to the listings. If this is not done, then any resulting consent may be unlawful. The requirement for a DA to be accompanied by an SIS arises in three

circumstances: (1) The DA relates to land that is declared to be “critical habitat” under the TSC Act. Thus, it is necessary to establish whether the land to which a DA relates is “critical habitat” as declared under the TSC Act. (2) The DA is for development that “is likely to significantly affect” threatened species, populations or ecological communities. This requires an assessment of the relationship between the development proposed and the threatened species, populations or ecological communities to ascertain whether it will be one that is “likely to significantly affect” them. (3) The DA is for development that “is likely to significantly affect” the habitat of threatened species, populations or ecological communities. This requires an assessment of the relationship between the development proposed and the relevant habitat (not just the species, populations and communities themselves and hence, may apply to areas where the actual species, etc, have not been actually located) to ascertain whether it will be one that is “likely to significantly affect” the habitat in question. The first circumstance where the requirement for an SIS may be triggered relating to “critical habitat” requires a matching of the land to which a DA relates to land which has been declared critical habitat. If any of the land to which the DA relates is declared critical habitat, then the requirement for an SIS is automatically triggered. It is immaterial to enquire further about the nature and extent of the impact of the development to decide whether an SIS is required. The Office of Environment & Heritage (OEH) is required to keep a register of critical habitat under the TSC Act and maps thereof. Copies of extracts are to be made available to the public (s 55 of TSC Act). The register is required to be open for public inspection and consent authorities are required to have regard to this register (s 5B of EPA Act).

The second and third circumstances where the requirement for an SIS may be triggered both require an assessment of whether the development proposed is likely to significantly affect either the species, etc, or their habitat. The meaning of the words “likely” and “significantly affect” are also components of the test of whether an Environmental Impact Statement (EIS) is required under s 112 of the EPA Act, and the meaning of those terms is discussed in Chapter ¶71 entitled “Environmental Impact Assessment” (EIA). The discussion there is equally applicable to the meaning of “likely to significantly affect” in s 79A(8) of the EPA Act. In undertaking the assessment required to determine whether a development is likely to significantly affect threatened species, populations or ecological communities and their habitats, s 5A of the EPA Act plays an important role. Section 5A(1) provides that, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities and their habitat, the factors listed in s 5A(2) are required to be considered, plus any assessment guidelines issued and in force under s 94A of the TSC Act or s 220ZZA of the FM Act. Thus, an applicant and a consent authority are required to take into account s 5A in making a decision on whether there is likely to be a significant effect or not. The matters that are required to be taken into account under s 5A are twofold: (1) any assessment guidelines issued (such guidelines were issued under the TSC Act in August 2007),1 and (2) the list of factors contained in s 5A(2), referred to commonly as the 7-Part Test. It will be noted that this requirement is cumulative, and an applicant and consent authority are required to consider both the assessment guidelines and the 7-Part Test in order to form a conclusion whether a development is likely to significantly affect threatened species, populations or ecological communities or their habitats. Footnotes

Footnotes 1

NSW Government, Department of Environment and Climate Change NSW (DECC), August 2007, Threatened Species Assessment Guidelines: The Assessment of Significance, Sydney, ISBN 978 1 74122 551 8; DECC 2007/393 and NSW Department of Primary Industries (NSW DPI), February 2008, Threatened Species Assessment Guidelines: The Assessment of Significance, Sydney, ISBN 978 0 7347 18976.

¶41-030 Timbarra Protection Coalition Inc v Ross Mining NL & Ors The question of whether a proposed development is likely to significantly affect threatened species, populations or ecological communities or their habitat and hence, the DA is required to be accompanied by an SIS, has been held to be a jurisdictional fact by the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 (Timbarra). The principles in this case as to what constitutes a jurisdictional fact were discussed in the earlier chapter on interpreting a Local Environmental Plan (see Chapters ¶20 and ¶21) in relation to whether the characterisation of a development for the purpose of establishing permissibility is a jurisdictional fact. As such, they will not be repeated here. However, the conclusions of Spigelman CJ (with whom Mason P and Meagher JA agreed) in relation to the requirement for an SIS are as follows in paragraphs [34]–[37], [75]–[76], [81], [94]–[95] and [106]–[108]: “34. The issue on this appeal is whether or not the reference in s77(3)(d1) to ‘development … that … is likely to significantly affect threatened species, populations or ecological communities, or their habitats …’ is a jurisdictional fact in the sense that if, in truth, that is the situation, no valid development application can be made without an accompanying SIS.

35 His Honour found that the determination of ‘significant effect on threatened species’ was not such a jurisdictional fact. Rather, it was a matter upon which the Council could err within its jurisdiction. Accordingly, evidence on the subject was not admissible. 36 If the fact in issue in the present case is a jurisdictional fact, then evidence of the existence or non-existence of that fact was admissible in the Land and Environment Court. (See e.g. R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1954) 82 CLR 54, 91– 92; R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178, 183–184; DMW v CGW (1982–83) 151 CLR 491, 510). Accordingly, if Talbot J erred in the construction of s77(3)(d1), his rejection of relevant evidence means that this appeal must be allowed and the matter remitted to the Land and Environment Court. 37 The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (‘objectivity’) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (‘essentiality’). (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]–[93]). … 75 The significance of the process of public consultation was emphasised in this Court’s decision in Helman2 and the authorities relied on therein, to which I will refer in detail below. The same approach had been taken as long ago as R v Arkwright [1848] 12 QB 962; 116 ER 1130. The obverse position arose in Australian Heritage Commission v Mount Isa Mines supra 305– 306, where a feature of the statutory scheme which was said to indicate that the primary decision maker could conclusively determine whether a place should be registered, was that the decision could only be made after a process of public

consultation. 76 It can readily be seen that an SIS, when required, plays a critical role in the quality of the decision making process, by ensuring that detailed information is available to primary decision makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare an SIS, to be both objectively ascertained and essential. … 81 The purpose of an SIS in the legislative scheme strongly suggests that the occasion for its creation is a jurisdictional fact. The consent authority’s opinion as to the existence of that occasion is not determinative, because an SIS is not only directed to informing a consent authority. It is also directed at informing both those who may make submissions and the Director General of National Parks and Wildlife. … 94 Taking all these factors into account, I have concluded that the decision as to whether or not an SIS is required plays such a significant role in the legislative scheme that it is appropriate to describe it as an ‘essential condition’ (Craig v South Australia (1994–95) 184 CLR 183, 179) or ‘essential preliminary’ (Colonial Bank for Australasia v Willan supra 443; Ex parte Toohey; Re Butler supra 283; Minahan v Baldock supra 11). It was accordingly a jurisdictional fact which the Land and Environment Court was obliged to decide for itself. 95 I am fortified in my conclusion on the construction of s77(3) (d1) by the decision of this Court on the parallel preceding regime. The judgment in Helman v Byron Shire Council supra was delivered on 4 August 1995. The Threatened Species Conservation Bill (No 2) was introduced into the NSW Parliament on 7 December 1995. There was plenty of time for those responsible for its drafting to adapt to the reasoning of this Court in Helman.

… 106 The legislation under consideration in Helman is not relevantly distinguishable from that now under consideration. The precise point argued before us was not taken before the Court in Helman, because the Council did have a fauna impact statement. Nevertheless, the reasoning of the Court in Helman clearly indicates that an SIS, when required, is an ‘essential preliminary’ or ‘essential condition’ to a valid decision making process. 107 The reasons given by the Court in Helman for so treating such a statement — specifically the references to ‘condition precedent’ — strongly suggest that a consent authority cannot conclusively determine this issue. The reasoning of ‘condition precedent’ and ‘condition of validity’ in Helman was plainly available to the drafter of the 1995 Act, who employed the same terminology of ‘likely to significantly affect’. That reasoning was a clear indication that this formulation involved a factual reference which must exist in fact, and that the opinion of a consent authority would not be determinative of that issue. 108 In my opinion, the reasoning in Helman is inconsistent with a construction of s77(3)(d1) that the opinion of a consent authority as to the need for an SIS is determinative. On any view, the conclusion that the circumstances in which an SIS was required constituted a jurisdictional fact, was so likely after Helman, as to call for clear legislative overruling in the new legislation, if that was the intention. As I have said, my conclusion that s77(3)(d1) involves a jurisdictional fact, is reinforced by the adoption in the 1995 Act of the formulation considered in Helman.” Hence, in Timbarra, it was held that the question of whether a development is likely to significantly affect threatened species, populations or ecological communities or their habitat is a jurisdictional fact. As such, in deciding whether an SIS is required to accompany a DA, the initial assessment is made by the applicant and then by the consent authority. As the decision is a jurisdictional fact, the decision of the consent authority, as to whether the DA is for development that

is likely to significantly affect threatened species, populations or ecological communities or their habitat, is reviewable by the courts who are entitled to admit evidence on the question of the nature of the effect, and form their own conclusion in place of that formed by the consent authority. Further, where a development consent is granted in relation to development found by the courts to be likely to significantly affect threatened species, populations or ecological communities or their habitat, but no SIS was provided and processed in accordance with the EPA Act, such development consent is capable of being found to be invalid. Footnotes 2

CCH comment: Helman is the abbreviation for Helman v Byron Shire Council (1995) 87 LGERA 349

¶41-040 Smyth v Nambucca Shire Council In Smyth v Nambucca Shire Council [1999] NSWLEC 226 (Smyth), Lloyd J in the Land and Environment Court of NSW (NSWLEC) heard an appeal on a question of law from a decision of a Commissioner in the Court. In this case, the Commissioner did not answer the question of whether the development was likely to significantly affect threatened species, populations or ecological communities or their habitat. Further, the Commissioner held that the question of ameliorative measures, or measures to mitigate any adverse effect, needs to be addressed in an SIS and not in the application of the 7Part Test in s 5A of the EPA Act to determine whether an SIS was required. Lloyd J held at paragraphs [10] and [12] as follows: “10. The parties agreed that for the purpose of paragraph (d1) of subsection 77(3) of the EP&A Act, the land to be subdivided was not, neither was it part of, critical habitat. Thus, the question that the Commissioner had to determine was whether the proposed development was likely to significantly affect threatened species,

populations or ecological communities, or their habitats. The Commissioner did not answer this question. I accept the submission of Mr Davison that this question can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of that development. That this must be so is clear from the reference to whether it is the ‘development’ which is likely to significantly affect threatened species, populations or ecological communities, or their habitats. It is not a question of whether the land contains threatened species, populations or ecological communities, or their habitats. The only reference to the land is whether the land is, or is part of, critical habitat. As I have said, the parties accepted that the land is not, neither is part of, critical habitat. The focus of the provision is on the development, which necessarily includes any ameliorative measures which are proposed as part of such development. … 12. The Commissioner found that the proposed development in the present case included a number of specified ameliorative measures. The Commissioner did not go on to make any finding as to whether, given the proposed development and the specified ameliorative measures, there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitat. As noted in paragraph 8 above, the Commissioner decided, in effect, that the answer to this question must be resolved by reference to a species impact statement. The Commissioner’s task, however, was to determine for himself whether there was likely to be a significant effect by dint of the proposed development and its ameliorative measures. Only if the answer to that determination is in the affirmative does a species impact statement become necessary.” Thus, Smyth makes it clear that the consent authority is required to make a determination whether there is likely to be a significant effect on threatened species, populations or ecological communities and their habitat as a result of the proposed development and the ameliorative measures proposed by the applicant. Only if a conclusion

is made that there is a significant effect, is an SIS required. This decision accords with the similar provisions in s 112 of the EPA Act requiring an EIS for an activity which is likely to significantly affect the environment and the decision of Stein J in Drummoyne Municipal Council v Maritime Services Limited (1991) 72 LGRA 186, although Smyth does not refer to the case law under Pt 5 of the EPA Act regarding EIA. One of the triggers for the requirement for a DA to be accompanied by an SIS is if the development is likely to significantly affect threatened species, populations or ecological communities. The listing of threatened ecological communities is undertaken by the Scientific Committee established under the TSC Act. The determination of the question of significant effect in the case of ecological communities, as opposed to threatened species or populations and to a certain extent with their habitat, is made more difficult given the vagaries in identifying whether land falls within the listed description of a threatened ecological community.

¶41-050 VAW (Kurri Kurri) Pty Ltd v Scientific Committee The difficulties in the precision of identifying a threatened ecological community were discussed in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297 (VAW) where the NSW Court of Appeal heard a challenge to the validity of a determination by the Scientific Committee to the listing of an endangered ecological community (EEC). While, in VAW, the challenge to validity failed, the NSW Court of Appeal decision highlights some of the difficulties in identifying an ecological community.

¶41-060 Hornsby Shire Council v Vitone Developments Pty Ltd This issue was further considered by McClellan CJ in the NSWLEC in Hornsby Shire Council v Vitone Developments Pty Ltd [2003] NSWLEC 272. This case was a challenge to the validity of a development consent for residential subdivision at Cherrybrook on the

grounds that the DA was likely to significantly affect an EEC, the Blue Gum High Forest. The listing of the ecological community included a description of its structural form, the soil type to which it was confined, the general location and a list of characteristic assemblage of vascular plants in the community (qualified by a notation that not all of these species may be present at any one time, and may vary according to the disturbance history and fire frequency of the site). The respondent countered by questioning whether the EEC existed on the land. Competing ecological evidence was submitted to the Court. In the proceedings, the parties were in dispute whether the site survey should be undertaken by use of quadrant sampling or a meandering transect. In the current instance, as the whole site had been disturbed, it was not possible to avoid disturbed areas and only survey undisturbed areas. McClellan CJ held at paragraphs [83]–[84] as follows: “83 In my opinion Robertson’s approach in relation to methodology is to be preferred. The reality is that the whole of this site is in various ways disturbed and it is not possible to avoid disturbed areas and survey only undisturbed areas. Accordingly the usual reservation on the appropriateness of the quadrat method suggested by the National Parks & Wildlife Service are not relevant. The quadrat method enables some objective assessments to be undertaken from which it can be ascertained whether the individual species are reflected in sufficient numbers in identified areas of the site to enable an informed judgment to be made as to whether the community exists. 84 I accept Robertson’s evidence that the meandering transect method does not provide information as to species abundance or distribution and that this information is important when seeking to identify the existence of a community. In order to determine whether there is an ‘assemblage’ of species, it seems to me necessary to have some understanding of the manner in which species are assembled, their location on the site and their abundance. The determination of the existence of a community will be better informed by Robertson’s method, provided the areas

intensively examined are appropriately chosen. I am satisfied that Robertson’s quadrats were appropriate.” On the substantive issue of whether an EEC was present on the land, McClellan CJ held at paragraphs [91]–[93] and [95]–[99] as follows: “91 The Final Determination of the Scientific Committee as expressed gives rise to difficulties. The determination does not make plain whether it is intended to apply only to communities which presently exist as identifiable communities, the elements of which can be observed, or whether it applies to areas of land where the potential for a community exists if either passive or active restoration is undertaken. 92 Some indication of the intention of the Committee is available from para 4 of the Determination. From that paragraph it is clear that the Committee had in mind that a relevant community might exist although not all of the characteristic species were found on the site. The Committee contemplated that a species may become established at a later time, the necessary seed being present in the soil. The Committee also recognised that disturbance, possibly by fire or perhaps by mowing or other transitory impact may have the consequence that at the time of any particular survey it may not be possible to identify sufficient individual specimens to ordinarily form the conclusion that a community existed. Having identified the impacts which have caused the disturbance it may be possible to conclude that the relevant community exists although its presence may be masked by the disturbance which has occurred. 93 I do not think that the determination should be applied so that a community can be identified irrespective of the extent of active regeneration which may be necessary to bring it to life. For a community to exist, enough species must be present on site to allow them to function as an interdependent group. However, the extent to which active regeneration could be accommodated will have to be considered in the circumstances of each individual case. …

95 The question which must be determined is whether the proposed subdivision with its associated road and drainage works is likely to significantly affect the threatened ecological community Blue Gum High Forest. No other community is said by the council to require consideration. 96 The relevant community must exist before it could be said that it would be significantly affected by the proposed work. In this respect the parties agree that if it exists today it would have existed in 1998. However, the obligation to obtain a species impact statement does not exist in relation to a community which is merely prospective. 97 In this case only about half of the number of individual species from the characteristic assemblage of species comprising the community have been identified on the site. The site is also known to have been used for many years in a manner hostile to the maintenance of the community. I accept the evidence of Robertson that the site lacks the necessary representative structure, with the understorey largely missing, which would be required before it could be concluded that an ecological community exists. 98 With respect to the impact of mowing and the consequences for this site if mowing was to cease, Robertson’s opinion, which I accept, was that if mowing did cease regrowth would occur. However, that regrowth would be dominated by exotic species including various vines, creepers and other weeds. This would follow from the fact that the site has been disturbed and foreign soils introduced. In his opinion the resilience of the site was very low because of the absence of understorey, the fact that the understorey structure had been significantly altered (ie the shrub layer is largely missing), the soils have been highly modified and exotic plant species were dominant across the site. 99 I have no doubt that a community of Blue Gum High Forest was once on the site, although Robertson suggests that it was likely to have been in a confined area and not over the whole site. However, the evidence of disturbance, introduction of fill, lack of

many typical species and presence of exotic species on the site in my opinion precludes the conclusion that a Blue Gum High Forest ecological community presently exists on the site so that the approved subdivision could significantly affect it.” Thus, McClellan CJ held that at the date of the DA determination the EEC did not exist on the site and hence, no question of significant effect arose. Conclusions The following conclusions may be derived from Vitone: • The listing of an EEC needs to be construed to establish whether the community might exist, although not all the characteristic species are found on the site. • An EEC should not be identified irrespective of the extent of active regeneration needed for the community to recover. In assessing the likelihood of recovery, regard should be had to the resilience of the site, including whether the community structure exists, whether soils have been modified, and the extent of exotic species. An SIS is not required in relation to a DA for development in a biodiversity-compliant development (Pt 1 of Sch 1 of Environmental Planning and Assessment Regulation 2000 (EPA Regulation), cl 1(2) (5A)). The process of biodiversity certification is provided for in Pt 7AA (s 126G–126 ZZC of the TSC Act), inserted in the TSC Act by the Threatened Species Conservation Amendment (Biodiversity Certification) Act 2010 No 39 (NSW). Biodiversity certification is achieved via an application to the Minister administering the TSC Act (s 126J of TSC Act) and requires the existence of a biodiversity certification strategy (s 126K of TSC Act). Certification may only be granted by the Minister after a public exhibition process (s 126N of TSC Act) and if it “imposes or maintains biodiversity values” (s 106O of TSC Act). The effect of biodiversity certification on development subject to Pt 4 of the EPA Act is that the DA is taken not to be likely to significantly affect threatened species, populations or ecological communities or their habitat (and hence no SIS is required), nor is the

consent authority required to take into consideration the likely impacts on biodiversity values (despite the requirement in s 79C and s 5A of the EPA Act). (Section 121I(2) and (3) of the TSC Act.)

¶41-070 Where is a development application lodged? The lodging requirements for a DA which requires an SIS are not different from what otherwise would apply to a standard DA (see Chapter ¶37 at ¶37-030).

¶41-080 Information required A DA which requires an SIS is required to include the same information required for a standard DA (see ¶37-040). The following additional requirements apply: • The DA needs to be accompanied by an SIS prepared in accordance with Div 2 of Pt 6 (namely s 109–133) of the TSC Act (s 78A(8)(b) of EPA Act and Pt 1 of Sch 1 of the EPA Regulation, clause 1(2)(f)). • The form of an SIS is regulated by s 109 of the TSC Act which provides as follows: “109 Form of species impact statements (1) A species impact statement must be in writing. (2) A species impact statement must be signed by the principal author of the statement and by: (a) the applicant for the licence, or (b) if the species impact statement is prepared for the purposes of the Planning Act, the applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires), or (c) …

110 Content of species impact statement (1) A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section. (2) A species impact statement must include the following information as to threatened species and populations: (a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action, (b) an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action, (c) for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it, (d) an estimate of the local and regional abundance of those species or populations, (e) an assessment of whether those species or populations are adequately represented in conservation reserves (or other similar protected areas) in the region, (e1) an assessment of whether any of those species or populations is at the limit of its known distribution, (f) a full description of the type, location, size and

condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region, (g) a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region, (h) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development, (i) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures, (j) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population. (3) A species impact statement must include the following information as to ecological communities: (a) a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,

(b) for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it, (b1) an assessment of whether those ecological communities are adequately represented in conservation reserves (or other similar protected areas) in the region, (b2) an assessment of whether any of those ecological communities is at the limit of its known distribution, (c) a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region, (d) a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local populations in the cumulative effect in the region, (e) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development, (f) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,

(g) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community. (4) A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement. (5) The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the National Parks and Wildlife Service, which information that Service is by this subsection authorised and required to provide.” • Where an applicant for a DA is preparing an SIS, the applicant is required to consult with the Director-General of National Parks and Wildlife. Section 111(1) of the TSC Act requires that “… the applicant for development consent … must request from the Director-General and must, in preparing the species impact statement, comply with any requirements notified to the person by the Director-General concerning the form and content of the statement”. The Director-General of National Parks and Wildlife is required to notify any requirements within 28 days (s 111(2) of the TSC Act) and may modify or limit the matters outlined in s 110 of the TSC Act to be included in a particular SIS (s 111(3) of the TSC Act). This provision for obtaining requirements in the preparation of an SIS is similar to that applying in the preparation of an EIS under cl 73 of the EPA Regulation.

• The Director-General of National Parks and Wildlife may make arrangements for the accreditation of suitably qualified and experienced persons to prepare an SIS under s 113 of the TSC Act, although it is not a requirement that an SIS only be prepared by an accredited person. It is noted that, for threatened species, etc, for fish and marine vegetation, there are comparable provisions in Pt 7A of the FM Act. Issues associated with the status of the Director-General’s requirements and the adequacy of an SIS are common to those relating to an EIS and are discussed in Chapter ¶71 regarding EIA.

¶41-090 Leatch v National Parks and Wildlife Service and Shoalhaven City Council In Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 (Leatch), Stein J in the NSWLEC heard a merit appeal in relation to the grant of a general licence under s 120 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) in relation to the North Nowra Link Road. The right of merit appeal arose under the precursor of the TSC Act, the Endangered Fauna (Interim Protection) Act 1991 (NSW) (Endangered Fauna IP Act), which required the preparation of Fauna Impact Statements (FISs) (the precursor of an SIS). In the appeal, the applicant submitted that the FIS was invalid or legally indignant. In relation to whether a FIS was required to be as rigorous as an EIS under the EPA Act, Stein J held at p 278–279 as follows: “In my opinion the same tests of adequacy developed in relation to environmental impact statements should apply to fauna impact statements. Nothing in the subject matter, scope and purpose of the National Parks and Wildlife Act, particularly the amendments inserted by the Endangered Fauna (Interim Protection) Act, lead to a contrary conclusion. Indeed, the reverse is the case. This means that the tests laid down in the authorities, in particular Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402, are relevant.

… [p 279] … The issue of the jurisdiction of the Court in a class 1 appeal to consider the validity of an environmental impact statement was exhaustively examined by the Chief Judge of the Court, Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 28–30. the decision of the Court of Appeal did not affect her Honour’s judgment on the issue. I agree with Pearlman J’s analysis of the legal situation and her conclusion: ‘but what is in issue in this case is not a question of relief for breach, but a question of whether or not, exercising the functions of a consent authority, the Court would grant consent to the development application. In pursuing that issue, one of the questions for determination is whether or not there is a valid environmental impact statement on which a grant of consent by the Court is [sic.] so exercising its functions can be founded.’” Given the directly comparable role and function of an FIS to an SIS under its successor legislation, Leatch provides adequate authority to apply the principles relating to adequacy of an EIS to the question of the adequacy of an SIS.

¶41-100 Interaction with consent authority A DA which requires an SIS has no additional or special requirements for interaction with the consent authority than would otherwise apply.

¶41-110 Public notification As indicated in the discussion regarding advertised development in Chapter ¶39, a DA which requires an SIS is declared to be advertised development by cl 5(1)(c) of the EPA Regulation and additionally, is declared to be “other advertised development” by cl 5(2) of the EPA Regulation. Hence, it requires to be publicly notified under cl 86–91 of

the EPA Regulation with 30 days’ exhibition and submission period (cl 89(3) of EPA Regulation).

¶41-120 Interaction with other public authorities As indicated previously, an applicant for a DA which requires an SIS is required to consult with the Director-General of National Parks and Wildlife and comply with any requirements of the Director-General (s 111(1) of the TSC Act as applied by s 78A(8)(b) of the EPA Act). Where a DA requires an SIS, the consent authority (other than where a Minister is the consent authority) cannot grant development consent without the concurrence of the Director-General of OEH (s 79B(3) of EPA Act). Concurrence need not be sought if the consent authority proposes to refuse the DA (s 79B(1) of EPA Act). If a Minister is the consent authority, that Minister is only required to consult the Minister administering the TSC Act before granting development consent (s 79B(3) of EPA Act) but reasons must be given for non-acceptance of the Director-General’s recommendations (s 79B(6) and (7) of EPA Act). The Minister administering the TSC Act may intervene and perform the duty of the Director-General in relation to any DA requiring concurrence in relation to threatened species, even if the DirectorGeneral has already formulated recommendations, but provided these not been communicated to the consent authority (s 79B(4) of EPA Act). In determining whether or not to grant concurrence, the DirectorGeneral is required to take the following matters into consideration under s 79B(5) of the EPA Act: “(a) any species impact statement that accompanied the development application, (b) any assessment report prepared by the consent authority, (c) any submissions received concerning the development application, (d) any relevant recovery plan or threat abatement plan, (e) whether the development proposed is likely to reduce the

long-term viability of the species, population or ecological community in the region, (f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction, (g) the principles of ecologically sustainable development, (h) the likely social and economic consequences of granting or of not granting concurrence.” The Director-General of OEH is empowered to grant concurrence conditionally or subject to conditions, or refuse concurrence (s 79B(8)). In deciding whether or not to grant concurrence, the DirectorGeneral of OEH may grant concurrence on the applicant agreeing to undertake certain voluntary action in the nature of offsets outlined in s 79B(8B) of the EPA. The consent authority is bound to include within any development consent granted the conditions of concurrence of the Director-General of OEH (s 79B(9)) and any consent granted without concurrence is voidable (s 79B(10)). The concurrence arrangements do not prevent a consent authority from refusing to grant consent, even if the DirectorGeneral of OEH has granted concurrence.

¶41-130 Consideration and determination The same provisions relating to consideration and determination apply to a DA which requires an SIS as would otherwise apply, with the additional requirement that the matters listed in s 5A of the EPA Act (the 7-Part Test) also apply as heads of consideration under s 79C (see s 5A of EPA Act). If the development has biodiversity certification under Pt 7AA of the TSC Act, the consent authority is not required to consider the impact of the development on biodiversity values (s 121I(3) of TSC Act).

¶41-140 Effects of a development consent The same provisions relating to the effect of a development consent

for a DA which required an SIS would otherwise apply with the additional provision that it is unnecessary to obtain a general licence under s 120 of the NPW Act (or hence under s 131, s 132, s 132A or s 132C) or a licence under Pt 6 of the TSC Act to: • harm an animal that is a threatened species or part of an endangered population or an EEC • damage critical habitat, or • damage the habitat of a threatened species, an endangered population or an EEC provided the action in question “was essential for the carrying out of … development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 …” (s 118A, s 118C and s 118D of the NPW Act). Hence, the implementation of a valid development consent does not require licences under the NPW Act or the TSC Act to harm or damage threatened species, etc, or their habitat or critical habitat. It is noted that this exemption from the need for licensing applies to all development consents within the meaning of the EPA Act, including development consents which predated the introduction of the TSC Act (Act No 101 of 1995, commencing on 1 Jan 1996), or its predecessor, the Endangered Fauna IP Act (commencing on 17 December 1991). Further, this exemption applies in relation to new species, etc, or critical habitat listed or declared under the TSC Act subsequent to the grant of the development consent. The status of development consents granted under the former Pt 12A of the Local Government Act 1919 (NSW) will be discussed in Chapter ¶61 regarding development consents.

¶41-150 Rights of review and appeal A consent for DA which requires an SIS has the same provisions for review and appeal as would otherwise apply to a standard DA (see ¶37-100). However, if a right of review under s 82A is available, the

council as consent authority is still bound by the concurrence conditions or refusal of the Director-General of OEH (s 79B(9)–(10) of EPA Act) and hence, if these are the matters relating to which the applicant is dissatisfied with the council’s determination, then the review process under s 82A has little utility. On merit appeal to the NSWLEC, the Court has the power to alter any concurrence conditions or refusal from the Director-General of OEH (see s 39(6) of the Land and Environment Court Act 1979 (NSW)).

¶41-160 Third party rights of review A development consent for a DA that requires an SIS has the same provisions for third party rights of merit appeal as would otherwise apply in the case of a standard DA (see ¶37-110) or a DA for designated development.

DEVELOPMENT APPLICATIONS REQUIRING CONCURRENCE OR CONSULTATION Editorial information

In the case of development applications (DAs) that require consultation or concurrence, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa.

2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these.

¶42-010 Applicant No special or additional requirements.

¶42-020 Subject matter of development application The provisions relating to standard DAs apply. In addition, a DA must be for development which requires concurrence or consultation. An Environmental Planning Instrument (EPI) is authorised by s 30(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to include a requirement in relation to development permissible with consent, a provision that the consent authority shall not determine a DA except with the concurrence of a Minister of public authority specified in the EPI. Further, an EPI which includes a requirement for concurrence must state the matters which shall be taken into consideration in deciding whether concurrence should be granted (s 30(3) of EPA Act). Thus, the key features in relation to concurrence are as follows: • The requirement for concurrence must be provided for in an EPI (s

30(2) of EPA Act). • Concurrence can only be exercised by a Minister or a public authority (note: the definition of a public authority is found in s 4(1) of the EPA Act). Concurrence powers cannot be granted to a person who is neither a Minister nor a public authority, as defined. • The EPI which provides for a concurrence power must specify the matters to be taken into consideration by the concurrence authority in deciding whether or not to grant concurrence (s 30(3) of EPA Act). The power to require consultation must also be provided in an EPI (s 79B(1) of EPA Act), however, it is not confined to a Minister or public authority, but can be any person as specified in an EPI. If the Minister for Planning is the consent authority for a DA and a concurrence requirement applies to the Minister, the Minister is only required to consult the person specified in the EPI as a concurrence authority (s 79B(2) of EPA Act). Thus, where the Minister for Planning is the consent authority, a concurrence requirement is converted to a requirement to consult only (with the difference being that the Minister is not bound by the decision of the concurrence body). An EPI must not include a provision requiring consultation or concurrence with the Director-General of the Office of Environment and Heritage in relation to development which may affect a vulnerable ecological community (s 26(1B) of EPA Act).

¶42-030 Where is a development application lodged? A DA for development requiring concurrence or consultation is lodged in accordance with the same requirements as would otherwise apply.

¶42-040 Information required A DA for development requiring concurrence or consultation is required to include the same information as would otherwise be required. However, where a DA requires concurrence or consultation,

it would be prudent for an applicant to specifically address the heads of consideration of any concurrence or the subject matter of any consultation. Further, for a DA which requires concurrence, an additional concurrence fee is required in addition to other DA fees required (see cl 252A of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation)).

¶42-050 Interaction with consent authority A DA which requires concurrence or consultation has no additional requirements for the applicant to interact with the consent authority than would otherwise apply.

¶42-060 Public notification A DA which requires concurrence or consultation has no additional requirements for public notification than would otherwise apply.

¶42-070 Interaction with other public authorities A DA for development which requires concurrence or consultation has the following requirements in relation to interaction between the consent authority and the concurrence or consultation body. For a concurrence requirement, the following provisions apply: • After receipt of a DA which requires concurrence, the consent authority is required, within 14 days of lodgment, to forward the DA and accompanying documents to the concurrence authority, notifying the concurrence authority of why concurrence is required and notifying the date of receipt of the DA and the dates of any period of public exhibition (cl 59 of EPA Regulation). • A concurrence authority may request additional information from the consent authority which must then request the applicant to provide the information sought within the period required by the concurrence authority. The applicant may provide the information

sought, or decline to do so, or do nothing (in which case the applicant will be taken to have declined) (cl 60 of EPA Regulation). • Where a DA requires public advertising, the consent authority is required to provide the concurrence authority with copies of all submissions received (cl 61 of EPA Regulation). • A concurrence authority is required to notify the consent authority of its decision within 40 days after receipt of the DA or, if it is a DA that is required to be advertised, 21 days after it receives all submissions (cl 62(1) of EPA Regulation). • In deciding whether or not to grant concurrence, a concurrence authority is limited to only take into consideration the heads of consideration in relation to the concurrence included in the relevant EPI, as required under s 30(3) of the EPA Act that are relevant to the DA (s 79B(8) of EPA Act). • A concurrence authority may grant concurrence (either conditionally or unconditionally) or refuse concurrence (s 79B(8) of EPA Act). • A concurrence authority must give reasons for its decision to the consent authority (cl 63(1) of EPA Regulation). • A concurrence authority may notify a consent authority of assumed concurrence arrangements (cl 64 of EPA Regulation). • A consent authority need not seek concurrence if the DA is refused or withdrawn (s 79B(1) of EPA Act, cl 58(3) and cl 62(2) of EPA Regulation). For a consultation requirement, the following provisions apply: • Consultation must be undertaken as provided in the EPI (s 79B(1) of EPA Act). • The EPA Regulation has no general provisions in relation to

consultation. • Attention needs to be given to the meaning of “consult” (discussed in Chapter ¶12 in relation to the making of LEPs). These general principles would apply in relation to consultation on a DA. If the Minister for Planning is the consent authority, any requirement for concurrence is converted to a requirement to consult (s 79B(2) of EPA Act). There are specific requirements for consultation with the NSW Rural Fire Service in relation to a DA that does not conform to the relevant specifications and guidelines in relation to bushfire-prone land (s 79BA(1A) of EPA Act).

¶42-080 Consideration and determination A DA which requires concurrence or consultation is considered and determined as would otherwise apply, with the following additional provisions or exceptions: For a DA which requires concurrence: • A consent authority for a DA that requires concurrence must grant a consent subject to any conditions of concurrence (s 79B(9) of EPA Act). • A consent authority is required to not grant consent to a DA which requires concurrence where a concurrence authority has refused concurrence (s 30(2) and s 79B(8) of EPA Act). • A consent authority may impose additional conditions to a DA that requires concurrence where the concurrence has been granted, even if those conditions address the same subject area as addressed by a concurrence authority, provided the conditions are not inconsistent with those required by a concurrence authority (s 79B(9) of EPA Act). • A consent authority may determine a DA which requires

concurrence if the time period within which the concurrence authority was required to respond has elapsed and no response has been received (s 79B(11) of EPA Act). For a DA requiring consultation, s 79C(1)(d) provides that, in determining a DA, a consent authority is to take into account any submissions made in accordance with the EPA Act. A response to a consultation would constitute a submission made in accordance with the EPA Act and so would need to be considered by the consent authority.

¶42-090 Effects of a development consent There are no special provisions relating to a DA which requires concurrence or consultation in relation to the effects of a development consent for such a DA, except that, if a consent was granted for a DA that required concurrence, and either: • the consent authority failed to seek concurrence, or • the consent authority sought concurrence, but failed to give effect to the concurrence, any such consent is potentially voidable by challenge in the courts (s 79B(10) of EPA Act).

¶42-100 Rights of review and appeal A consent for a DA which requires concurrence or consultation has the same provisions for review and appeal as would otherwise apply. However, if a right of review under s 82A is available, the council as consent authority is still bound by the concurrence conditions or refusal (s 79B(9)–(10) of EPA Act). Hence, if the applicant is dissatisfied with matters associated with the council’s determination, then the review process under s 82A has little utility. On merit appeal to the Land and Environment Court of NSW, the Court has the power to alter any concurrence conditions or refusal (see s 39(6) of the Land

and Environment Court Act 1979 (NSW)).

¶42-110 Third party rights of review A development consent for a DA that requires concurrence or consultation has the same provisions for third party rights of merit appeal as would otherwise apply.

CROWN DEVELOPMENT Editorial information

In the case of development applications (DAs) that relate to Crown development, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown

development, require an SIS, require concurrence, be regional development or any combination of these.

¶43-010 Applicant An applicant for a Crown DA must be the Crown or a person acting on behalf of the Crown (s 88(1) of Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)). For the purposes of Crown development provisions of the EPA Act, the regulations are empowered to prescribe persons or capacities of a person otherwise the Crown, not to be the Crown for the purposes of these provisions (s 88(2) of EPA Act). Pursuant to this power, cl 226(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) provides as follows: “226 Prescribed provisions: section 88 (cf clause 81MM of EP&A Regulation 1994) (1) The following persons are prescribed for the purposes of Division 4 of Part 4 of the Act (as referred to in section 88(2) (a) of the Act: (a) a public authority (not being a council), (b) a public utility, (c) an Australian university within the meaning of the Higher Education Act 2001, (d) a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990.” As a result of this regulation, all “public authorities” as defined in s 4(1) of the EPA Act with the exception of a council are brought within the

definition of the Crown for the purposes of the Crown DA provisions. Section 4(1) defines “public authority” as follows: “public authority means: (a) a public or local authority constituted by or under an Act, or (b) a government Department, or (c) a statutory body representing the Crown, or (d) a chief executive officer within the meaning of the Public Sector Employment and Management Act 2002 (including the Director-General), or (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or (g) a person prescribed by the regulations for the purposes of this definition.” It will be noted that no persons have been prescribed by regulation as a public authority which is applicable to the Crown development provisions. In relation to the meaning of the “Crown”, s 13A of the Interpretation Act 1987 (NSW) provides as follows: “13A NSW Government agencies and statutory bodies representing the Crown (1) If an Act provides that a body is: (a) a NSW Government agency, or (b) a statutory body representing the Crown, the body has the status, privileges and immunities of the

Crown. (2) If an Act provides that a body: (a) is not or does not represent the Crown, or (b) is not a NSW Government agency or a statutory body representing the Crown, the body does not have the status, privileges and immunities of the Crown. (3) This section extends (without limiting its operation): (a) to a provision that is expressed to be made for the purposes of any Act or more generally, and (b) to privileges and immunities conferred by law expressly or as a matter of construction. (4) In any Act or instrument: (a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or (b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency. (5) In this section, the Crown includes the State and the Government of the State.” Thus, where the applicant is a person or body authorised by statute, it is necessary to examine the statute in question to ascertain whether it provides for that person or body to be a New South Wales government agency or a statutory body representing the Crown or not. If it is, it is the Crown for the purposes of the Crown development provisions of the EPA Act. The Crown refers to the Monarch as head of state in Australia. The Crown is a legal fiction; the reference to the

Crown in law is a reference to the executive government, and includes government ministers, government departments, statutory authorities and office holders where the statute establishing them so provides. The question of whether an applicant for a DA for Crown development under the EPA Act is the Crown is likely to be a jurisdictional fact, following the reasoning in Timbarra. It will be noted that s 6 of the EPA Act provides that: “This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.” Thus, the EPA Act binds the Crown not just so far as it is the Crown as the Government of New South Wales, but also the Crown in any other capacity (eg as the Government of the United Kingdom or of Victoria). This power is limited to the extent of the legislative power of the New South Wales Parliament, a power limited geographically and also by the Commonwealth of Australia Constitution.1 However, despite the fact that the EPA Act binds the Crown, there is not a level playing field between private persons and the Crown and/or public authorities. Many exemptions or special provisions apply to the Crown and/or public authorities to either exempt them from requirements which would apply if the same development was proposed by a private person, or to provide onerous requirements. These are not limited to the Crown development provisions in Pt 4 Div 4 (s 88–89B of EPA Act) but include: • exemptions provided by cl 5–12 of the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) if adopted in a Local Environmental Plan • exemptions provided in the State Environmental Planning Policy — Infrastructure 2007 • exemptions provided in the State Owned Corporations Act 1989 (NSW) (see s 37A) • exemptions provided in the Nation Building and Jobs Plan (State

Infrastructure Delivery) Act 2009 (NSW), and • other statutory exemptions, some of which are discussed in Chapter ¶3 on the scope and power of an Environmental Planning Instrument. Footnotes 1

See Gray, A, 2010, “Immunity of the Crown from Statute and Suit”, in Canberra Law Review, p 1–35.

¶43-020 Subject matter of a development application A DA for Crown development may be made in relation to any type of development (without any restriction, other than that it is a DA made by or on behalf of the Crown) which requires development consent under Pt 4 of the EPA Act.

¶43-030 Where is a development application lodged? A DA for Crown development has no special requirements in relation to where the DA is lodged than would otherwise be the case with regard to standard DAs (see Chapter ¶37 at ¶37-030).

¶43-040 Information required A DA for Crown development has no special requirements in relation to the information to be submitted as part of or accompanying the DA than would otherwise be the case with regard to standard DAs (see ¶37-040), except in relation to owner’s consent. If a DA is lodged by a public authority (with additional definition to include an irrigation corporation declared by the Minister under cl 49(5) of EPA Regulation) or is for a “public notification development” (defined in cl 49(5) as State significant development (SSD) for mining

or petroleum under the State Environmental Planning Policy (State and Regional Development) 2011 or SSD on land with multiple owners designated by the Director-General), then landowner’s consent is not required if the applicant gives prior written notice to the owner of the land and publishes an advertisement in a newspaper within 14 days of lodging the DA (cl 49(2) and (5) of EPA Regulation).

¶43-050 Interaction with consent authority A DA for Crown development has a number of special provisions in relation to interaction between the applicant and the consent authority. The overriding provision is that a consent authority other than the Minister cannot refuse to grant consent for a DA for Crown development without the approval of the Minister for Planning (s 88(1) (a) of the EPA Act). Further, a consent authority other than the Minister cannot impose a condition on its consent for a DA for Crown development unless the applicant agrees to that condition, or absent the applicant’s agreement to the condition, the approval of the Minister for Planning (s 88(1)(g) of EPA Act). As a result of these provisions, the consent authority is required to have the applicant’s agreement to how it determines a DA for Crown development, or else if the consent authority proposes to determine the matter otherwise, the approval of the Minister for Planning is required. Further, if a consent authority does not determine a DA for Crown development within 70 days, the applicant may refer the matter to the applicable regional panel for determination (if the consent authority is a council) or to the Minister for determination (if the consent authority is not a council) (s 89(2) of EPA Act and cl 113B(1) of EPA Regulation). Thereafter, if a DA for Crown development is referred to a regional panel and the regional panel fails to determine it within 50 days, the applicant may refer the application to the Minister for determination (s 89(5) of EPA Act and cl 113B(2) of EPA Regulation).

¶43-060 Public notification

A DA for Crown development has no additional or altered provisions in relation to public notification than would otherwise be the case with regard to standard DAs (see ¶37-060).

¶43-070 Interaction with other public authorities As has been indicated previously, the powers of a consent authority in relation to a DA for Crown development are constrained and require agreement either by the applicant or the Minister for Planning. Further, the applicant (in the event of a delay in determination by the consent authority) may require the DA to be referred to a regional panel or the Minister (depending on who is the consent authority). A consent authority may itself refer the DA to the appropriate regional panel or the Minister for determination (s 89(2) of EPA Act), but a council as consent authority cannot refer the DA directly to the Minister but must refer it first to the regional panel (s 89(2A) of EPA Act). A determination by a regional panel of a DA for Crown development is taken to be a decision of the council (s 89(4) of EPA Act), while a Ministerial decision of a DA for Crown development can be imposed by direction on the council (s 89A of EPA Act).

¶43-080 Consideration and determination A DA for Crown development has no additional or altered provisions in relation to consideration than would otherwise be the case in a standard DA (see ¶37-080). However, in relation to its determination, the following special provisions apply: • A consent authority cannot refuse a DA for Crown development without the approval of the Minister (s 89(1) of EPA Act). • A consent authority cannot impose conditions on a development consent for Crown development unless either the applicant agrees or the Minister agrees (s 89(1) of EPA Act). • If a council is the consent authority, it cannot refer the application directly to the Minister but must refer it first to a regional panel (s 89(2A) of EPA Act).

• A consent authority may without determining a DA for Crown development simply refer it to the Minister (if the consent authority is not a council) or the applicable regional panel (if the consent authority is a council (s 89(2) of EPA Act). • If a DA is referred to a regional panel, the regional panel’s determination is taken to be the decision of the council (s 89(4) of EPA Act). As the decision of the regional panel is taken to be the decision of the council, the structures in s 89(1) still apply and thus, if the panel wishes to refuse the DA, or attach conditions without the approval of the applicant, it must refer the matter to the Minister (s 89(4) and (1) of EPA Act). • If a DA for Crown development is referred to a regional panel and not determined within 50 days, either the panel or the applicant (but not the council as consent authority) may refer the DA to the Minister (s 89(5) of EPA Act and cl 113B(2) of EPA Regulation). • A decision of the Minister in relation to a DA for Crown development is required to be implemented by the consent authority (s 89A of EPA Act). It is noted that, in relation to comparable provisions in the EPA Act prior to the current Crown development provisions where a council granted a consent with conditions not agreed to by the applicant or approved by the Minister, the NSW Court of Appeal held in Baulkham Hills Shire Council v Land Commission of NSW (1985) 55 LGRA 337 (per Hope JA held (with McHugh JA in agreement)) that the Council had a duty not to refuse or give conditional consent without the concurrence of the Minister and it made an order in the nature of mandamus that the Council grant unconditional consent to the DA (see p 345–346).

¶43-090 Effects of a development consent A development consent for a DA for Crown development operates and has the same effect as would otherwise be the case for a standard DA

(see ¶37-090).

¶43-100 Rights of review and appeal The applicant for a DA for Crown development has no right to request an internal review under s 82A where the consent authority is a council (s 82A(1)(d) of EPA Act). This is presumably because in the process of determination of a DA for Crown development, the council (if it is the consent authority) cannot act contrary to the wishes of the applicant, other than with Ministerial agreement. Hence, if the applicant disagrees with the consent of the council, in truth the applicant’s dissatisfaction lies against a decision of the Minister. Otherwise, an applicant for a DA for Crown development has the same rights of appeal as would otherwise be the case in a standard DA (see ¶37-100). In addition, a dispute settlement procedure is available where the applicant is also a public authority (as defined in s 4(1) of EPA Act) under s 121(2) of the EPA Act. Section 121(2) provides as follows: “121 Settlement of disputes … (2) Where a dispute arises between a public authority (including the Department and the Director-General) and a council with respect to: (a) the operation of any provision made by or under this Act, the regulations or an environmental planning instrument, or (b) the exercise of any function conferred or imposed upon the public authority or council by or under this Act, the regulations or an environmental planning instrument, a party to the dispute may submit that dispute to the Minister for settlement in accordance with this section.” Where a dispute is referred to the Minister, the Minister has a discretion to appoint a member of the Planning Assessment Commission to hold an inquiry and report, and the Minister is

empowered to make an order in relation to the dispute which is binding on the parties (s 121(3)–(6) of EPA Act).

¶43-110 Third party rights of review Third parties have the same rights of merit review and appeal in relation to a development consent for Crown development as would otherwise be the case in a standard DA (see ¶37-110).

REGIONAL DEVELOPMENT Editorial information

In the case of development applications (DAs) that relate to regional development, the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative, so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any

combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these.

¶44-010 Use of joint regional planning panels The provisions relating to regional development, as a further category of DA, were enacted following the introduction of the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW), which amended the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Joint regional planning panels (JRPPs) are established under s 23G of the EPA Act. A JRPP may be appointed by the Minister for a particular part of the State as specified by the Minister. Section 23G and Sch 4 of the EPA Act deal with the composition and operating procedures for a JRPP. A JRPP is comprised of five members, three of whom are appointed by the Minister on the basis of expertise in specified areas, while two are nominated by the applicable local council (one of which must have expertise in specified areas); one of the State appointees is to be appointed by the Minister as chairperson of the JRPP with the concurrence of the Local Government and Shires Association of NSW (LGSA) (cl 2 of Sch 4 of the EPA Act). Hence, the appointees of the Minister form the majority of a JRPP, albeit with the LGSA having a concurrence role in the appointment of the Chairperson. The functions of a JRPP are set out in s 23G(2)–(3) of the EPA Act which provide as follows: “23G Joint regional planning panels … (2) A regional panel has the following functions: (a) any of a council’s functions as a consent authority that

are conferred on it under an environmental planning instrument, (b) any functions that are conferred on it under Division 1AA (Planning administrators and panels) of Part 6, (c) to advise the Minister or the Director-General as to planning or development matters or environmental planning instruments relating to the part of the State for which it is appointed, or any related matters, if requested to do so by the Minister or the Director-General (as the case may be). (2A) An environmental planning instrument may only confer a council’s functions as consent authority on a regional panel if the development is of a class or description set out in Schedule 4A. The functions of a consent authority may only be conferred on a regional panel in accordance with subsection (2) (a) and this subsection. (2B) Any environmental planning instrument that is in force on the commencement of subsection (2A) ceases to have effect to the extent that it is inconsistent with that subsection. (3) A regional panel has the functions conferred or imposed on it by or under this or any other Act.” The Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW) (2011 Amendments) added s 23G(2A) and (2B) above. In relation to specific DAs (other than where a JRPP is appointed to exercise the functions of a council due to poor performance or corruption, or by consent of a council under s 118 of the EPA Act), the original role of a JRPP was established by Pt 3 (cl 8–13G) of State Environmental Planning Policy (Major Development) 2005 (NSW) (SEPP (Major Development)) commencing on 1 July 2009. Part 3 of this SEPP provided that, for certain DAs, the functions of a council as

consent authority are exercised by the JRPP. Under cl 13A of the SEPP, a JRPP cannot exercise functions in the City of Sydney where the consent authority is not the Council but the Central Sydney Planning Committee. A JRPP under the initial SEPP provisions had the role to determine: • DAs with a capital investment value greater than $10m • Crown development greater than $5m • infrastructure development greater than $5m (where the council was involved) • designated development, and • the subdivision of more than 250 lots. It also had the role to contain coastal developments (cl 13C of SEPP (Major Development)). The functions of the JRPP in relation to DAs have been altered by the Environmental Planning and Assessment (Part 3A Repeal) Act 2011 No 22 (NSW), which commenced to operate on 1 October 2011. Schedule 1, cl 1.5[1] of the 2011 Amendments inserted the new s 23G(2A) and (2B) which had the effect that the provisions in Pt 3 of the SEPP (Major Development) ceased to have effect to the extent of any inconsistency and these were repealed by the State Environmental Planning Policy (State and Regional Development) 2011 (NSW) (SEPP (State and Regional Development)). The class of DAs which may be authorised by an Environmental Planning Instrument (EPI) to be regional development with a JRPP replacing council as the consent authority is limited to the class or description of development set out in Sch 4A of the EPA Act. It is important to note that Sch 4A does not identify what development is to be determined by a JRPP. It simply identifies the maximum scope or power of an EPI to authorise a JRPP to replace a council as consent authority. Thereafter, an EPI may confer upon a JRPP functions of a council in relation to some or all of the classes or descriptions of development in

Sch 4A. Schedule 4A reduces the capacity for some development included originally in the SEPP (Major Development) to be regional development. The classes of regional development in Sch 4A exclude development which is complying development, development which is permissible without consent, development which is State significant development, development where the council is not the consent authority and development in the City of Sydney (cl 2 of Sch 4A of EPA Act). It now includes: • development with a capital investment value of more than $20m • council-related development over $5m • private infrastructure and community facilities over $5m • ecotourism facilities over $5m • designated development for extractive industries, marinas and waste management facilities or works • certain coastal subdivisions • development greater than $10m but less than $20m, undetermined by council within 120 days and at the applicant’s request, unless the delay was caused by the applicant, and • development designated by order by the Minister where the council’s development assessment is considered unsatisfactory.

¶44-020 Applicant There are no special or additional requirements limiting who can be an applicant for regional development.

¶44-030 Subject matter for a development application A DA for regional development is required to be “regional development”. Regional development is development declared as

such by an EPI where the function of a council to determine a DA is conferred on a JRPP (s 23G(2) of EPA Act). An EPI can only declare development that falls within the class or description of development in Sch 4A to be determined by a JRPP and not any development outside Sch 4A (s 32G(2A) of EPA Act). SEPP (State and Regional Development) provides that all development of the class or description in Sch 4A is regional development (cl 20). Hence, the SEPP (State and Regional Development) utilises the full scope in Sch 4A of the EPA Act. Further, cl 21 of the SEPP gives the JRPP the power to exercise a council’s function in relation to the determination of DAs and modifications to consents previously granted by a JRPP, while cl 22 gives the JRPP the power to determine subsequent DA to a consent for a staged DA granted by a JRPP (cl 22). As discussed previously in relation to formal requirements for a DA in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 (see Chapter ¶34 at ¶34-230), Biscoe J held that the question of whether a particular DA was regional development and hence, determined by a JRPP is a jurisdictional fact.

¶44-040 Where is a development application lodged? A JRPP only exercises identified consent authority functions as provided in an EPI (s 23G(2)(a) of EPA Act), and cl 21(3) of the SEPP (State and Regional Development) provides that a council remains the consent authority for regional development, subject to the exercise by a JRPP of functions conferred upon it. The SEPP specifically provides in cl 21(2) that a number of functions of a council as consent authority are not conferred on a JRPP and hence, continue to be exercised by the council. These functions include the receipt and assessment of DAs, the determination and receipt of fees for DAs, and obtaining any necessary concurrences or consultations. Thus, a DA for regional development is lodged with the council. It is noted that if a council is not the consent authority, a DA cannot be for

regional development (Sch 4A of EPA Act).

¶44-050 Information required A DA for regional development has no additional or altered provisions in relation to information required than would otherwise be the case in standard DAs (see Chapter ¶37 at ¶37-040).

¶44-060 Interaction with consent authority A DA for regional development has no additional or altered provisions to those applying to a standard DA (see ¶37-050) in relation to interaction between the applicant and the consent authority. Any such tasks are undertaken by the council as a function relating to the receipt and assessment of a DA (cl 21(3) of SEPP (State and Regional Development)).

¶44-070 Public notification A DA for regional development has no additional or altered provisions in relation to public notification than would otherwise be the case in a standard DA (see ¶37-060). The public notification requirements are undertaken by the council (cl 21(3) of SEPP (State and Regional Development)).

¶44-080 Interaction with other public authorities A DA for regional development has no additional or altered provisions in relation to interaction with other public authorities than would otherwise be the case. Interactions with other public authorities and obtaining any required consultations or concurrences under s 79B of the EPA Act are undertaken by the council (cl 21(3) of SEPP (State and Regional Development)).

¶44-090 Consideration and determination

A DA for regional development is assessed by the council (cl 21(3) of SEPP (State and Regional Development)) and hence, the council staff would prepare any necessary reports. However, as the JRPP rather than the council exercises the function of determination of a DA for regional development, it is the JRPP that is required to consider and evaluate the DA under s 79C and determine the DA under s 80 of the EPA Act.

¶44-100 Ku-ring-gai Council v Sydney Joint Regional Planning Panel (No 2) In Ku-ring-gai Council v Sydney Joint Regional Planning Panel (No 2) [2010] NSWLEC 270 (Ku-ring-gai v JRPP), Biscoe J in the Land and Environment Court of NSW considered the requirement to assess an objection under State Environmental Planning Policy No 1 — Development Standards (SEPP 1) to the application of development standards to a DA for regional development. Under the provision pertaining at the time of this case, the function of assessing a DA for regional development remained with the Council as is now the case. Biscoe J held at paragraphs [98], [100]–[101] and [104]–[105] as follows: “98 The importance of the assessment function in the statutory scheme is clear from the title of the EPA Act and from the title of Part 4 (‘Development Assessment’). One of the mandatory considerations in determining a development application is any relevant environmental planning instrument, such as SEPP 1 (where an objection thereunder is lodged): s 79C(1)(a)(i). Clause 123E of the Environmental Planning and Assessment Regulation 2000 expressly refers to the Council’s role in providing assessment reports to the Panel, but there is no obligation on the Panel to determine the application consistently with such an assessment report. … 100 The statutory scheme indicates in my view that a council’s assessment of a development application is a condition precedent

to a regional panel’s determination of a development application, and that in the case of a non-compliant development a SEPP 1 objection is at the heart of the determination so that it must be included in the assessment. 101 I accept that matters may arise at the Panel meeting held to determine the application, such as new facts raised by speakers or the Panel, which have not been, and do not have to be, the subject of prior Council assessment. That is inherent in the process. But a SEPP 1 objection in the case of a non-compliant development is different. The requirement that it be assessed by the Council cannot be avoided by lodging it at the last moment with the Panel, as occurred in this case. If that happens, and the Panel decides to consider it, the Council must be given a reasonable opportunity to assess it, which in fact did not happen in this case. … 104 Where a development application is non-compliant, consideration of development standards is essential as the development will be prohibited unless the standards can be waived. The critical role of a SEPP 1 objection in the assessment of a non-compliant development application is apparent from the very terms of SEPP 1, particularly cll 6 and 7. If a SEPP 1 objection does not form part of a non-compliant development application assessment, it is difficult to see what other function it performs. It is not to the point that a regional panel need not accept a council’s assessment and may ultimately base its decision on its own assessment (informed by the council’s prior assessment) and that panel members may have qualifications which enable them to conduct an assessment. The statutory scheme is that there should be local input through an assessment by the local council. 105 Here the Council officers did not assess, were given no reasonable opportunity to assess, and did not see the DSL1 SEPP 1 objection before the development application was determined. In my opinion, in such circumstances the Panel had

no power to determine the development application and, if the objection is legally material, the legislative intention is to invalidate the Panel’s decision.” Conclusions In the case of a DA for regional development, the following conclusions may be derived from Ku-ring-gai v JRPP: • the Council retains the function of assessing a DA. That assessment includes an assessment of any objection under SEPP 1 • an assessment of the DA by the Council is a condition precedent to the determination of the DA by a JRPP, and without such an assessment the JRPP has no power to determine the DA, and • the JRPP has the power in determining a DA to uphold an objection under SEPP 1 as it is an integral part of the determination of a DA. The post determination notification processes are undertaken by the Council (cl 21(3) of the SEPP (State and Regional Development)). Footnotes 1

CCH comment: “DSL” refers to the consultants.

¶44-110 Effects of a development consent A development consent for a DA for regional development operates and has the same effect as would otherwise be the case.

¶44-120 Rights of review and appeal The applicant for a DA for regional development has the same rights of review and appeal as would otherwise be the case. However, the

right of internal review under s 82A is to the JRPP and not the council, as the JRPP has the power to exercise the function of a council under Div 2 of Pt 4 of the EPA Act (within which is s 82A) (cl 21(1)(b) of SEPP (State and Regional Development)), and the council is still the consent authority despite the fact that its functions are exercised by a JRPP (cl 21(3) of SEPP (State and Regional Development)).

¶44-130 Third party rights of appeal Third parties have the same rights of merit review and appeal in relation to a development consent for regional development as would otherwise be the case.

STAGED DEVELOPMENT APPLICATIONS Editorial information

In the case of staged development applications (DAs), the requirements relating to standard DAs will apply in addition to any others applying to the particular DA (such as designated development, integrated development, advertised development, Crown development, or the requirement for a Species Impact Statement (SIS)). As with other types of DAs, the requirements are cumulative, except in the following instances: 1. A DA for designated development cannot be advertised development and vice versa. 2. A standard DA cannot be any other type of DA, but any other type of DA needs to meet the standard DA requirements, unless they are specifically altered for that other type. 3. For other types of DAs, the requirements are cumulative,

so that a DA for designated development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these. Also, a DA for advertised development may also be integrated development, Crown development, require an SIS, require concurrence, be regional development or any combination of these.

¶45-010 Applicant No special or additional requirements.

¶45-020 Subject matter of a development application The provisions relating to staged DAs only apply if the applicant identifies their DA as a staged DA. A staged DA is one that meets the following requirements: • it is identified as a staged DA by the applicant in the DA • it sets out concept proposals for development of a site, and • (for the concept proposal) it provides that detailed proposals for any number of parts of the site are to be subsequently the subject of a separate DA. However, a staged DA may provide detailed proposals for a first stage (in which case a subsequent DA is not required for the part for which detailed provisions are provided). Section 83B(1) and (2) of the Environmental and Planning Assessment Act 1979 (NSW) (EPA Act) provide as follows: “83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out

concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.” In addition, if an EPI requires the preparation of a Development Control Plan before any particular development may be carried out, then that requirement may be satisfied by the lodging and approval of a staged DA (s 83C of EPA Act). There is no statutory guidance in relation to the meaning of “concept proposals”, although reference should be made to the later discussion on Staged Development Consents and the decision of Biscoe J in Walker v Minister for Planning [2007] NSWLEC 741.

¶45-030 Where is a development application lodged? A staged DA has no special requirements in relation to where the DA is lodged than would otherwise be the case.

¶45-040 Information required As indicated previously, a staged DA seeks approval for “concept proposals for the development of a site”. In relation to the parts of a staged DA where only “concept proposals” are provided and hence, are to be subject to a requirement for a further development consent, cl 70A of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) provides that the information required under cl 50(1), including the information required under Pt 1 of Sch 1 of the EPA Regulation, “… may, with the approval of the consent authority, be deferred to a subsequent application”. Further, the specific information in relation to a DA for residential flat development under cl 50(1A) of the EPA Regulation only applies if the DA sets out

detailed proposals for the development or part thereof (cl 70B of EPA Regulation). Thus, a staged DA need not provide the detailed information required for residential flat buildings under cl 50(1A) of the EPA Regulation. However, a staged DA must provide all of the information required under cl 50(1) of the EPA Regulation, including Pt 1 of Sch 1, unless the consent authority approves that the provision of this information can be deferred until a subsequent DA. Therefore, an applicant wishing to lodge a staged DA needs to initially seek the approval of the consent authority to defer providing some or all of the information required under cl 50(1). In relation to the DA fee, cl 256B of the EPA Regulation provides that the maximum fee for the staged DA and subsequent DAs is the maximum payable if a single DA had been lodged, but it does not address the distribution of that amount between the staged DA and the subsequent DAs.

¶45-050 Interaction with consent authority There are no additional or special requirements in relation to a staged DA than would otherwise be the case.

¶45-060 Public notification There are no additional or special requirements in relation to a staged DA than would otherwise be the case.

¶45-070 Interaction with other public authorities There are no additional or special requirements in relation to a staged DA than would otherwise be the case.

¶45-080 Consideration and determination There are no additional or special requirements in relation to a staged DA than would otherwise be the case. However, because part or all of

a staged DA provides only “concept proposals”, the question arises as to the appropriate level of consideration required of the consent authority. This question was addressed in the NSW Court of Appeal decision of Weal v Bathurst City Council [2000] NSWCA 88. This issue will be considered later in relation to the consideration of DAs generally.

¶45-090 Effects of a development consent There are special provisions on the effects of a development consent for a staged DA. Section 83B(3) and (4) of the EPA Act provide as follows: “83B Staged development applications ... (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3).” Additionally, s 83D provides as follows: “83D Status of staged development applications and

consents (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a staged development application and a development consent granted on the determination of any such application. Note. Applicable provisions in respect of staged development applications include provisions relating to designated development, integrated development and regulations made under section 105. (2) While any consent granted on the determination of a staged development application for a site remains in force, the determination of any further development application in respect of that site cannot be inconsistent with that consent. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a staged development application. Note. See section 95 (2) which prevents a reduction in the 5 year period of a development consent.” Where development consent is granted to a staged DA in relation to concept proposals only, the granting of the consent does not authorise the carrying out of any development until a subsequent development consent is granted (s 3B(3) of EPA Act). While a development consent for a staged DA remains in force (which is a period of five years under s 5(2) of EPA Act), a consent authority’s determination of any subsequent DA relating to the site “cannot be inconsistent” with that consent (s 3D(1) of EPA Act). As a result, a consent authority cannot refuse a subsequent DA nor can it impose conditions which would be inconsistent with consent for the staged DA. A consent for a staged DA may be modified under s 6 of the EPA Act either in tandem with a subsequent detailed DA or separately.

¶45-100 Rights of review and appeal There are no special or additional provisions relating to rights of merit review and appeal for an applicant for a staged DA than would otherwise be the case in a standard DA (see ¶37-100).

¶45-110 Third party rights of review Third parties have no special or altered rights of merit review in relation to a development consent for a staged DA than would otherwise be the case. There is an additional type of DA, called State significant development (SSD), provided for in Div 4.1 of Pt 4 of the EPA Act. This category is the successor to the category of DAs called in for Ministerial determination under the then s 101 of the EPA Act from its initial enactment up until the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments). The 1997 Amendments introduced the category of SSD into Pt 4 of the EPA Act. The introduction of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) replaced this with the category of Major Infrastructure and Other Projects in Pt 3A which created a separate approval stream in association with State Environmental Planning Policy (Major Developments) 2011 (NSW). Part 3A was repealed by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 No 22 (NSW) which divided the category into two: (1) SSD under Div 4.1 of Pt 4, and (2) State significant infrastructure under Pt 5.1. These will be discussed further in Chapter ¶67.

ISSUES IN TYPES OF DEVELOPMENT APPLICATIONS AND KEY PRINCIPLES

¶46-010 Number of development applications and their appropriateness There is a need to question the extent to which the number of differing types of development applications (DAs) is justified and appropriate. In particular, two features of the types of DAs merit further consideration: (1) The advertising requirement for DAs. At present, standard DAs are not required to be advertised under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), but may need to be advertised under a council policy or practice, while there are two types of development requiring advertising (other than designated development), ie advertised development and specified development. The source of the requirement to advertise could be an Environmental Planning Instrument (EPI), the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) or a Development Control Plan (DCP). Given the broad public expectation for the public notification of DAs (other than minor ones), a more appropriate course may be to require all DAs to be publicly notified, with an exemption for ones of minor environmental effect. Thus, the separate categories of advertised development and specified development could be dispensed with. (2) The right of veto exercised by certain public authorities with the power to grant subsequent approvals. This right of veto applies to integrated development and development requiring a Species Impact Statement (SIS). The two underlying desired outcomes — that subsequent approvals should be consistent with the planning approval and that, if public authorities who determine subsequent applications have fundamental concerns about a proposed development, such concerns should be resolved at the DA stage — are unexceptional and indeed supported. However, the means of achieving these outcomes fundamentally undermine the role of a planning authority in balancing and resolving competing interests and values, by providing (in effect) the

ultimate power of decision not to the planning authority but to the narrower interests and concerns (as well as more limited scope of responsibility) of the approval authorities.

¶46-020 Principles regarding the types of development applications The key principles derived from the discussion on the types of DAs are as follows: Principle 1: The EPA Act provides for different types of DAs. These different types are as follows: • standard DA • designated development • advertised development • specified development • integrated development • DA requiring an SIS • DA requiring concurrence • DA requiring consultation • Crown development • regional development • staged DA, and • State significant development (SSD). (Part 4 of EPA Act) Principle 2: Each of the different types of DAs provides for one or

more of the following: • different specifications of who can be the applicant • different information required to be submitted with a DA • different consent authorities with whom a DA is lodged • different processes for interaction between the applicant and the consent authority • different processes for interaction between the consent authority and other public authorities • different requirements for public notification • different consent authorities to determine a DA • different limitations on the power of the consent authority to determine a DA • different effects of a development consent granted to a DA • different rights of the applicant for review and appeal, and • different rights for third parties (not being either the applicant or the consent authority) for review and appeal. (Part 4 of EPA Act and Pt 6 of EPA Regulation) Principle 3: The different types of DAs and different consequential requirements for those types may be cumulative for the same DA, with the following exceptions: • A standard DA cannot be any of the other types of DA, but other types of DA need to meet the requirements of a standard DA unless they are specifically varied for that other type. • A DA for designated development is mutually exclusive from advertised development and specified development.

Otherwise, a single DA may fall within multiple categories of DAs and hence is required to meet the requirements of these multiple categories (Pt 4 of EPA Act). Principle 4: In relation to a DA, a consent authority is the council or (if the EPA Act, EPA Regulation or an EPI so specifies) it may be a Minister, the Planning Assessment Commission (PAC), a joint regional planning panel (JRPP), or a public authority (other than a council) (s 4(1) of EPA Act). Principle 5: A DA is lodged with the consent authority. It may be delivered by hand, sent by post or sent electronically (but cannot be sent by facsimile transmission) (cl 50(1)(d) of EPA Regulation). Principle 6: A consent authority may reject a DA within 14 days of receiving it. A DA may only be rejected on the following grounds: • it is illegible • it is unclear as to the development consent sought • if it requires an Environmental Impact Statement (EIS) or SIS and none is provided, or • it does not contain, nor is accompanied by, the information required under Pt 1 of Sch 1 of the EPA Regulation. A DA so rejected is taken never to have been made (cl 51 of EPA Regulation). An applicant has a right of review of a rejection to a council (s 82B of EPA Act). Principle 7: A DA may be withdrawn by the applicant at any time prior to its determination. A DA which has been withdrawn is taken never to have been made (cl 52 of EPA Regulation), and hence, there can be no merit appeal (Hemmes Holdings Pty Ltd v City of Sydney Council [2004] NSWLEC 539). Principle 8: A consent authority may request additional information from the applicant. The applicant is not obliged to provide the additional information requested (cl 54 of EPA Regulation). Requests for additional information may affect the number of days required to

elapse for a “deemed refusal” (and hence, a right of merit appeal) if the request is made within 25 days of lodgment of the DA (cl 109 of EPA Regulation). Principle 9: A DA may be amended or varied by the applicant at any time prior to its determination, but an amendment to a DA requires the agreement of the consent authority (cl 55 of EPA Regulation). Principle 10: For DAs on bushfire-prone lands which do not conform with “Planning for Bush Fire Protection”, the consent authority is required to consult with the Commissioner of the NSW Rural Fire Service on measures of protection from bushfire dangers (s 79BA of EPA Act). Principle 11: An applicant for a DA may include in a DA a request for certain local government approvals required under s 68 of the Local Government Act 1993 (NSW) (LG Act 1993), and if development consent is granted, those LG Act 1993 approvals are taken to be granted (s 78A(3) of EPA Act). Principle 12: An applicant may request a council to conduct an internal review of its determination of the DA within six months of the determination of the DA occurring. This right of internal review only applies where the consent authority is a council and the DA is not for designated development or integrated development or Crown development and no merit appeal has been lodged with the Land and Environment Court of NSW (NSWLEC) (s 82A of EPA Act). Principle 13: An applicant who is dissatisfied with the determination of a consent authority on a DA has a right of merit appeal to the NSWLEC within six months of the determination (or deemed refusal) (s 97 of EPA Act). This right applies even if there has been an internal review under s 82A. This right does not apply if the DA is for designated development and the Minister has required a review by the PAC (s 80(6)–(8) of EPA Act). Principle 14: A development consent which approves the erection of a building is sufficient to authorise the use of the building for the purpose for which it was erected if that purpose is specified in the DA (s 81A(1) of EPA Act and in part Sevenex Pty Ltd v Blue Mountains

City Council [2011] NSWCA 223). Principle 15: Designated development is development declared to be designated either by an EPI or by the EPA Regulation (s 77A of EPA Act). The process of determining whether a DA is for designated development is the process of characterisation undertaken by reference to the list of developments declared to be designated (Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323). Principle 16: The primary source of identifying what is designated development is Sch 3 of the EPA Regulation. Development which may be included within designated development by Pt 1 of Sch 3 may be excluded by Pt 2 and Pt 3 of Sch 3 (Sch 3 of EPA Regulation). Any exclusion of an alteration or addition to a development from being designated development under Pt 2 of Sch 3 of the EPA Regulation requires the consent authority to form an opinion about the significance of the environmental impacts. The formation of that opinion is a precondition to the exercise of the power to exclude alterations and additions from being designated development, and a failure to form the opinion will result in invalidity of any approval (Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81). It is the development as described in the DA that is the subject of the inquiry required by Pt 2 of Sch 3, and the power is only available if there is an existing or approved development (Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48). Principle 17: The decision that a particular DA is not designated development is a jurisdictional fact, capable of redetermination de novo in judicial review (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, Hollis v Shoalhaven City Council [2002] NSWLEC 83). Principle 18: Where a DA for designated development includes elements which, if the subject of a separate DA would not have been designated development, it is the entire DA that is assessed as designated development and hence, subject to the requirement for an EIS (Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council [2001] NSWLEC 28).

Principle 19: A DA for designated development is required to be accompanied by an EIS (s 78A(8) of EPA Act). An EIS must be in the form specified in the EPA Regulation (Sch 2 of EPA Regulation). The contents of an EIS must include the matters in Sch 2 of the EPA Regulation. In preparing an EIS, an applicant is required to obtain from the Director-General of the Department of Planning Environmental Assessment Requirements and to comply with them in preparing the EIS (Sch 2 of EPA Regulation). Principle 20: The consent authority for a DA for designated development is required to: • place the DA and accompanying information on public exhibition for a minimum of 30 days • notify persons who are owners or occupiers of adjoining land or land which, in its opinion, may be detrimentally affected • place a sign on the land, and • place an advertisement in a newspaper. During the exhibition, any person may inspect and make copies of the DA and accompanying information and may make a submission to the consent authority. A submission by way of objection is to set out the grounds of objection. If a public exhibition has occurred and a DA is amended, substituted or withdrawn and later replaced, the consent authority may dispense with the need to readvertise if it considers the new DA differs only in minor respects from the original (s 79 of EPA Act). Principle 21: The consent authority for a DA for designated development cannot determine the DA until after 21 days following the forwarding of public submissions to the Director-General of Planning (s 80(10) of EPA Act) or where the Minister has decided to request the PAC to undertake a review (in which case the Minister becomes the consent authority) (s 80(6)–(8) of EPA Act). A development consent granted for designated development does not become effective and operative until after 28 days from the date of determination (to enable

objectors to exercise their right of merit appeal) (s 83(1)(b) of EPA Act). Principle 22: Where a development consent is granted for a DA for designated development, an objector has a right of merit appeal to the NSWLEC within 28 days of the notice of determination (s 98 of EPA Act). Principle 23: Advertised development is any development (other than designated development) which is identified as advertised development in: • cl 5 of the EPA Regulation • an EPI • a DCP, or • any development for a scheduled activity or at any scheduled premises under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) that is not otherwise designated development (s 4(1) of the EPA Act). The EPA Regulation declares, among other things, that integrated development requiring approvals under the Heritage Act 1997 (NSW) (Heritage Act), the Water Management Act 2000 (NSW) (WM Act) and the POEO Act (these categories being nominated integrated development), and development requiring an SIS are advertised development (cl 5 of EPA Regulation). Advertised development is to be notified as required by the EPA Regulation for 14 days (unless it is threatened species development or nominated integrated development in which case it is 30 days) (cl 86–91 of EPA Regulation). Principle 24: Specified development is development other than advertised development or designated development that is specified for notification in a DCP. Specified development is to be notified in accordance with the DCP (s 79A(2) of EPA Act and Centro Properties Ltd v Hurstville City Council and Others [2006] NSWLEC 78).

Principle 25: Integrated development is development that, in order for it to be carried out, will require a development consent plus one or more of the subsequent approvals listed in s 91 of the EPA Act. The principal subsequent approvals listed in s 91, which are regularly encountered, are: • s 57 approval under the Heritage Act • grant of mining lease or petroleum protection lease • Aboriginal heritage impact permit • environment protection licence • s 138 approval under the Roads Act 1993 (NSW), and • water management work approval, activity approval or water use approval under the WM Act. (Section 91 of EPA Act) Principle 26: The provisions relating to integrated development are beneficial and facultative for an applicant for a DA in that they do not impose additional requirements, but rather, offer the benefit of reducing delay and duplication in obtaining subsequent approvals. As such, it is open to an applicant to choose for a DA to be processed as integrated development or not, and it is not unlawful for a consent authority to fail to process a DA as integrated development (Maule v Liporoni & Anor [2002] NSWLEC 25). Principle 27: Some types of DA for integrated development (called nominated integrated development) are declared to be advertised development. These are DAs for development which also require the following approvals: • any approval under the Heritage Act specified in s 91(1) of EPA Act • any approval under the WM Act specified in s 91(1) of EPA Act, or

• any of the specified approvals under the POEO Act referred to in s 91A of the EPA Act. (Clause 5 of EPA Regulation) Principle 28: For a DA for integrated development, the consent authority is required to obtain from each approval body (from which one of the subsequent approvals referred to in s 91(1) is required) its general terms of approval. Each approval body is required to notify the consent authority of its general terms of approval, including whether or not it will grant an approval within (generally) 40 days (s 91A of EPA Act and cl 70 of EPA Regulation). The consent authority is required to determine a DA for integrated development either: • by granting consent consistent with the general terms of approval, or • by refusing consent if an approval body advises that it will not grant an approval under legislation. However, a consent authority may refuse to grant development consent to a DA for integrated development, even where an approval authority has given general terms of approval (s 91A of EPA Act). Principle 29: Where a development consent has been granted for integrated development, an approval body must grant any subsequent approval with conditions not inconsistent with the development consent, if the subsequent approval application is lodged within three years of the date of the development consent (s 93 of EPA Act). Principle 30: The requirement for an approval body to grant a subsequent approval where a development consent has been granted for integrated development only operates to curtail the discretion of an approval body where there is properly an application under the statute applying to that subsequent approval. Section 93 does not operate to override any procedural requirements which are preconditions to the existence of a subsequent application capable of being approved by the approval body (Ulan Coal Mines v Minister for Mineral Resources

[2008] NSWCA 174). Principle 31: A DA which relates to land that is critical habitat or is likely to significantly affect threatened species, populations or ecological communities or their habitats is required to be accompanied by an SIS (s 78A(8) of EPA Act). Threatened species, populations or ecological communities are listed, and critical habitat is declared under the Threatened Species Conservation Act 1995 (NSW) (TSC Act) and the Fisheries Management Act 1994 (NSW). Principle 32: In determining whether a development is likely to significantly affect threatened species, etc, or their habitat, the 7-Part Test contained in s 5A of the EPA Act and the Assessment Guidelines issued are required to be taken into account (s 5A of EPA Act).

Principle 33: The question of whether a development is likely to affect threatened species, etc, or their habitat is a jurisdictional fact (Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8). Principle 34: In considering whether a proposed development is likely to have a significant effect on an endangered ecological community (EEC) and thus, trigger the requirement for an SIS, it is necessary that an EEC exist. The listing of an EEC needs to be construed to establish whether it might exist although not all of the characteristic species are found on the site. An EEC should not be identified irrespective of the extent of active regeneration needed for the community to recover. In assessing the likelihood of recovery, regard should be had to the resilience of the site (Hornsby Shire Council v Vitone Developments Pty Ltd [2003] NSWLEC 272). Principle 35: An SIS is not required in relation to a DA for development which is biodiversity compliant development under the TSC Act (s 121I of TSC Act). Principle 36: An SIS needs to be prepared in accordance with the TSC Act. In preparing an SIS, the applicant is required to consult with and comply with any requirements of the Director-General of National Parks and Wildlife (s 111 of TSC Act). An SIS must be in the form and contain the information referred to in s 109 and 110 of the TSC Act. Principle 37: The meaning of “likely to significantly affect” threatened species, etc, or their habitat is likely to be the same when used in relation to the trigger for an EIS under Pt 5. The principles as to what constitutes an adequate SIS, are likely to be the same as those applying to what constitutes an adequate EIS under Pt 4 and 5 of the EPA Act (Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270). Principle 38: A DA with an SIS is declared to be advertised development and is required to be publicly exhibited for 30 days (cl 5(1)(c) and cl 89(3) of EPA Regulation). Principle 39: A consent authority (other than the Minister) cannot grant development consent for a DA with an SIS without the

concurrence of the Director-General of National Parks and Wildlife (s 79B(3) of EPA Act). Where such a development consent has been granted, the applicant does not require a general licence under s 120 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) or licences under Pt 6 of the TSC Act to implement the consent (s 118A– 118D of NPW Act). Principle 40: Where so required by an EPI, a DA may require the concurrence of a Minister or a public authority. A concurrence authority is required to notify the consent authority of its decision within 40 days after receipt of the DA or if a DA requires advertising, 21 days after it receives all submissions. A concurrence authority is required to consider only the matters specified in the EPI to be taken into account in determining whether to grant concurrence and to give reasons. A consent authority must grant development consent subject to any conditions of concurrence and must refuse to grant consent where concurrence is refused. A consent authority may still refuse consent even where concurrence is granted. If the Minister for Planning is the consent authority, any requirement for concurrence is converted to a requirement to consult (s 79B of EPA Act and cl 59–62 of EPA Regulation). Principle 41: Where an EPI requires a consent authority to consult a person before granting consent, that consultation must be undertaken as provided in the EPI (s 79B(1) of EPA Act). Principle 42: A Crown development DA is lodged by or on behalf of the Crown. The Crown includes the executive government, Ministers, government departments and any statutory body or office holder, so declared in the statute establishing them. In addition, the Crown includes persons prescribed by regulation, and this includes an authority (not being a council), a public utility and a tertiary education institution (s 88(1) of EPA Act, cl 226 of EPA Regulation). Principle 43: A consent authority (other than the Minister) cannot refuse to grant consent for a DA for Crown development without the approval of the Minister, nor can it impose any condition of consent without the agreement of the applicant or the approval of the Minister (s 88(1) of EPA Act). There is a power to refer DAs for Crown

development to a JRPP (if the consent authority is a council) or to the Minister (where the consent authority is not a council), with ultimate power to determine a DA for Crown development held by the Minister (s 89 of EPA Act). Principle 44: A DA for regional development comprises development specified in an EPI, provided it falls within the class or description of development in Sch 4A of the EPA Act. Schedule 4A excludes development which is complying development, development which is permissible without consent, development which is SSD, development where the council is not the consent authority and development in the City of Sydney (cl 2 of Sch 4A of EPA Act). It includes: • development with a capital investment value of more than $20m • council-related development over $5m • private infrastructure and community facilities over $5m • ecotourism facilities over $5m • designated development for extractive industries, marinas and waste management facilities or works • certain coastal subdivisions • development greater than $10m but less than $20m undetermined by council within 120 days and at the applicant’s request, unless the delay was caused by the applicant, and • development designated by order by the Minister where the council’s development assessment is considered unsatisfactory. (Sections 23G(2) and 23G(2A) of EPA Act) The State Environmental Planning Policy (State and Regional Development) 2011 (SEPP (State and Regional Development)) provides that all development of the class or description in Sch 4A is regional development (cl 20 of EPA Regulation). Hence, the SEPP (State and Regional Development) utilises the full scope in Sch 4A of

the EPA Act. Principle 45: A DA for regional development is determined by the appropriate JRPP. The JRPP has the power to exercise a council’s function in relation to the determination of DAs and modifications to consents previously granted by a JRPP, while the JRPP has the power to determine subsequent DAs to a consent for a staged DA granted by a JRPP (s 23G(2) of EPA Act and cl 21–22 of SEPP (State and Regional Development)). Principle 46: In the case of a DA for regional development, the council retains the function of assessing a DA. That assessment includes an assessment of any objection under State Environmental Planning Policy No 1 — Development Standards (SEPP 1). In the case of a DA for regional development, an assessment of the DA by the council is a condition precedent to the determination of the DA by a JRPP, and without such an assessment the JRPP has no power to determine the DA. In the case of a DA for regional development, the JRPP has the power in determining a DA to uphold an objection under SEPP 1 as it is an integral part of the determination of a DA (Ku-ringgai Council v Sydney Joint Regional Planning Panel (No 2) [2010] NSWLEC 270). Principle 47: A staged DA is one that meets three requirements: (1) it is identified as a staged DA by the applicant (2) it sets out concept proposals for development of a site, and (3) (for the concept proposals) it provides that detailed proposals for any number of parts of the site are to be subsequently the subject of a separate DA. However, a staged DA may provide detailed proposals for a first stage (in which case a subsequent DA is not required for the part for which detailed proposals are provided) (s 83B(1)–(2) of EPA Act). Principle 48: If an EPI requires the preparation of a DCP before any particular development may be carried out, that requirement may be satisfied by the lodging and approval of a staged DA (s 83C(2) of EPA

Act). Principle 49: A staged DA must provide all of the information required for a DA under cl 50(1) of the Regulation, including Pt 1 of Sch 1 unless the consent authority approves that the provision of this information can be deferred until a subsequent DA. Thus, an applicant wishing to lodge a staged DA needs to initially seek the approval of the consent authority to defer providing some or all of the information required under cl 50(1) (cl 70A of EPA Regulation). Principle 50: Where development consent is granted to a staged DA in relation to concept proposals only, the granting of the consent does not authorise the carrying out of any development until a subsequent development consent is granted (s 83B(3) of EPA Act). While a development consent for a staged DA remains in force (which is a period of five years under s 95(2) of EPA Act), a consent authority’s determination of any subsequent DA relating to the site “cannot be inconsistent” with that consent (s 83D(1) of EPA Act). As a result, a consent authority cannot refuse a subsequent DA nor can it impose conditions which would be inconsistent with consent for the staged DA. A consent for a staged DA may be modified under s 96 of the EPA Act either in tandem with a subsequent detailed DA or separately.

PUBLIC EXHIBITION AND INVOLVEMENT ¶47-010 Focus of chapter The specific requirements for public exhibition and public involvement regarding development applications (DAs) have been outlined previously in the discussion on the various types of DAs. That discussion focused on the statutory requirements in the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and in the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation). We will now examine how the courts have interpreted these provisions, with particular attention on any general principles enunciated by the courts in relation to public exhibition.

¶47-020 Scurr v Brisbane City Council In Scurr v Brisbane City Council [No 5] (1973) 28 LGRA 50 (Scurr), the High Court considered an appeal in relation to a DA under the City of Brisbane Town Planning Act 1964–1969 (Qld) in relation to a proposal for a shopping centre at Mt Gravatt. The leading judgment in the High Court is by Stephen J (with whom Barwick CJ, McTiernan J, Menzies J and Gibbs J agreed). The matter in issue in the proceedings was whether the public advertisement of the DA complied with the provisions of the City of Brisbane Town Planning Act 1964 (Qld), which required the public advertisement “shall set out particulars of the application” in s 22. The advertisement did not identify where on a 26 hectare site the structure was to be built, nor did it specify how large it was to be and it described the proposal as a shop. Stephen J held that to describe the proposal as a shop was positively misleading. Stephen J then noted the important role served by the public notice. He held at p 57 and p 60–61 (footnotes not included): “This section secures the attainment of two important goals. It provides the council with the views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances, and it will thus be relieved of the special burdens associated with decision making when only one side of the argument is known. It also provides objectors with an opportunity both to make their views known and, if their objections are unavailing, then to appeal to the Local Government Court against the proposed decision of the council. Each of these goals depends for its attainment upon the giving of public notice of an application and the importance which the legislation attaches to this is evident from the care with which the precise modes of giving that notice are prescribed. The section requires that the advertisements by which public notice is given ‘shall set out particulars of the application’. These words should, I think, be given a meaning consistent with the important role played by these advertisements; unless adequate particulars are advertised potential objectors will scarcely be able

to comply with the requirement of s 22(1) that objections must set out ‘the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds’. A consequence will be that the council will be deprived of the benefit of worthwhile objections when considering an application. Moreover, unless adequate information is contained in advertisements not only will effective objection be rendered difficult but the very need to object may not be sufficiently appreciated; a failure to object within the seven days or longer permitted by the section produces serious consequences since the right of appeal to the Local Government Court conferred by sub-s(3) is limited to those who have ‘duly objected’. Accordingly inadequacy of public notice renders nugatory the twin purposes of s 22, of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications with opportunity to exercise their statutory rights of objection and appeal. These considerations provide substantial grounds for concluding that the reference to ‘particulars of the application’ in sub-s(1) should not be given any narrow meaning. … [p 60] … I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects.

I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application … That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute. I have found the particulars in the present instance to be inadequate and, whether as a result of a mandatory interpretation or of a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated. … [p 61] … The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council’s, of considering an application and the objections to it raises a strong inference that the Court should, in undertaking that task, be directly concerned to assure itself that all the requirements of the giving of public notice in due form have been complied with. Their non-observance will effectively prejudice the Court’s proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a

proper presentation to the council of objectors’ views; this is an aspect to which I have already referred. Secondly, it will know that there may be persons who might have objected but who have, by reason of defective public notice, been deprived of the opportunity of qualifying as objectors. Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds. In those circumstances and faced with what I conclude were defective advertisements the substance of which did not comply with the statutory requirements of public notice the Court should, in my view, have acted in the same way as it would have been proper for the council to act had it appreciated the true effect of the defective notices; it should have rejected the application, not because of any particular objections based upon considerations of a town planning nature but rather because the public notice requirements of s 22 had not been observed. Such a rejection would not, of course, prejudice the making of a further application in the same terms immediately after that rejection, to be followed by fresh public notice, objection and the remainder of the s 22 procedure.” Conclusions While the statutory provisions considered by the High Court in Scurr differ from those contained in the EPA Act, the following conclusions in Scurr are equally applicable to the EPA Act: • The role of public advertisement serves two significant roles. It provides a consent authority with the views of objectors. Also, it provides objectors with an opportunity to voice their concerns and, in the case of designated development, found a right of appeal against the consent authority’s decision. • Unless adequate information is provided in an advertisement, effective objection will be made difficult and the need to object may not be appreciated. A failure to object may deprive persons

of their appeal rights. • Inadequate advertisement which is insufficient to meet the legislative purpose of giving notice to the public does not amount to substantial compliance as well as strict compliance. As a result, the non-compliance vitiates any ensuing development consent. • A defective advertisement has particular significance where objectors have rights of appeal, as a defective notification will prejudice the court’s consideration of an appeal by depriving it of the benefits of views of objectors, by depriving persons potentially of their right to object and may result in objections that are lodged being misconceived or inadequately informed.

¶47-030 Parkes Development Pty Ltd v Cambridge Credit Corporation Ltd In Parkes Development Pty Ltd v Cambridge Credit Corporation Ltd (1974) 33 LGRA 196 (Parkes Development), the NSW Court of Appeal considered an appeal in relation to a development consent for residential flat buildings at Cammeray. Parkes lodged a DA with the Council which was then publicly advertised as required under the then s 342ZA of the Local Government Act 1919 (NSW) (LG Act 1919). A number of objections were received as a result of the public advertisement. The Council approved the DA subject to the development being amended in significant respects and the submission of revised plans. Revised plans were then submitted to the Council and, after some interchange, further revised plans were submitted and approved by the Council. Only the original Parkes DA had been advertised. The development was being proposed by a joint venture of three parties (Parkes, Cambridge Credit and Cammeray Projects). The joint venture members fell into dispute, with Cambridge Credit and Cammeray Projects claiming that Parkes had failed to obtain a valid development consent. One of the grounds on which it was contended that the development consent was invalid was that the revised plans required readvertising and this had not occurred. At first instance, Holland J held that the revised plans should have

been readvertised, as the alterations would result in a development substantially different from the development which had been publicly notified. As Hope JA said in the Court of Appeal at p 202: “In his view, the question whether the revised plans provided for a substantially different development for these purposes had to be looked at from the point of view of potential objectors, and he formulated and applied this test, namely.‘… whether the changes are such that a reasonably minded potential objector might reasonably entertain objections to the development of the land by the erection of a building incorporating the proposed amendments.’” Hope JA (with whom Glass JA agreed) held at p 204: “It will be seen that the section is directed to the course which councils must take in relation to applications falling within the prescribed class, and to the action which objectors may take if they wish to oppose the application. Whatever else may be the operation of these provisions, I think that anything that amounts to a fresh application to the council must be notified, advertised and otherwise dealt with in accordance with s.342ZA, if it seeks approval of the erection of a residential flat development, and this even though the council has previously approved the identical development or one which is similar to it. … Based on the literal meaning of its language, one possible construction of the section is that the council need not notify and advertise revised plans so long as it is still dealing with the original application. However, as I said earlier, it is at least clear that the council must take fresh action under the section when revised plans are not being dealt with pursuant to the original application, but pursuant to a new application. In the view I have come to, this was the position in the present case as regards the building which has been called block C, and consequently it is not necessary for me to deal with the questions which would rise if this were not so.” Conclusions The conclusions to be derived from Parkes Development are as follows:

• Where there is a requirement to publicly notify a DA and such notification has taken place, any variations received cannot be such that they constitute a fresh application. If they do constitute a fresh application, it will require advertising, even if a similar DA has previously been advertised. • In determining whether variations to a DA constitute a fresh application, it is not a question of whether the new plans differ materially from those previously approved, or whether the variations are a substantially different development or whether the alterations are such that a reasonable person may object to them. The question is simply whether what was approved was the original DA or was a new DA. In Parkes Development, the Court of Appeal recognised the difficulty of distinguishing between a new application and the original application. It needs to be remembered that Parkes Development was decided in a legislative scheme that only recognised DAs and not any separate species of modification. Further, it was a legislative scheme which did not address the question of re-exhibition of an application which had been amended. Both of these issues have been addressed by the legislature in the EPA Act in the light of the issues raised in Parkes Development.

¶47-040 Hornsby Shire Council v Porter In Hornsby Shire Council v Porter (1990) 19 NSWLR 716 (Hornsby v Porter), the NSW Court of Appeal considered s 312A of the then LG Act 1919, which had been inserted into the building control provisions of the LG Act 1919 by amendments in 1985 to provide a person who owns land — that adjoins land on which it is proposed to erect a building, or whose enjoyment of land may be detrimentally affected by the erection of a building — a right to inspect the plans of the proposed building. It further required the Council in considering whether to approve a building application to have regard to the likely effect of the building on adjoining land and buildings. The case involved a building approval under the then LG Act 1919 granted by

the Hornsby Council to erect a building on land at Dangar Island. The proposal was permissible without development consent under the applicable EPI and hence, planning approval was not required. At issue in the case was whether the Council was required to notify adjoining properties of building applications to enable them to inspect any plans. The Council contended there was no requirement for the Council to notify adjoining or affected land owners. At first instance, Cripps J in the Land and Environment Court of NSW (NSWLEC) held that the Council was obliged to notify neighbours based not on the construction of the statute, but upon the doctrine of legitimate expectation. Samuels JA (with whom Kirby P and Priestley JA generally agreed) held that it was unnecessary to pursue the issue of legitimate expectation given the statutory provisions. He held at p 727–728 as follows: “It is beyond question that the purpose of s 312A was to enable adjoining occupiers to inspect the plans of a proposed building which might detrimentally affect their enjoyment of their own land. In particular, by identifying those plans which show the height and external configuration of the proposed building in relation to the site on which it is to be erected, it indicates its concern with problems such as the obliteration of views and overshadowing caused by the construction of buildings close to the boundaries of adjoining lots. I would have thought that the only purpose in granting such a right was to enable its beneficiaries to ascertain from the plans whether their apprehensions were justified and, if they were, to permit them to make submissions to the Council which the Council was bound to entertain. The Council was not, of course, bound to accede to such representations, but the right which the section plainly confers would be quite empty unless the perceived consequences of the plans could be drawn to the Council’s attention after the statutory inspection, with a correlative obligation on the Council’s part to listen. … However, it seems equally plain that the section would be robbed of any efficacy which it might have if there were no obligation on the council to inform adjoining landowners of the fact that an

application likely to affect them detrimentally had been made. So far as I know there is no way in which occupiers can find out with certainty what building plans their neighbours might harbour. Without notice, therefore, the section would be wholly [p 728] ineffective. To apply the language of the passage from Craies1 to which I have referred above (at 111), notice is essential ‘to the proper and effectual performance of the work which the statute has in contemplation’; and I have given my reasons for concluding that the purpose of the section may be regarded as well as any larger purpose informing the whole of the statute in which the section is embedded.” Or as Kirby P expressed pungently at p 718–719: “The amendment of the Act to permit certain specified owners of land to inspect plans of a proposed erection or alteration of a building on adjoining land (or where that building might detrimentally affect the enjoyment of their land) imports the necessary implication that such owners should be notified by the local government authority which has them of the existence of such plans. Otherwise, the right of inspection which Parliament has conferred would be a comparatively empty one. It would be virtually devoid of effectiveness. The owner would not ordinarily be aware of the existence of such plans, still less of their contents. The fulfilment of the statutory purpose in providing such a beneficial right of inspection of the plans would then depend, for the most part, upon chance factors. It would rely on attention to [p 719] neighbourly gossip. It would necessitate noticing surveyors or builders on the land. Or it would reward perennial inquisitiveness which just happened to take the owner, a neighbour or friend, to the local authority building department on the off-chance that plans existed which it would be useful to inspect. The alternative construction of s 312A of the Act, for which the appellant argued, has only to be stated in this way to reveal its

unacceptability. The prospect of a landowner, the beneficiary of the new statutory right of inspection of plans, attending the authority’s offices on the off-chance that such plans existed affecting his or her land, is so remote that it suggests that some other meaning should be found to give practical utility to the amendment. The possibility that the practical utility of the section was confined only to those who have an ear to neighbourly gossip or an eye fixed vigilantly on adjoining property (lest something occurs which might alert the landowner to the necessity of inspection of the plans) is quite unconvincing. It is so reliant upon chance considerations that it is not likely that Parliament would have enacted a provision so fraught with the risk of injustice to landowners who do not have the time for gossip or who are absent from their land for long periods or during daylight hours when builders are about. The enactment of a statutory right to inspect the plans would therefore, on its face and without more, appear to impose on those who have to consider the plans in connection with the provision of a building approval, an obligation to alert the affected landowner of the right which has been conferred and of the occasion which has arisen that may enliven the utility of the exercise of that right.” While the statutory context in Hornsby v Porter is not replicated in the EPA Act, it is noteworthy that the NSW Court of Appeal eschewed any general principle of legitimate expectation of a right to be notified of building proposals. Footnotes 1

CCH comment: Craies refers to Craies, WF & Edgar, SGG, 1971, Craies on Statute Law, 7th edition, Sweet & Maxwell, London.

¶47-050 Somerville v Dalby

In Somerville v Dalby (1990) 69 LGRA 422 (Somerville v Dalby), Hemmings J in the NSWLEC considered a challenge to development consents and a building approval for alterations and extensions to a dwelling at Hunters Hill. Dalby lodged a DA with Council for alterations and extensions to a heritage listed dwelling. Dalby then lodged a merit appeal with the NSWLEC against the deemed refusal of the DA. The Council then approved the DA and a building application was lodged. The Council notified the adjoining neighbours of the building application. In this period following the Council’s notification to neighbours, but before the Council approved the building application, one of the neighbouring properties was sold to Somerville. The Council was notified of the transfer but Somerville did not receive any notification from the Council. Somerville commenced proceedings to challenge the validity of the development consent and building approval. One of the grounds for the challenge related to the notification of neighbours. Hemmings J held at p 427–428 as follows: “It is well-established in this Court that the regular application of a policy by a consent authority to give notice to adjoining owners of applications for development consent would give rise to an enforceable expectation that such notice would be given, and representations made, if any, would be considered before determination of the application: see Hardi v Woollahra Municipal Council and Wasserman (Land and Environment Court of NSW, Cripps J, 17 December 1987, unreported) and Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88. Otherwise, the common law presumption of the application of the rules of natural justice is displaced by the statutory code. The contents of the requirements of natural justice or procedural fairness vary with the circumstances. In my opinion, such legitimate expectation does arise out of this Council policy and its continuous application. However, whilst the Council gives notice of all development applications and considers representations which are made to it, it has never had a policy or practice to investigate and inquire whether such notice was actually received. Such notice is given in accordance with procedures appropriate for all other Council correspondence and, having done so, in my

[p 428] opinion it thereupon satisfies its obligation in that regard. It is entitled to assume that such notice would be duly received in the ordinary course of the post and, if no representations are received in the specified time, to proceed to determine the application.” Hemmings J then considered the implications of the decision in Hornsby v Porter at first instance which was delivered after the Council approved the building application. Hemmings J held that as the DA had been notified, he inferred that the Council took into consideration that all relevant persons had previously been notified and that the Council having notified the vendor was not required to give a further notice to a purchaser of one of the neighbouring properties. Conclusions The following conclusions can be derived from Somerville v Dalby: • Where a consent authority has a policy to notify neighbours or the public of a DA and that policy is regularly applied, it gives rise to a legitimate expectation enforceable at law that notice would be given and representations considered before determination of the DA. • Where the statute addresses notification of the public and neighbours and makes provisions accordingly, the general rules of procedural fairness are displaced by the statutory provisions. • If the consent authority complies with its policy or practice on notification, the obligation is satisfied as it is entitled to assume notice would be received in the ordinary course of the post. Also, having complied with its policy, the consent authority has no duty to notify a purchaser in the event of a transfer of ownership of a property where the owner had previously been notified.

¶47-060 Hooper v Lucas A similar approach was taken by Hemmings J in a subsequent case of

Hooper v Lucas (1990) 71 LGRA 27 (Hooper v Lucas). This dealt with a challenge to a building approval for a deck at a residence at Randwick. The Council had a long standing practice of giving written notice to neighbours regarding any building application. In this instance, the Council staff telephoned the neighbour and spoke to the adult son of the neighbour, but the neighbour did not inspect the plans or make any submissions to the Council. Hemmings J held at p 31–32 as follows: “It is well-established in this Court that the regular application of a council policy to give notice to adjoining owners of applications for development or building consent gives rise to an enforceable expectation that notice thereof would be given and representations, if any, would be considered before the application was determined by the consent authority: cf Somerville v Dalby (1990) 69 LGRA 422. However, the common law presumption of the application of rules of fairness or natural justice can be displaced by a statutory code. The need for a strong manifestation of such contrary statutory intention in order to exclude such doctrines was explained by Cripps J in Porter v Hornsby Shire Council (1989) 69 LGRA 101, and confirmed by the Court of Appeal on 15 June 1990 (19 NSWLR 716; 70 LGRA 175). It was held that pursuant to the provisions of Pt XI, the expectation of a reasonably mended member of the public would be that adjoining owners would be notified of building applications in order that they could inspect plans and make decisions with respect thereto before the consent authority made a decision thereon. I am also satisfied that such expectation did arise pursuant to the policy and conduct of this Council with respect to building applications. The legislation makes no provision as to the manner of the giving of such notice, and in my opinion writing is not essential. This Council’s actual practice was either to give such notice in writing or, in cases of perceived urgency, by telephone. In my opinion, either oral or written notice of the application and a general description of the proposed building, to an adult who usually resides on the premises was sufficient. Mr Leon Hooper was such

a person. In my opinion, there was no duty to give notice of the precise details of the proposed building in the amended application, nor to contact the applicants’ architect or solicitor. I am completely satisfied that proper notice was given by Council of the amended building application, a description of the proposed building, and of the opportunity to inspect and make representations prior to its determination.” The decision in Hooper v Lucas follows Somerville v Dalby. Hemmings J notes that the common law presumptions of the application of rules of procedural fairness can be displaced by a statutory code, but the statutory code needs to strongly manifest the intention to displace the rules of procedural fairness.

¶47-070 Nelson v Burwood Municipal Council In Nelson v Burwood Municipal Council (1991) 75 LGRA 39 (Nelson v Burwood), Stein J considered the same issue in a challenge to the validity of a development consent issued for second storey additions to a dwelling in a conservation area. The Council had previously refused to grant approval to three previous DAs, each of which had been notified to neighbours. The Council approved a fourth DA, this time without notification. The Council had adopted a policy in 1987 to notify neighbours and persons likely to be affected of DAs. Additionally, the applicable Local Environmental Plan (LEP) declared the DA advertised development in relation to which at that time the EPA Act required to be notified as it was designated development. In relation to the failure to observe the Council’s notification policy, Stein J held at p 42–44 as follows: “Coming to the first issue — the failure to notify residents of the fourth development application. It is clear that Council had a policy of notification of development applications from 1987 and, it appears, more or less consistently applied the policy. I can do no better than to quote from the decision of Cripps J in Hardi v Woollahra Municipal Council (Land and Environment Court of New South Wales, 17 December 1987, unreported):

‘… the Council’s policy and the continuous application of it gave rise to an enforceable legitimate expectation that Council would receive neighbour objections and representations and consider them before making a decision with respect to a building application before it. Such a reasonable expectation arising from a public promise by a local authority is enforceable not only because it would be unfair to a person acting on that promise were it to do otherwise, but also to further the public interest requirement that when a public authority has promised it will follow a certain procedure, it ought, in the interest of good administration, be held to that promise so long as the implementation of it does not interfere with its statutory duty. Furthermore, it can be [p 43] inferred, I think, that when a local council adopts a policy of obtaining representations, it does so because it considers that by receiving them it will be better able to discharge its duty or function under the relevant legislation.’ The Council policy is no doubt underpinned by the goal of public participation in the planning decision-making process. It builds on the objectives of the Environmental Planning and Assessment Act and the plans made under Pt III thereof. The benefit of such a provision to Council ensures that the views of those who oppose an application are assessed: see the discussion of Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 251–252; 28 LGRA 50 at 56–57. As his Honour observed, attainment of the goals depends upon the giving of notice. The response of the Council to the legitimate or reasonable expectation argument of the applicants appears to be two-fold. First, notification is said to be merely the requirement of policy and not legally binding on the Council. Secondly, the history and circumstances of the application made it unnecessary to notify residents. Council was already well aware of the residents’ concern because of the earlier applications and the fourth

application only varied in five minor respects from the third, in respect of which Council had already notified and considered objections. In short it is submitted that the aim and spirit of the Council’s policy had been fulfilled by the Council’s previous notifications and it follows that residents had no reasonable expectation of being notified. It was faintly argued on behalf of the Council that the fourth application was in reality not a new application but a reconsideration of the preceding application or an amended application. … However, it is patent that Council actually refused the third application and notified the applicant and objectors of its decision. As Hemmings J observed in Somerville v Dalby (1990) 69 LGRA 422 at 430, upon determination of a development application and the giving of notice thereof: ‘… council has no further function or jurisdiction with respect to its terms or conditions … [u]nless and until a consent authority is in receipt of … a further development application, it has no jurisdiction to grant … development approval’: see also Everall & Clough v Ku-ring-gai Municipal Council (1991) 72 LGRA 369. In my opinion it is abundantly clear that the fourth plan was a fresh development application. Residents and absent owners had a reasonable and legitimate expectation that they would be notified of the application and given the opportunity to present their views, that is, that they be accorded procedural fairness. By its inaction (by not advertising) Council deprived itself of the opportunity of considering submissions. It is not to the point to say that the residents had been notified of earlier applications even if the third application was very similar. The point is that one just does not know who will make a submission or what the contents of any submission may be. [p 44] For example, circumstances may have changed between

applications, causing some to change their views. Additionally, new residents may have moved into the area. One cannot assume that the objections will be the same. I have no doubt that the applicants and others living in proximity to the development were denied procedural fairness in that they had a proper and reasonable expectation to be notified (by reason of the consistently implemented Council policy) and were not so notified. They were therefore deprived of the opportunity of making submissions and having them considered.” In relation to the non-compliance with the LEP provision making the DA advertised development, Stein J held at p 44 as follows: “Treating application No 4 as a fresh application, as I must, it is undisputed that no notice was given which would comply with the requirements of the Environmental Planning and Assessment Act provisions (s 84 in particular) mentioned in cl 5(9). In my opinion there are demonstrated breaches of cl 5(7) and (9) and possibly of cl 5(3), (4) and (8). However, I need not determine the latter claims. Compliance with the notice requirements in subcl (9) cannot be lightly shrugged off by the history of notification of earlier applications and Council’s belief that it was aware of the views of residents. It is an important provision placed in the local environmental plan by Council to ensure that the views of residents in the conservation area be obtained in considering any development application. I do not accept that compliance with this requirement is directory only.” Nelson v Burwood follows the consistent earlier line of decisions in Somerville v Dalby and Hooper v Lucas but expands further on the underlying policy importance of the requirement to notify. Further, Nelson v Burwood establishes that compliance with the advertised development requirements is not directory.

¶47-080 Curac v Shoalhaven City Council In Curac v Shoalhaven City Council (1993) 81 LGERA 124 (Curac), Stein J in the NSWLEC heard a challenge to the validity of a

development consent granted by the Council for a quarry at Nowra on the grounds of breach of the advertising requirements for designated development (then in s 84 of the EPA Act, now s 79 of the EPA Act). The Council initially advertised the DA with a 30-day period for submissions in June to July 1992. The Council then readvertised the DA from December 1992 to January 1993 with a 20-day period for submissions, despite the statutory requirement (both then and now) for a 30-day exhibition period. Further, the advertisements contained a number of errors, including a misdescription of the lot number of the land. Stein J held (noting the references to the EPA Act and EPA Regulation refer to the Act prior to the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments) and changes to the EPA Regulation, although in substance, the current provisions are the same) at p 127–130 as follows: “The backdrop to the public participation inherent in ss 84, 86, 87 and 98 of the Act is s 5(c). It provides that the objects of the Act are, inter alia, (c) ‘to provide increased opportunity for public involvement and participation in environmental planning and assessment’. The sections are complementary to other provisions of the Act, for example, the making of environmental planning instruments (ss 47–49, 66–68), s 90(1)(r) and s 123. It is apparent that the notice requirement for designated development in s 84 coupled with reg 37 and reg 39 is designed to ensure the fullest possible opportunity for public participation in the planning process. As Bignold J observed in Ballina Environment Society Inc v Ballina Shire Council (1992) 78 LGERA 232 the legislature was careful to distinguish between designated development (being development likely to be environmentally sensitive or controversial having regard to potential environmental impacts) and other development applications where lesser requirements are necessary. A good example of this is the distinction between reg 37(e) and reg 40(e). The latter provides that where an environmental planning instrument requires a non-designated development to be

advertised (s 30(4)) the length of the public notice is reduced from thirty days to fourteen days. Each of the key sections mentioned above refer to the ‘period specified in the notice’, for example, s 86 and s 87. Section 84(4) refers to the prescribed requirements for the notice. Regulation 37(e) provides for a ‘specified period of not less than 30 days’ while it may be noted that s 84(5) refers to circumstances where the ‘period’ of exhibition exceeds thirty days. What is plain is that thirty days is intended to be the minimum period of notice under s 84: see Ballina (at 238). Indeed, that is what the regulation says: ‘not less than 30 days.’ … [p 128] In my opinion there is no doubt that the thirty day requirement for the notice prescribed by reg 37(e) was intended to be a mandatory one for the reasons discussed earlier. The omission to give sufficient notice is not cured by the fact that a notice some six months earlier in June 1992 specified thirty days, since no separate advertisement was published within fourteen to twenty days thereafter, as required by reg 39(a). In my opinion, this requirement (reg 39(a)) is also a mandatory requirement in the public interest. The first advertisement therefore cannot be called in aid of the later notices (30 December 1992 and 13 January 1993), especially since they are six months apart. I reject the submission of Mr Webster, on behalf of the Council, that the three advertisements may be taken together and provide adequate compliance with the requirement. Should I be wrong in the above conclusions, and the thirty days requirement in reg 37(e) and the requirements in reg 39(a) be directory, being purely procedural, then it is patent that there has not been substantial compliance. Twenty days is not thirty days and notwithstanding the notoriety of the application in the area and the number of objections, one will never know if some members of the public were deprived of the opportunity to object to the development application and acquire the rights

accompanying such objection. At the same time, the consent authority may have been deprived of the opportunity to consider any such submissions in making its determination. The importance of public notice provisions, such as s 84, cannot be underestimated: see Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 252, 255; 28 LGRA 50 at 56, 59– 60 and Monaro Acclimatation Society v The Minister (Land and Environment Court, 2 March 1989, unreported). Reasonable opportunities for public participation in plan making and in the development process are crucial to the integrity of the planning system provided under the Environmental Planning and Assessment Act. Section 84, coupled with the provisions in reg 37 to reg 40, are requirements intended to ensure public participation in the planning process. They are, in effect, statutory requirements to serve the public interest inherent in the objective contained in s 5(c) of the Act. As to the other alleged breaches, the only one of any real substance is the incorrect lot number included in the public notices. In this regard the advertisements contained the street address, which is far more useful to a reader than a lot number, which may mean nothing. Added to this, there is now no dispute that the requirements of s 84(1)(b) were met, that is, the exhibition of the prescribed notice on the land. It may also be noted that the correct lot number was included in virtually all the other documentation of the Council concerning the application. In my opinion the requirement that the notice contain a description of the land in reg 37(a) has been met, notwithstanding the error. If, on the other hand, one was to conclude that it is a directory requirement, then there has been substantial compliance. … [p 129] … In summary, I have found that the thirty day requirement in reg

37(e) is a mandatory requirement in the public interest and requires strict adherence. The requirement has been breached and this has serious implications for rights arising under ss 86, 87, 90 and 98. It is not a technical breach. The requirement is not directory, but even if it could be seen as such, there has been no substantial compliance. … [p 130] … The problem for the respondents on the issue of discretion is that while they can point to a lack of prejudice to the applicant, and many others, caused by the breach, they cannot be sure that some members of the public would not have come forward with objections if there had been compliance with the requirement of the statute. One will never know. As Mr Maston, appearing on behalf of the applicant, submits, it is the rights of the unknown objectors which the applicant presses. To the extent to which the discretionary matters relied on by the respondents may be weighed in the balance, I am not convinced that they should lead the Court to decline to make a declaration of invalidity.” Conclusions The following conclusions can be drawn from Curac: • The notification requirements for designated development are designed to ensure the fullest possible opportunity for public participation in accordance with the objectives of the EPA Act. • The legislature has carefully distinguished between DAs for designated development and other DAs where less requirements for public participation were considered necessary. • The public exhibition period for DAs for designated development is intended to be a minimum period of 30 days. This requirement is mandatory.

• The reference to an incorrect lot number is not a breach in circumstances where the correct street address was provided and a notice was erected on the land. • An important issue in relation to non-compliance with notification requirements is that one cannot be sure that some members of the public would not have lodged objections if the notification requirements had been properly undertaken.

¶47-090 Maybury on behalf of Kurri/Weston District Concurred Citizens Action Group v Minister for Planning and Alumino Australia Pty Ltd In Maybury on behalf of Kurri/Weston District Concurred Citizens Action Group v Minister for Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154 (Maybury), Stein J in the NSWLEC heard a challenge to the validity of a development consent granted by the Minister for an aluminium dross plant at Kurri Kurri. The basis for the challenge related to requirements relating to the notice of the DA erected on the land and the notification of owners but not occupiers of land adjoining the land (the subject of the DA). In relation to the notice on the site, in this case the notice was placed not on the lot on which the proposed development was to be sited but two notices were erected and exhibited on a lot between the site of the proposed development and a nearby road. One notice was nailed to a post holding a “For Sale” sign and the second was nailed to a tree. Both notices were close to a neighbouring road. The current provisions for notice on the site are contained in cl 79 of the EPA Regulation. They require the notice to be erected on the land to which the DA relates, to be erected on a signpost or board, to be clear and legible, to contain certain information, and if practicable, be capable of being read from a public place. In relation to the failure to erect the sign on the land (the subject of the DA), Stein J held (referring to the former statutory provisions) at p 159–160:

“Section 84(1) of the Act is part of the process by which public participation is encouraged, see my remarks in Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 128–129. The requirement in s84(1)(b) to exhibit the notice on the land to which the development application relates is obviously in order to bring the location of the proposed development to the notice of members of the public. The sign could have been exhibited on the cleared area on the southwestern corner and be visible from the road. Indeed, it remains a mystery why this was not done. However, two signs were erected reasonably proximate to the subject land and in a prominently visible position to vehicles passing along Mitchell Avenue. In my opinion the purpose of the requirement was generally met by these signs. I do not think that strict compliance with s84(1)(b) is required although substantial compliance is necessary. This [p 160] appears to have been the view taken by Cripps J in Davenport v Waverley Municipal Council (1981) 46 LGRA 97 at 102 and 106. In my view the purpose of the requirement was fulfilled by the signs which were erected and the requirement was substantially met. The notices which were displayed were more likely to be seen than if placed on the subject land. Accordingly, the challenge on this issue must fail.” Stein J held in relation to the means of erection of the notices at p 160: “Regulation 38(b) requires that the notice ‘be displayed on signpost or board constructed in a sturdy manner and comprising durable and weatherproof materials’. The signs which were displayed were nailed to a tree and to one leg of a ‘for sale’ sign. The regulation has obviously not been met. However, I do not believe that strict compliance with the regulation is a necessary precondition. In any event the compliance was sufficient. The importance and intent of the regulation is that the sign be of such a nature that it will last for the exhibition period. In this case they did so last.

Regulation 38(f) requires the notice to be ‘so exhibited as to be capable of being read from a public road …’. I do not believe that this means capable of being read from a moving vehicle on the public road. On the evidence I am satisfied that the signs which were erected were capable of being read from the immediately adjacent public road. There was no fence erected between the edge of the road and the signs and nothing to prevent anyone walking right up to the sign to have a closer inspection. Regulation 38(e)(iii) prescribes that the notice shall contain a brief description of the development application. It is Mr Maybury’s submission that the notice contained an inadequate description of the development. It should, according to him, have contained reference at least to ‘dross’ being a toxic chemical and to the relevance of State Environmental Planning Policy No 33 — Hazardous and Offensive Industries to the development as a potentially hazardous industry. The purpose of the requirement is to alert readers to a train of inquiry which would lead to an examination of the development application and environmental impact statement. It is not intended to summarise or assess the application. The subclause refers to ‘a brief description’ and in my view the description on the notice was an adequate one to fulfil the requirement.” The critical breach alleged was that the only persons notified were land owners, as derived from the Council’s rate records, and not occupiers, even though the Council and the Minister knew there were numbers of occupiers of premises who were tenants. The statutory requirement (then in s 84(1)(a)(ii) of the EPA Act pre1997 Amendment, and now in s 79(1)(b)) is that: “the consent authority must … give written notice of the application … to such persons as appear to it to own or occupy the land adjoining the land to which the development application relates …” (to use the current terms of s 79(1)(b)(i), although its predecessor provisions are in substance the same). In relation to this claim, Stein J held at p 162–163:

“It is axiomatic that in terms of responding to proposals for designated development, tenants and other occupiers of land have the same rights as owners. The expressions ‘where practicable’ and ‘as appear to it to own or occupy’ do not relieve a consent authority from the need to inquire beyond their own records where this is practicable and appropriate. Moreover, it is the ‘appearance’ to the consent authority of ownership or occupation which is material. … What was the Council to do in order to carry out its duty under the statute? According to the respondents, nothing more than have regard to the Council’s records, which the Council knew contained only information as to land ownership. It is said that anything more would be onerous, impractical and fraught with administrative difficulties. I do not accept this submission. To do so would have the effect of writing occupiers of land out of the notification provisions in s 84(1)(a). This would run counter to the plain intent of the section that occupiers be notified where it is practical to do so. One would have thought that a request of Alcan Limited for a list of tenants was one avenue open to the Council, given its own knowledge (and the statement in the environmental impact statement). Another possibility would be to ‘letterbox’ the dwellings within the affected area, especially those in Horton Road. This could have been quickly effected. It is difficult to see that these sorts of efforts could be seen as impracticable or administratively onerous. In my opinion, given the Council’s knowledge (and through it the Minister’s), the consent authority was obliged to make some reasonable inquiry or attempt to ascertain any relevant occupiers of land. I cannot see how it was not practicable in the circumstances to make any inquiry. The Council knew its records related only to owners. It knew that the Department was asking for a list of occupiers as well. The Council chose to rely on its rate records and supply the Department with a list of owners only. It made no attempt whatever to ascertain if there were any occupiers in circumstances where Mr Mortomore (with his lengthy

experience with the Council) must have known that it was likely that there would be occupiers. [p 163] The requirement of s 84(1)(a)(ii) is one which is either strict or requires substantial compliance. Here there was no compliance, nor attempted compliance. The objective of allowing occupiers (as well as owners) the opportunity to participate in the decisionmaking process failed, notwithstanding that Mrs Blakemore apparently found out about the proposal from other sources. The Court does not know about other potential occupiers. The failure of the Council to make any inquiries has caused this situation and defeated the clear purpose and intent of the provision. … It is true that the notification procedure under s 84(1)(a)(ii) is but part of the process whereby public notice of the application is given. However, it is a most important requirement when it comes to those owners and occupiers who are most directly affected by the proposal. Section 84(1)(a)(ii) is a provision which seeks to ensure that owners and occupiers likely to be affected learn of the application. The importance of notification was stressed by Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 251–252; 28 LGERA 50 at 57. In my opinion there has been a clear breach of s 84(1)(a)(ii) and the applicant is entitled to a declaration of invalidity of the consent …” Conclusions The following conclusions can be derived from Maybury: • The requirement to erect a sign on the land (the subject of a DA) for designated development, the requirement as to the structure on which the sign is to be erected and the requirement for the sign to contain a brief description of the DA (all in cl 79 of the EPA Regulation) do not require strict compliance, but substantial compliance is necessary.

• The requirement to give notice of a DA for designated development to such persons as appear to the consent authority to own or occupy adjoining land (s 79(1)(b) of EPA Act) requires the consent authority to make reasonable enquiries or attempts to ascertain not only the owners of land but occupiers of land. Failure to do so will result in any subsequent consent being invalid. The conclusion that the legislative provisions in the EPA Act relating to public participation regarding DAs displace entirely the common law rules of procedural fairness has been indicated in Somerville v Dalby. This question, in relation to the making of an LEP rather than a DA, has been considered by the NSW Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 (Vanmeld v Fairfield), where the majority of Meagher JA and Powell JA held that the provisions of the EPA Act in relation to public participation in the making of an LEP displaced the common law rules of procedural fairness, while Kirby P in dissent, held that they did not. The principles outlined by the majority of the NSW Court of Appeal in Vanmeld appear to be equally applicable to the process for consideration of a DA.

¶47-100 Doueihi v Canterbury City Council In Doueihi v Canterbury City Council [2003] NSWLEC 267 (Doueihi), McClellan CJ in the NSWLEC heard a challenge to a development consent granted for specified development (as provided in s 79A(2) of the EPA Act). The relevant Development Control Plan (DCP) required the notification to neighbours to include a description of the proposed development. The requirement for a description of the development in notifications applies in the newspaper advertisement for designated development (cl 78(1)(c) of EPA Regulation), for the sign on the land for designated development (cl 79(1)(e)(iii) of EPA Regulation), the notification for advertised development (cl 89(1)(c) of EPA Regulation) and may also be included in a DCP for specified development as was the case in Doueihi. In Doueihi, the notification did not clearly identify the substantial games room at the rear of the property. In Doueihi, it was submitted that the notification was misleading, and as a result,

the neighbour was deprived of the opportunity to properly consider the DA and make a submission. McClellan CJ upheld this submission, and held at paragraphs [28]–[33] as follows: “28 In the present case it is now accepted by all parties that an obligation fell upon the Council to provide notice to the adjoining owner pursuant to s 79A(2). The essence of the position is that because the Council had adopted a development control plan which provided for notification, and the present application was controlled by that development control plan, notification was required. Furthermore, in the present case the Council exercised its discretion and determined that plans should accompany the notification as provided by clause 3.3 of the development control plan. In those circumstances the Council, having embarked upon a course of notification accompanied by plans, was required to ensure that the plans which it provided did not mislead those who were intended to be in a position to consider them and make submissions to the Council about them. 29 The relevant principles were considered by the Court of Appeal in the context of a public notification of a proposed change in the zoning of land in Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. As Rolfe AJA points out in that case, whether or not the notice given by a Council is satisfactory will depend upon the circumstances of each case. However if the notification which the Council gives includes some detail of the proposal and does not confine itself to offering an invitation for a person reading the notice to inspect plans at the Council the obligation falls upon the Council to ensure that the information it gives is relevantly accurate and complete. 30 In the context of a rezoning his Honour said: ‘problems will arise, … if the notice, as it must do directs members of the public to where and when all the relevant information may be inspected but by the giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected so that it is unnecessary for them to accept the notice’s invitation to

inspect the relevant information. In those circumstances the obviously beneficial effect of the giving of the public notice would be defeated by the inaccurate or incomplete information in it, which the Act does not require, so that notices under section 66 and infected by inaccurate or incomplete information, have been held to be misleading and hence invalid. The fact that they comply with the express requirements of the Act does not in my opinion save such notices.’ 31 His Honour later said: ‘‘Misleading’ is a word of pejorative connotation, but for present purposes it probably means little more than failing to fully advise members of the public, through the public notification of the draft local environmental plan, or by making a limited statement lulling them into a false sense of security’. 32 In the present case the Council set out to provide more than notice that a development application had been received. It believed it necessary to provide further information by way of some of the plans of the proposal. However the plans which it provided were not complete and did not provide any, or any adequate indication to the ordinary person that the facilities which were proposed at the rear of the property would extend to the rear boundary and would provide effectively for a concrete slab and swimming pool to cover the whole of the rear yard of the property and extend above natural ground at the highest point by some 3.4 metres plus 1.8 metres of fencing, half of which would be full masonry. 33 Even with the discussions which I accept took place with the neighbour a notification in the form made was likely to mislead the recipient and failed to provide such a person with sufficient information to ensure that they were not lulled into a false sense of security. The notification given was accordingly misleading.” Conclusion The following conclusion may be derived from Doueihi:

• Where a notification for designated development, advertised development or specified development is required to contain a description of the proposed development, that description must not be misleading in that it fails to fully advise the public, or by making a limited statement, lulls the public into a false sense of security.

¶47-110 Centro Properties Ltd v Hurstville City Council In Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78 (Centro Properties), Talbot J in the NSWLEC heard a challenge to the validity of a development consent for a cinema and retail complex at Beverly Hills. The DA was for specified development requiring public advertising under a DCP. The DCP specified what the public notification should contain. It was submitted that the notification did not contain a number of the matters required under the DCP, including: • lodgment date of the DA • an invitation to inspect the DA and supporting documents • a statement that the substance of written submissions would be included in the Council reports on the DA • a statement that submission may be accessed under freedom of information laws • a statement that copies of plans may be obtained, and • a statement that compliance with standards or codes or support by the Council staff does not guarantee approval. Based on the deficiencies, it was claimed that the development consent was invalid. In rejecting this claim, Talbot J held at paragraphs [33]–[35] as follows: “33 Some assistance can be gained by reference to the decision of Stein J in Johnson v City of Lake Macquarie Council (1996) 91

LGERA 331 confirmed in Pulver Cooper v Blackley Pty Ltd (1998) 108 LGERA 76 at 94. In Johnson Stein J said at 341: ‘It seems to me that having regard to the objective of the Act to promote public participation and the legislative scheme, the provisions relating to public notice must be seen as an important part in the process. In order to attain the object [s 5(c)], strict or substantial compliance is required as a precondition to consideration of an application.’ 34 The primary aims of DCP No. 17 are set out in clause 1.6 as follows: (a) enable public participation in the consideration of development applications; (b) provide a process for property owners and residents to make submissions; (c) provide a process when notification is required; (d) set out the matters Council will consider when forming its opinion as to whether or not the enjoyment of adjoining and neighbouring land may be detrimentally affected by a development after its completion; (e) ensure notification of landholders who may be affected by a development application even though they do not own adjoining land; and (f) define the circumstances when notification is not required. 35 In my opinion the letter of notification made the recipient aware that the proposal involved a major project at an [sic.] readily identifiable location and that the details of the application including the plans could be readily inspected at two apparently prominent locations during usual business hours for 14 days. The omission of the particular details that are fastened upon by the applicant do not, in my view, detract from the effectiveness of the notice for the purposes and objectives outlined in cl 1.6. The

failure to provide some of the information in accordance with the strict particularity mentioned in cl 5.1 did not, in my opinion, detract from the substantial effectiveness of the notice or have the consequence that any potential objector would not have come forward, at least to inspect the material exhibited.” Conclusions Centro Properties provides the following conclusions: • The provision of public notification of a DA is an important part of the process. Strict or substantial compliance is required as a precondition to consideration of a DA. • In establishing whether substantial compliance has been achieved, consideration is given to whether any defects detract from the effectiveness of the notification for the purposes and objectives in the EPA Act or, if applicable, a DCP.

¶47-120 Coffs Harbour City Council v Arrawarra Beach Pty Ltd In Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365 (Coffs Harbour v Arrawarra), Talbot J heard a challenge by the Council to the validity of a development consent granted by it for the removal of trees at Arrawarra. One of the grounds of the challenge was that the public notification for specified development was misleading as the notification advertisement gave the lot and deposited plan number to only part of the site and included a street address with the street name being incorrect. That incorrect street name was, in fact, the name of another street in the area. Talbot J held at paragraphs [37]–[39]: “37 In Monaro Acclimatisation Society v Minister for Planning (Land and Environment Court of NSW, Stein J, 2 March 1989) Stein J said that whilst public notice was to be in a form and manner determined by the Council it must not be relevantly misleading.

38 In Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91 Sheppard AJA said that ‘a notice which, because of surplusage or for some other reason is misleading or capable of being misleading in a material respect cannot be a notice …’ 39 In my opinion the notice of proposed development advertised in the Coffs Coast Advocate is misleading by reason of the failure to accurately describe the land to which the development application relates in respect of the address of the property by reference to the wrong street. No such error occurred in the notification given directly to landowners. The omission of a title reference to one of the lots is not in my view a critical omission in the sense that it is a detail that would not be readily understood except by those persons with specialised knowledge. The prospect of any recipient being misled by the omission is not therefore high enough to justify a finding that the omission caused the determination to be invalid. However as the Council made the decision to publish a notice in the local newspaper for whatever reason it thereby raised a legitimate expectation that the information provided by the notice would be sufficiently accurate to enable a concerned reader to consider whether an objection would be lodged. That in my view is a fatal omission.” Thus, in Coffs Harbour v Arrawarra an error in the public notification of a DA relating to an omission of a lot and deposited plan was held not to be a critical omission as there was not a high prospect of a person being misled, but an error in the street name is a fatal one to the validity of any subsequent development consent. In Fitzgerald v City of Canada Bay Council [2004] NSWLEC 293, Pain J in the NSWLEC held that where there are several possible descriptions of land any one description will do, provided it is accurate, in the context of a notice of development consent under s 101 of the EPA Act (at paragraph [14]).

¶47-130 Requirements for an objector The question of who constitutes an “objector” under the EPA Act was considered by Bignold J in the NSWLEC in Ballina Environment

Society Inc v Ballina Shire Council (1992) 78 LGERA 232 (Ballina). In this case, the Council sought to strike out a third party merit appeal under s 98 of the EPA Act lodged by the Society against a development consent granted by the Council to itself to clear and drain wetlands at Lennox Head as part of the upgrading of a sewerage scheme. The basis of the Council’s claim was that the Society was not an “objector” as defined in s 4(1) who had made a submission on a DA for designated development by way of objection. The then applicable provision in the EPA Act was s 87(1) which provided: “87.(1) Any person may, during the period specified in a notice under section 84(1), make a submission in writing to the consent authority, and, where a submission by way of objection is made, the grounds of objection to the development application referred to in the notice shall be specified in that submission.” [Emphasis added] Currently, the equivalent provision is s 79(5) which provides as follows: “79 Public participation — designated development … (5) Making of submissions During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.” It will be noted there are no appreciable differences between the provisions considered in Ballina and those now applying. The Council argued that the Society’s submission while indicating that it objected did not specify the grounds of objection to the DA. The Society’s submission indicated that it objected to the DA and thereafter complained that the short time provided and its proximity to Christmas prevented a more detailed submission until the New Year, that more detailed submission was subsequently lodged after the expiry of the submission period but before the Council determined the

DA. Bignold J held at p 234 and 236–237 as follows: “The Environmental Planning and Assessment Act does not define the nature or content of an objection under s 87(1). Nor does it define or confine the grounds of objection. The applicant’s written submission clearly communicated its objection to the proposed development. That in my judgment is sufficient (putting aside for the moment, the alleged absence of stated grounds) to constitute an objection: cf Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19; City of Heidelberg v Melbourne and Metropolitan Board of Works [No 2] (1979) 42 LGRA 21. … [p 236] … In my judgment the applicant’s objection did relevantly specify ‘the grounds of objection to the development application’ when it asserted that insufficient time had been allowed by the respondent for the public exhibition of the development application and accompanying environmental impact statement and for the public to respond thereto. As I have earlier noted cl 37(e) of the Environmental Planning and Assessment Regulation 1980 (NSW) specifies a minimum period of thirty days. The combined effect of s 84 of the Environmental Planning and Assessment Act and cl 37 of the Regulation confers a discretion upon the consent authority to stipulate a [p 237] period of time exceeding the prescribed minimum period of thirty days, that the relevant development application and accompanying environmental impact statement will be publicly exhibited with the attendant rights, operative during that period, conferred upon all persons to inspect the relevant documents (s 86) and to make submissions in respect thereof (s 87).

No doubt the applicant’s objection was principally directed to the respondent’s exercise of the relevant statutory discretion in the present case, that is, it was a complaint directed to the procedure employed by the respondent in processing the development application. But why is this not to be regarded as an objection ‘to the development application’? The respondent’s argument requires an amendment to the statutory text — namely reading ‘development application’ as if it had said ‘development’ or ‘proposed development the subject of the development application’. No doubt the reference in the text to ‘development application’ includes this meaning but I can see no good reason to confine it to that meaning. A ‘development application’ is ‘an application for consent … to carry out development’ (s 4(1)). However it is as much a part of a process, as it is a product or a document, cf Parkes Development Pty Ltd v Cambridge Credit Corporation Ltd [1974] 2 NSWLR 590 at 610–611; (1974) 33 LGRA 196 at 213, and the applicant’s objection certainly is directed to the process employed. In my judgment this is a sufficient specification of the grounds for the objection ‘to the development application’, having regard to the statutory language and to the fact that the section does not seek to confine or limit the grounds of objection.” Bignold J then considered what would be the position if his conclusion — that the objection did specify grounds of objection — was incorrect. He concluded at p 241 as follows: “In my judgment the requirement for the objector to specify in the written objection the grounds of objection is clearly a procedural matter and is not a matter of substance in contrast to the other requirements of s 87(1): cf Woods v Bate (at 596). Noncompliance with the requirement for the objection to specify the grounds is not fatal to the validity of the objection. In other words the requirement is directory and accordingly an objection does not cease to be an objection on account of its failure to specify the grounds of objection.” Bignold J identified the legislative purpose for requiring grounds of objection to be provided by an objector as follows:

• requiring the differentiation between submissions in support of a DA and those in objection • requiring the provision of grounds of objection, thereby enhancing the decision-making process by giving all parties the benefit of knowing the reasons, and • requiring objectors to provide grounds of objection, thereby encouraging objectors to better understand the DA. Further, Bignold J held that substantial compliance can be demonstrated by the later provision of a more detailed response from the Society, albeit out of time, by applying a purposive construction of the statutory requirement. Conclusions The following conclusions can be derived from Ballina: • An objector to designated development is required to make a submission within the specified period. The submission needs to include two elements: (1) a statement that the person objects to the DA, and (2) the grounds of the objection. • The grounds of objection are not confined and will be interpreted broadly. A ground of objection can relate to the process of consideration of the DA by the consent authority. The inclusion of grounds of objection is a procedural matter, and non-compliance with specifying the grounds of objection is not fatal to the validity of the objection. Substantial compliance may be demonstrated by the later provision of details. Additionally, the question of whether a person who objects to development other than designated development has a right of merit appeal as an “objector” under s 98 of the EPA Act was considered by Cripps J in the NSWLEC in National Trust of Australia (New South Wales) v Minister Administering the Environmental Planning and

Assessment Act (1981) 53 LGRA 37 (National Trust). This case involved a challenge to the development consent granted by the Minister for the redevelopment of the former Treasury Buildings in Macquarie and Bridge Streets in Sydney for a hotel. As part of these proceedings, it was contended that the National Trust was an “objector” and, as such, could (under the then applicable provisions of the EPA Act) require a Commission of Inquiry. It was accepted that the DA in question was not designated development. During the proceedings, the National Trust’s senior counsel conceded that s 98 of the EPA Act does not confer upon an objector to non-designated development a right of merit appeals (p 48). Ultimately, Cripps J held that the reference to “objector” in the provisions relating to inquiries was a reference to an objector to designated development and to no other (p 50). The provisions giving “objectors” an automatic right to require a public inquiry in relation to DAs called-in for Ministerial determination were removed. Even in the National Trust case there was no serious submission that rights of third party merit appeal under s 98 apply to DAs other than designated development.

¶47-140 Principles regarding public exhibition and involvement for development applications The key principles derived from the discussion on public exhibition and involvement for DAs are as follows: Principle 1: The role of public advertisement serves the following significant roles: • it provides a consent authority with the views of objectors • it provides objectors with an opportunity to voice their concerns and, in the case of designated development, found a right of appeal against the consent authority’s decision, and • it enables objectors to identify matters relevant to a DA which may otherwise be overlooked. Unless adequate information is provided in an advertisement, effective

objection will be made difficult and the need to object may not be appreciated. A failure to object may deprive persons of their appeal rights (Scurr, Nelson v Burwood, Ballina). Principle 2: Inadequate advertisements which are insufficient to meet the legislative purpose of giving notice to the public do not amount to substantial compliance as well as strict compliance. As a result, the non-compliance vitiates any ensuring development consent. A defective advertisement has particular significance where objectors have rights of appeal as a defective notification will prejudice the Court’s consideration of an appeal by depriving it of the benefits of views of objectors, by depriving persons potentially of their right to object and may result in objections that are lodged being misconstrued or inadequately informed (Scurr, Centro Properties). Principle 3: Where a notification for designated development, advertised development or specified development is required to contain a description of the proposed development, that description must not be misleading in that it fails to fully advise the public, or by making a limited statement, lulls the public into a false sense of security (Doueihi, Coffs Harbour v Arrawarra). Principle 4: Compliance with the requirements for public exhibition and notification (including the newspaper advertisement, the notice to adjoining owners/occupiers and the sign on the land) is not directory but requires substantial compliance at least, if not strict compliance (Scurr, Centro Properties, Nelson v Burwood, Curac, Maybury). Principle 5: The legislature has carefully distinguished between DAs for designated development and other DAs where lesser requirements for public participation are considered necessary. The public exhibition period for DAs for designated development is intended to be a minimum period of 30 days. This requirement is mandatory (Curac). Principle 6: In establishing whether substantial compliance has been achieved in relation to public exhibition and notification, consideration is given to whether any defects detract from the effectiveness of the notification for the purposes and objectives in the EPA Act or, if applicable, a DCP (Centro Properties).

An important issue in relation to non-compliances with notification requirements is that one cannot be sure that some members of the public would not have lodged objections if the notification requirement had been properly undertaken (Curac). Principle 7: The reference to an incorrect lot number is not a breach in circumstance where the street address was provided and a notice was erected on the land (Curac). An omission of a lot and deposited plan is not a critical omission as there was not a high prospect of a person being misled, but an error in the street name is fatal to the validity of any subsequent development consent (Coffs Harbour v Arrawarra). Principle 8: The requirement to give notice of a DA for designated development to such persons as appear to the consent authority to own or occupy adjoining land (s 79(1)(b) of EPA Act) requires the consent authority to make reasonable enquiries or attempts to ascertain not only the owners of land but occupiers of land. Failure to do so will result in any subsequent consent being invalid (Maybury). Principle 9: Where a consent authority has a policy to notify neighbours or the public of a DA and that policy is regularly applied, it gives rise to a legitimate expectation enforceable at law that notice would be given and representations considered before determination of the DA. Where the EPA Act addresses notification of the public and neighbours and makes provisions accordingly, the general rules of procedural fairness are displaced by the statutory provisions (Somerville v Dalby, Hooper v Lucas, Hornsby v Porter, Nelson v Burwood, Vanmeld v Fairfield). Principle 10: An objector to designated development is required to make a submission within the specified period. The submission needs to include two elements: (1) a statement that the person objects to the DA, and (2) the grounds of the objection. The grounds of objection are not confined and will be interpreted broadly. A ground of objection can relate to the process of

consideration of the DA by the consent authority. The inclusion of grounds of objection is a procedural matter, and non-compliance with specifying the grounds of objection is not fatal to the validity of the objection. Substantial compliance may be demonstrated by the later provision of details (Ballina).

CONSIDERATION AND DETERMINATION OF A DEVELOPMENT APPLICATION ¶48-010 Matters for consideration The process of considering a development application (DA) and the various inputs provided regarding the DA from the public, neighbours, public authorities, outside experts, as well as inputs from the professional staff of the consent authority, requires these inputs to be weighed and balanced, considered and evaluated, and finally converted into a decision by whomever is the consent authority for the DA in question. Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides for a process of decision-making rather than seeking to mandate a particular outcome. This is achieved by requiring a consent authority to consider specified matters before a DA is determined. These were originally referred to as heads of consideration, but are now referred to as evaluation criteria, but they both are directed towards the same task and provide for a comparable process. The original 1979 EPA Act provided for the consideration of a DA in s 90 which applied until its repeal by the Environmental Planning and Assessment Amendment Act 1997 No 152 (1997 Amendments). Thereafter, the provisions for the consideration of a DA are continued in s 79C, which still apply. Section 90 as originally enacted in the 1979 EPA Act provided as follows: “Matters for consideration 90.(1) In determining a development application, a consent

authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application: — (a) the provisions of — (i) any environmental planning instrument; (ii) any draft environmental planning instrument that is or has been placed on exhibition pursuant to section 47 (b) or 66 (1) (b); (iii) any draft State environmental planning policy which has been submitted to the Minister in accordance with section 37 and details of which have been notified to the consent authority; and (iv) any development control plan in force under section 72, applying to the land to which the development application relates; (b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm; (c) the effect of that development on the landscape or scenic quality of the locality; (d) the social effect and the economic effect of that development in the locality; (e) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development; (f) the size and shape of the land to which that development application relates, the siting of any building or works thereon

and the area to be occupied by that development; (g) whether the land to which that development application relates is unsuitable for that development by reason of its being, or being likely to be, subject to flooding, tidal inundation, subsidence, slip or bush fire or to any other risk; (h) the relationship of that development to development on adjoining land or on other land in the locality; (i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land; (j) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system; (k) whether public transport services are necessary and, if so, whether they are available and adequate for that development; (l) whether utility services are available and adequate for that development; (m) whether adequate provision has been made for the landscaping of the land to which that development application relates and whether any trees or other vegetation on the land should be preserved; (n) any representations made by a public authority in relation to that development application, or to the development of the area, and the rights and powers of that public authority;

(o) the existing and likely future amenity of the neighbourhood; (p) any submission made under section 87; (q) the circumstances of the case; (r) the public interest; and (s) any other prescribed matter. (2) A reference in this section to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application.” The current provisions of s 79C are as follows: “79C Evaluation (1) Matters for consideration — general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the DirectorGeneral has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F,

and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. …” Section 79C(1)(a)(iv) enables regulations to be made to prescribe additional matters required to be taken into consideration in determining a DA. The Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) adds to the list of matters requiring consideration in determining a DA as follows: • a requirement to take into consideration the NSW Government Coastal Policy (cl 92) • fire protection and structural capacity of a building for a change of use where no additional building work is involved (cl 93) • for extensions and alterations to a building, the need to upgrade

fire protection measures to conform with the Building Code of Australia (cl 94), and • fire safety issues for a temporary building (cl 94A). Following the enactment of s 79C, the Department of Planning prepared a guide to s 79C providing a checklist of specific considerations under each of the matters in the section, but this guide was subsequently withdrawn. The question as to whether the replacement of s 90 by s 79C (as a result of the 1997 Amendments to the EPA Act) changed the scope of consideration required for a DA is discussed later in the context of the decisions of Carstens v Pittwater Council [1999] NSWLEC 249 (Carstens) and Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 (Centro Properties). The conclusion from these decisions is that s 79C is not a less comprehensive range of matters required to be considered compared to the former s 90. However, it should be noted that s 79C(1) does not use the terms “amenity of the neighbourhood” and “circumstances of the case”, both terms contained in the former heads of consideration under s 90(1) and both terms which have been subject to extensive judicial consideration. The question of what the relevant law and facts relating to a DA are is of significance given the potential for both the law and the factual circumstances to change between the date of lodgment of a DA and the date of determination of a DA.

¶48-020 Sofi v Wollondilly Shire Council In Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 (Sofi), Waddell J in the Supreme Court of NSW held that the relevant law and facts to be applied to a DA are those existing at the date of final determination, and not at the date of lodgment. Sofi dealt with a DA for subdivision at Oakdale under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919).

The proposed development was permissible with consent under the Wollondilly Planning Scheme Ordinance (Wollondilly PSO) at the date of lodgment. The Council refused the DA and the applicant appealed to the Local Government Appeals Tribunal (the Tribunal). Before the Tribunal determined the merit appeal, the Minister suspended part of the Wollondilly PSO and made an Interim Development Order under which the proposed development was prohibited. The suspension contained a savings provision merely saving any accrued right, similar to that contained in s 30(1)(c) of the Interpretation Act 1987 No 15 (NSW). The Court held that the lodgment of a DA did not give the applicant a “right” under the savings provision. A “right” under the savings provision needed to be a specific right vested in a person by reason of the occurrence of an event specified in the repealed enactment or as a result of an act by the individual before the repeal. Waddell J held at p 422 in relation to a planning merit appeal: “In my opinion the provision requires that the appeal be determined having regard not only to the facts but also the law as existing at the time of the hearing.” By the same reasoning, the same principles apply to the consent authority determining a DA, namely that a consent authority should apply the facts and the law as existing at the time of its determination of a DA, not at the time of lodging of the DA.

¶48-030 Legal issues in the consideration of a development application The consideration of DAs raises a range of important legal issues which fall into three categories: (1) the general duty imposed by s 79C (2) the meaning of specific heads of consideration under s 79C, and (3) general principles of administrative law regarding the making of decisions.

Each of these will be examined in turn. As indicated previously, s 79C of the EPA Act replaced the original s 90 in the EPA Act, which applied up until the 1997 Amendments. While some of the specific heads of consideration changed between the two sections, with s 79C being more generalised than s 90, the general nature of the legal obligations remained the same and hence, the judicial consideration of the general duty under s 90 remains applicable to s 79C.

¶48-040 General duty under s 79C The preamble or chapeau to s 79C(1) requires the consent authority to take into consideration such of the listed matters “as are of relevance to the development the subject of the development application”. Thus, the preamble assumes that the listed considerations may not always be of relevance to a particular DA and that a consent authority needs to either establish a listed head of consideration is relevant and then take it into consideration, or alternatively, establish it is not relevant and thereafter not take it into account.

¶48-050 Shoalhaven City Council v Lovell In Shoalhaven City Council v Lovell (1996) 136 FLR 58 (Lovell), the NSW Court of Appeal heard an appeal arising from a successful merit appeal against the refusal by the Council of a DA for subdivision near the Naval Air Base at Nowra. One of the issues in the appeal was that the Land and Environment Court of NSW (NSWLEC) had erred in excluding from consideration the effects of the DA on the Naval Air Base and its use under the then s 90 of the EPA Act (the predecessor provision to s 79C). Mahoney P (with whom Gleeson CJ agreed and Sheller JA substantially agreed) held that the process of identifying what was a relevant consideration in the preamble or chapeau of s 90(1) (and equally applicable to s 79C(1)) was as follows at p 63: “In considering the relevance of considerations of this kind, two questions may arise: whether the considerations can, in a proper

factual context, be relevant to the exercise of the discretion or whether they cannot in any circumstances be so relevant; and, if they can be relevant, whether in the circumstances of the instant case, they are relevant.” Thus, Lovell noted that the process of establishing whether a consideration is relevant under s 79C involves two questions: (1) Is the consideration one which is capable of being relevant in a proper factual context? (2) In the particular circumstances of the matter in question, is it in fact relevant?

¶48-060 Wilson on behalf of Gurrunyar Environment Group v Bourke Shire Council In Wilson on behalf of Gurrunyar Environment Group v Bourke Shire Council [2001] NSWLEC 28, Pearlman CJ in the NSWLEC held that applying the principles in Lovell did not involve a sequential process of making a determination as to relevance first and then second either taking a matter into account if found to be relevant or discarding a matter on the basis that it is not relevant. Pearlman CJ held at paragraph [37] as follows referring to the passage cited previously of Mahoney P in Lovell: “37. In the course of argument, I expressed some misgivings as to whether the Court could, in the absence of appropriate evidence, make the orders sought simply on the basis that issues concerning irrigation agriculture and water allocation were not relevant considerations under s 90(1). On reflection, I have become convinced that my misgivings were justified. This is an interlocutory application in class 1 and no evidence about any of the issues in the appeal has yet been heard by the Court. The Court cannot determine the relevance of particular issues in a vacuum. Rather, the Court should proceed as it usually does — that is, evidence relating to the issues should be furnished, the relevance of the issues in the particular case should be

considered as required by s 90(1), and appropriate weight should be attributed in the Court’s discretion to those issues and the evidence furnished in relation to them. As I respectfully understand the passage from the judgment of Mahoney P, his Honour was saying no more than this — that the issues should be relevant, and if they are relevant, the Court should determine how relevant, that is, how much weight should be attributed to them. The passage from the judgment of Mahoney P does not compel or suggest that the Court determine the relevance of the issues or the evidence in advance of the hearing.”

¶48-070 Hoxton Park Residents Action Group Inc v Liverpool City Council In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349, the NSW Court of Appeal heard an appeal in relation to a challenge to the development consent for an Islamic School at Hoxton Park. The vehicular access to the school was to be provided by the construction of a new roadway and bridge. The roadway and bridge did not require development consent. The appellant submitted that, although the construction of the bridge was not part of the DA, it was an essential element of the proposed development, and a failure by the consent authority to consider the likely impacts of the construction of the bridge invalidated the consent. Basten JA (with whom Giles JA and MacFarlan JA agreed) found that the Council, on its own admission, did not consider the likely impacts of the bridge construction and concluded: • A likely impact of a development under s 79C(1)(b) is one flowing from the development (the subject of the DA). However, if that impact is too remote it may be excluded from consideration. • An alternative approach is that the obligation on the consent authority to consider a matter implies an obligation to consider whether a particular factor does or does not qualify for consideration.

• A likely effect is one which has a real chance or possibility, not one which is more probable than not. • External impacts to the land (the subject of a DA) are relevant to the consideration of a DA. • Impacts may be direct or indirect and include matters which are reasonably the consequence of the development. • The fact that an impact of a development may require assessment and consideration by other processes or under other legislation does not relieve a decision-maker of an obligation to consider matters which may be equally relevant to other determinations. (See paragraphs [44]–[56] for the above.)

¶48-080 Carstens v Pittwater Council The question arises as to whether a consent authority can take into consideration matters that are not included in the list of matters contained in s 79C(1) in determining a DA. This question was addressed in Carstens where Lloyd J in the NSWLEC heard an appeal from a decision of a Commissioner in relation to a merit appeal regarding a DA to erect a dwelling house at Pittwater. The issue arose in the context of whether the Court as consent authority could take into consideration draft Development Control Plans and a Values Statement not otherwise included in the list of matters in s 79C(1). Lloyd J noted that, prior to the 1997 Amendments, such document would have fallen within a head of consideration in s 90(1), namely “the circumstances of the case”, but that there is no equivalent provision in s 79C(1). Lloyd J noted in paragraphs [13]–[14] as follows: “13. The judgment of Sugarman [sic. Should read “Sugerman”] J in Howard Hargrave Pty Ltd v Penrith City Council (1958) 3 LGRA 260, upon which Mr Tomasetti relies, concerned applications for the subdivision of land. Section 333 of the Local Government Act 1919 set out a list of the matters which the Council must take into consideration on any application for approval of a subdivision of

land. The Council sought to oppose the applications upon several grounds of public interest. Public interest was not one of the matters listed in s 333. Sugerman J said (at 262): ‘In my opinion these grounds were not available to the Council, and are not available to the Court, as grounds for refusing the applications. Section 333 is, in my opinion, exhaustive of the considerations which may be taken into account, subject only to the possibility that in particular cases further considerations may be available under some other provision of the Act or the ordinances therein relevant; …’ 14. Sugerman J also said (at 263): ‘It is much more likely that s 333 was intended as an exhaustive enumeration of the matters for consideration, to be added to from time to time by amendment, as in fact it has been added to, as occasions should require.’” Lloyd J then held at paragraphs [20]–[25]: “20. In considering whether the matters listed in s 79C(1) state exhaustively the matters to be considered in determining a development application, I am entitled to have regard to the purpose or objects of the EP&A Act as set out in s 5. Section 5 of the Interpretation Act provides in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. This is not dissimilar to the approach of Else-Mitchell J to the construction of s 313 of the 1919 Local Government Act, in which his Honour had regard to other provisions of that Act and to the context in which the relevant section appeared. The objects of the EPA Act are widely stated … 21. The objects of the EP&A Act serve, in my opinion, to distinguish the present case from Howard Hargrave. That case was concerned with an application for subdivision under the 1919 Local Government Act. That Act did not have a provision which set out clearly stated objects.

22. These objects, in my opinion, can only be given full effect by not adopting a narrow construction of s 79C(1). A narrow construction would exclude from consideration the objects of the Act. For example, one of the objects of the Act is to encourage ecologically sustainable development (s 5(a)(vii)). If s 79C(1) were to be regarded as an exclusive list of relevant considerations it would result in the exclusion from consideration of an important objective of the Act. … I am inclined to the view that s 79C(1) sets out the matters that must be taken into consideration, but does not exclude from consideration other matters not included in those listed and which may be of relevance to the particular development application and which furthers the objects of the Act. … 23. I am confirmed in this view by the Second Reading Speech on the Bill for the Act by the relevant minister (s 34(1)(2) Interpretation Act 1987). I set out the relevant part of the Speech in the Legislative Council by the Honourable J W Shaw MLC (Attorney-General and Minister for Industrial Relations) on behalf of the relevant minister. (The Second Reading Speech in the Legislative Assembly by the Honourable C Knowles, the Minister for Urban Affairs & Planning and Minister for Housing, uses precisely the same language.) ‘Within this context is the streamlining and rationalisation of the criteria embodied in the current section 90 of the Act and applied in assessing development applications. The proposed section 79C contains a reduced and general list of considerations. The ‘public interest’ test is applied in the assessment of applications. This test is consistent with the aims and objectives of the Act. The ‘public interest’ test will provide necessary flexibility for a consent authority to consider matters that may not be covered in the new list of considerations. In fact, it is consistent and complements the Heads of Consideration listed in Section 89 of the Local Government

Act 1993.’ 24. I refer, in particular, to the references in the passage quoted above to ‘a reduced and general list of considerations’; to ‘the public interest test’ which is said to be ‘consistent with the aims and objectives of the Act’; and that any such test ‘will provide necessary flexibility for a consent authority to consider matters that may not be covered in the new list of considerations’. 25. I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. …” Thus, Carstens indicates that the heads of consideration in s 79C(1) are not exhaustive. While a consent authority is required to consider all of the listed matters, it may take into consideration other matters not included in the list of matters but which relate to the objects of the EPA Act. However, a consent authority must still confine its consideration to relevant matters within the scope and purpose of the EPA Act. Issue of onus Having identified what is required to be considered in determining a DA and what additional matters can be considered, the question arises as to whether an applicant bears any onus to establish that a DA should be approved and the role of the courts in determining the weight to be attached to the heads of consideration. In relation to the issue of onus, the following general propositions may be stated: • An applicant needs to provide sufficient information for the consent

authority to make an informed decision. The absence of sufficient information can constitute a basis for refusal of a DA. • Once sufficient information has been provided, there is neither an onus on the applicant to prove why development should be allowed, nor an onus on objectors to prove why development should not be allowed. • There is no general presumption of allowing development which is permissible, but the zoning exercises an influence either of neutral or positively favouring the approval of permissible development. • The task of the consent authority is to take into consideration all of the relevant matters, but the weight or priority accorded to those relevant matters is a matter for the merit judgment of the consent authority, provided that judgment is exercised reasonably and in accordance with the general principles of administrative law. • These general propositions need to be tempered by the later discussion on the application of the precautionary principle, suggesting that a cautious approach should be adopted in evaluating various factors, with conclusions being evidencebased and where inferences or extrapolations are required, they need to be informed by sensitivity analysis. In relation to the issue of the weight to be accorded to the relevant matters of consideration, Lloyd J in the NSWLEC held in Carstens at paragraph [85] as follows: “85. No error of law is involved if there was a misattribution of weight to a relevant consideration. There are numerous statements to this effect in the authorities. In Ladhams v State Planning Authority (1982) 52 LGRA 32, Wells J held (at 35) that if the Planning Appeal Board (of South Australia) gives too much weight to some matter, that may be a mistake of planning principle but not a mistake of law. In Coles v Woollahra Municipal Council (1986) 59 LGRA 133, Stein J, in considering a

submission that the decision of an assessor (as Commissioners were then called) was against the weight of the evidence or that the weight to be attached to portions of the evidence had been misapplied, held (at 140) that if some misattribution of weight had occurred it is not such as to amount to an error of law. In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330, Clarke JA (with whom Hope and McHugh JJA agreed) said (at 334, 335): ‘It is also clear that questions of the weight, or relative significance, to be accorded to particular facts falls for consideration once it has been determined that different conclusions are reasonably open and are themselves questions of fact: Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 4 per Samuels JA. … There was no statutory or other obligation upon the assessor to deal with each of the matters listed in s 90(1) of the Planning Act. He was invested with the power of determining which of the factors mentioned in that subsection were relevant to the appeal being heard by him and he was also entitled to accord to those which he found relevant such weight as he concluded was appropriate.’ I also repeat, in this context, what was said by Mahoney JA in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 277: ‘But, within proper limits, it is for the authority to determine what weight should be given to each of the relevant considerations in the process of weighing them. If quite disproportionate weight is given to one consideration, discretion may miscarry and the decision may be set aside. But subject to such cases, it is open to the authority to decide what weight should be given to each of the considerations.’”

¶48-090 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council

In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, Mason P in the NSW Court of Appeal (with whom Spigelman CJ and Ipp JA agreed) held at paragraph [56]: “Section 79C(1) does not stipulate or imply a hierarchy among its various paragraphs or among the subparagraphs of (a).” Mason P then held at paragraph [57]: “… The decision to give LEP 2000 significant (but not determinative) weight in the circumstances was a matter for his Honour. It raises no legal question, let alone legal error. The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 LGR 24 at 41; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 666). None were, in my view. (It is not suggested that the decision was manifestly unreasonable.)”

¶48-100 Irving v Goulburn Mulwaree Council In Irving v Goulburn Mulwaree Council [2008] NSWLEC 144, Lloyd J in the NSWLEC held at paragraph [32] as follows: “The fact that the commissioner gave determinative weight to a particular provision does not involve a question of law: Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 146; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 278; Attorney General (NSW) v X (2003) 129 LGERA 195 at [57].” Hence, the position is quite clear that it is a matter for the consent authority as to what weight will be attached to relevant considerations and this does not give rise to a question of law, unless the decision is unreasonable. This accords with the general principle that, in making an administrative decision, it is generally for the decision-maker and not the courts to determine the appropriate weight to be given to matters

which are required to be taken into account: see Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at paragraph [15].

¶48-110 Parramatta City Council v Hale — leading case on the general duty of a consent authority The leading case on the general duty of a consent authority in relation to the heads of consideration for a DA is the NSW Court of Appeal decision in Parramatta City Council v Hale (1982) 47 LGRA 319 (Parramatta v Hale). This case was a challenge to the validity of a development consent granted by Parramatta City Council to the Parramatta Sports Club for the redevelopment of Cumberland Oval and parts of Parramatta Road. At first instance, McClelland CJ in the NSWLEC held against the Council. One of the grounds found by McClelland CJ was that the consent authority failed to comply with s 90 of the EPA Act (now s 79C) in that it did not give the heads of consideration the consideration required. The DA in question related to significant upgrading of the home ground of the Parramatta Leagues Club to a new stadium. The proposal was controversial, with significant levels of public support and opposition to the proposal. The parking and traffic impacts of the proposal were key issues. Prior to the Council (as a body) considering the DA, each Council member was provided with a detailed report of the Council officers, which included reports from the Traffic Authority of NSW and the Department of Main Roads. The officers’ report comprised 56 pages, with 166 pages of appendices, and recommended approval of the DA, subject to 11 pages of detailed conditions. When the Council meeting convened, one member moved a resolution to approve the DA subject to a new eight-page set of conditions which were read to the meeting to displace those recommended in the officers’ report. Copies of these new conditions were not provided to members of the Council. A resolution seeking an officers’ report on the new suggested conditions was defeated, and the Council approved the DA subject to the new conditions. Street CJ at p 326 and p 331 held as follows:

“The course of events at that meeting is eloquent of the fact that a group of aldermen, who ultimately comprised a majority at the meeting, had decided outside and prior to the meeting to force through the giving of consent irrespective of matters requiring consideration under s.90(1) — a decision which on that night they successfully carried into effect. Mr Justice McClelland expressed the legal effect of this in terms with which I fully agree — terms which inevitably spell the doom of the formal consent thus forced through the council: ‘In carrying a resolution which left the parking, traffic and access problems which would be created by the stadium totally unresolved, the council, in my view, failed to give to these matters the consideration required by s.90.’ … [p 331] The inescapable fact is that there was no real opportunity afforded to the aldermen present as a group at that meeting to comprehend, let alone give consideration to, the content or significance of the proposed new conditions and there was no opportunity whatever afforded to the council’s officers to consider these and advise the council upon them. Having regard to the demonstrable significance of the changes, I find it impossible to resist the conclusion reached by Mr Justice McClelland that the council failed to give to the application the consideration required by s.90(1). One does not need to look far below the surface to recognize the effect of the new conditions in alleviating the financial burden placed upon the Sports Club by the chief town planner’s recommended conditions regarding parking, traffic and access. In some respects the chief town planner’s recommended conditions were replaced with far less stringent recommended conditions. In other respects the recommended conditions were replaced with what were referred to during the course of argument as little more than ‘pious hopes’.”

Street CJ then held at p 335–336 as follows: “A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration. This is not an inescapable prerequisite inasmuch as, even if no such opportunity was afforded to the council, it may, nevertheless, have adequately understood the relevant implications and properly fulfilled its duty under the section in question. It is not necessary, in the resolution of the present appeal, to delve deeply into authority. The law is clear that a provision such as s.90(1) necessitates, as a precondition to the validity of a council’s decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision. All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court; it need not be shown to be of critical or decisive significance in the council’s decision; on the other hand de minimis non curat lex. In the third place the reference in each to ‘the council’ is to the council as a group; it is the council’s collective state of mind, as found by the court, which will be of critical significance. In the present case it is the first of these grounds that the challengers rely upon; it is contended that the council failed to take into consideration the topics of parking, traffic and access, being topics directly included within the matters the council was bound by s.90(1) to take into consideration. The challenge is of a failure sub modo on the part of the council. Each of these topics

was, technically speaking, dealt within the council’s decision. It is the manner in which this was done which is relied upon as establishing validity. The absence of a reasonable opportunity for a council to understand the significance of the decision about to be made in relation to the mandated matters, followed by a decision which, in material respects leaves the important aspects virtually at large, will go far towards establishing objectively that the council, as a group, did not take those mandated matters into consideration as required by the law. I have no hesitation, in this case, in recognizing that the members of the council as a group did not have a reasonable opportunity of understanding the significance of the material changes that were involved in Alderman Elliott’s new set of conditions. I have quoted some extracts from the chief town planner’s recommended conditions and from those proposed by Alderman Elliott. This may present a misleadingly simple contrast. The aldermen at the meeting had before them the chief town planner’s report with its conditions set out in eleven foolscap pages of single spaced typing. Alderman Elliott either read out verbatim or ‘outlined’ the contents of his conditions set out in eight pages of single spaced typing. Those present did not have the advantage of being able to place the two documents side by side to see the departures. Indeed, even if they had, the mass of the contents is not readily assimilable. In the context of the tension of the events at this critical meeting, it must have been virtually impossible to comprehend them adequately, let alone evaluate them in the light of the mandated matters in s.90(1). During the hearing of the appeal we had the advantage of having the differences identified, analysed and explained by senior counsel. The aldermen had no such assistance. Both the fact and the result of the departure by the council from the carefully formulated recommendations of its own officers, and both the fact and result of its repudiation of the important explicit requirements of the Traffic Authority and the Department of Main Roads, must necessarily attract concern regarding the regularity

and validity of the council’s deliberations and decision. It is difficult to see how a responsible body, properly discharging its duty to the public, could have arrived at the conclusion the council did. I need not go so far as to consider whether the conclusion is, on its face, so grossly unreasonable as to render it void. The unreasonableness in this case serves only as a pointer to the real origin of invalidity, namely that the course of proceedings at the meeting precluded the members of the council as a group from having virtually any opportunity to comprehend and evaluate, from their own resources, or with the aid of the council’s expert officers, the significance of material changes in highly relevant aspects of matters the council was required under s.90(1) to take into consideration. It is but a short step, and I take it again without hesitation, to conclude that the council did not in fact fulfil its statutory obligation to take into consideration the matters specified in s.90(1), insofar as such matters bore upon the important problems of parking, traffic and access involved in this proposal for the sports stadium.” Key elements of this decision The key elements of Street CJ’s decision are as follows: • A prerequisite to taking a matter into consideration is having an opportunity to understand the implications of what is proposed. • Section 79C requires as a precondition to the validity of council’s decision that consideration be given to those heads of consideration which are objectively relevant to the DA. • If a council takes into account irrelevant considerations, it will vitiate the decision. • If a council misdirects itself in law as to the scope or nature of its powers or duties, it will vitiate the decision. • Proof of a failure to comply with s 79C rests with the person challenging the consent.

• The error alleged needs to be a material one that is of critical or decisive significance in the council’s decision. • As the decision is that of a collective body, the council, it is the council’s collective state of mind that is of critical significance. • There is a strong likelihood of invalidity if two elements can be established: (1) absence of a reasonable opportunity of understanding the significance of the decision, and (2) a decision which, in material respects, leaves important aspects virtually at large or unresolved. • To establish a failure to comply with s 79C is not as high a threshold test as to establish Wednesbury unreasonableness. But the unreasonableness of a decision is an indicator that a council failed to understand the significance of its decision and hence, failed to take into account the matters required by s 79C. Moffitt P agreed with the outcome of Street J. Moffitt P identified the matters which, in combination, supported an inference of failure to take into consideration the heads of consideration. These are: • the terms (or lack thereof) of the consent granted which may result in environmental harm and problems because they were not addressed by the consent authority in any real sense • the inadequacy of information before the consent authority, the lack of awareness of relevant matters and the failure of the consent authority to obtain or receive material to better inform itself • the course of the deliberations at the meeting, including major changes without notice to that recommended by expert advice, and • the reasonableness of the consent authority itself and the

reasonableness of its conduct in relation to giving the consent. Moffitt P identified the following features of s 79C’s predecessor: • The obligation is not simply to advert to a relevant matter and then discard it. The obligation is that the consent authority must consider it. • Proof of a failure to consider will be difficult where a collegiate body has before it an officer’s report addressing the issue, or where the issue is uncomplicated and within the general knowledge of the body, or the relevant matters were before the body on an earlier occasion. The terms of the body’s resolution and how it went about doing this may support an inference as to whether a matter was considered. • The obligation to consider carries with it an indirect obligation for a consent authority to acquaint itself with the issue, rather than remain in ignorance. But it does not directly impose an obligation to seek out further information. • The requirement to take matters into consideration in making a decision on a DA has a contemporaneous element in that the consideration must be evident in and reflected in the decision. • In cases where a challenge requires proof of the state of mind of a person or body, that state of mind can be proved by inference from what the person or body does, or says, or omits to say or do. It requires a consideration of the whole of the evidence and the totality of events, even though individual events in isolation would be explicable on the basis of some other state of mind. • The fact that consideration of a matter was given by a caucus or informal body of members of a collegiate group, such as a council, does not constitute consideration by the collegiate body. Reynolds JA, in dissent, adopted a narrow view of both the role of s 79C’s predecessors and of the evidentiary requirement to establish a breach. He held at p 387 as follows:

“The conditions themselves and the voting for and against the amended set contain intrinsic evidence of consideration being given to relevant matters in s 90. It is simply not open to submit that the council failed to give consideration to all the matters in s 90 and this being recognized the submission of the respondents as it was developed during this hearing was refined to a submission that asserted that no consideration was given to representations made by a public authority in relation to the development of the area (s 90(1)(n)), being the letters written by the seven public authorities in relation to the E.I.S. and no consideration was given to matters relating to parking of vehicles, pedestrian access and associated matters. As to the last mentioned matters, it is to my mind unarguable that such matters were taken into consideration having regard to the terms of the chief town planner’s report and recommendations and of the motion that was carried. How then is it maintained by the respondents that nevertheless they were not taken into consideration? The answer is by the assertion that it was not real, genuine or proper consideration — that it was but a purported consideration. And what are the grounds for so saying? The respondents submit that five matters, when examined, show a failure to take one or more of the matters in s 90 into consideration. This leaves aside as a separate matter s 90(1)(n). The five matters are: 1. The history of the matter including material showing the council made assumptions; 2. the action taken by the council to inform itself on relevant matters; 3. the material considered by the council; 4. the course of debate and the proceedings in the council; and 5. the ultimate decision. I propose to examine these matters with minimum repetition of

the facts, which I have tried to state as fully as necessary earlier in these reasons.” Reynolds JA then proceeded to review each of these aspects in some detail. He concluded at p 393 as follows: “What I have done in these remarks is to indicate in a general way the reasons that were available and might well have been given by the council if they were required to do so and did so. If reasons are available, even though some might disagree with them and those reasons are not palpably untenable or specious, it means that the decision under review cannot be said to be unreasonable in the sense that no council doing its duty could have reached such a decision. One could be pardoned for thinking that a council which adopted uncritically the recommendations of its officers was not giving consideration to the matters with which these recommendations dealt but was delegating the responsibility which properly belonged to it. On the other hand, where recommendations as to parking and access are rejected in part and revised in part by the council, it may be possible to say that the council’s decision is unsound but it is difficult, if not impossible, to say that the council did not give consideration to matters of parking and access. I find nothing in the decision which leads me to infer that the body which made it did not take into consideration the matters specified in s 90. It remains to consider on this aspect of the appeal whether, whatever view may be formed about the evidentiary effect of each of the five matters standing alone, the combined effect is such that it is proper to infer that the council did not take into consideration relevant matters in s 90. This is a new case but it needs to be considered for the respondents’ case must depend upon the drawing of an inference from circumstantial facts. I am not unmindful of the fallacy in cases of circumstantial evidence of discarding each evidentiary fact as proving nothing in itself and failing to examine the totality of facts on that account. In

the present context, however, it seems to me that unless, e.g., it is proper to conclude that the council made an assumption as to its power being limited to the imposition of conditions, there is nothing to go towards the making of the web of circumstance complete. Once it is concluded that the determination of the council is not unreasonable in the relevant sense, I am unable to see how it is legitimate to bring the determination to account in examining a web of circumstantial facts. To do so involves the intrusion of a personal view that the decision is disagreed with on the ground that it is imprudent or unsound on the merits. If the determination is one a [sic.] which council acting responsibly could have reached, it surely is an impermissible approach to place in the scales the fact, if it be a fact, that the court disagrees with it.” The dissent of Reynolds JA points to the different approach to the interpretation of the evidence adopted by the majority of Street CJ and Moffitt P in drawing inferences regarding the state of mind in determining a DA. However, the evidentiary challenge in successfully proving a breach of s 79C, even on the reasoning of Street CJ and Moffitt P, is great indeed.

¶48-120 King v Great Lakes Shire Council In King v Great Lakes Shire Council (1986) 58 LGRA 366 (King v Great Lakes), Cripps CJ in the NSWLEC heard a challenge to the development consent granted by the Council for a caravan park at Seal Rocks. The DA proposed sewerage disposal by means of on-site septic tanks with evaporation ponds on adjacent Crown land in a place yet to be determined. This adjoining Crown land was not included in the DA. The applicant in the DA requested that the final design of the sewerage system be considered at the building application stage when leasing arrangements of the Crown land had been completed and an engineer’s report would be available. In conformity with this request, the Council officers’ report did not address the sewerage system. One of the grounds of challenge to the development consent was that

the Council had failed to properly take into account the heads of consideration. Cripps CJ held at p 383–384 as follows: “…I have concluded that the consent was vitiated by error on part of the council in failing to address the consequences to the environment of the sewerage system, a facility integrally linked with the development proposed. The evaporative ponds were a necessary part of the caravan park development. The fact that the development application is not invalid because it did not include the land upon which the evaporative ponds were to be located does not mean the council was entitled to ignore the impact on the environment of the use of that land as part of the development it was assessing. In Pioneer Concrete all members of the High Court stressed the importance and the need to assess the immediate and direct consequences of a development (whether or not those consequences took place on the land the subject of the application). Gibbs CJ and Aickin J, although deciding there was jurisdiction to entertain the application, both recognised the sound town planning principle of considering all environmental consequences before a consent is given. In the instant case the use of lot 457 for a caravan park necessarily required the use of land in the near vicinity for sewage disposal. That matter was not addressed in any of the documents before me other than that it be left for further consideration. [p 384] Condition 11 evidences (if there be any doubt about the matter) the failure of the council to assess adequately all the consequences of sewage disposal. Leaving aside for one moment whether such a condition is authorised by law, it demonstrates the council adjourned, as it were, consideration of that aspect of the development. On the material before me I can only conclude that the question of effluent disposal was not adequately dealt with. …

I am satisfied that a significant aspect of this development, namely the consequences of the rising mains and the 2.5 acres of evaporative ponds in close proximity to the rainforest were not adequately addressed and the failure to address this matter meant the council did not properly discharge its functions under the Environmental Planning and Assessment Act. I have not overlooked the submission that the disposal by evaporative ponds on the site suggested in the development application was not necessarily embraced by the council. But even if that be accepted (and, in my opinion, that is not a realistic way of looking at it), it does not follow that the question of sewage disposal was adequately addressed. If it were not to be disposed of on that land it would, presumably, be required to be disposed of elsewhere and would still require proper environmental assessment. In my opinion, the council should have understood the consequences of sewage disposal before it granted development consent. I should emphasise that this was not a case of a development in respect of which sewage disposal was just a matter of connection to existing mains. The caravan park, on any view of the matter, was proposed to be located in a highly sensitive area and the question of sewage disposal was selfevidently important, a circumstance recognised by the council itself.” King v Great Lakes was in many ways a clearer situation than that considered in Parramatta v Hale, as here the consent authority had not addressed adequately, if at all, a significant component required of the development proposed to be located in a highly sensitive area. In King v Great Lakes, Cripps CJ emphasised that courts should exercise caution in holding that a development consent is invalid due to a failure to properly take into account the heads of consideration. Cripps CJ noted at p 385: “I have taken account of the observations of the Court of Appeal in Parramatta Park. A court will be slow to strike down a development consent and I have regard to the observations of

Street CJ and Moffitt P in which it was said by Street CJ: ‘Of all these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council’s decision; on the other hand de minimus non curat lex. In the third place, the reference in each case to ‘the council’ is to the council as a group; it is the council’s collective state of mind, as found by the court, which will be of critical significance.’” Moffitt P observed (at p 345): “A conclusion by a court finding a breach of s 90 by way of inference is one to come to only after anxious consideration, but when that inference is available and ought be drawn, the court should, in service of the policy which underlines the Act, not hesitate to give effect to the inference it has drawn.” Thus, the courts will be slow to conclude that a development consent is invalid due to the consent authority failing to take into account the heads of consideration, and they will only do so after “anxious consideration”. Where a consent authority does not consider a significant component of a development, but defers that consideration to after the consent is granted, not only is there a potential breach of s 79C, but also, the consent granted may be struck down for an absence of finality and certainty. These two grounds are often mirror images of each other, with the non-compliance with s 79C leading to a development consent being invalid due to an absence of finality and certainty due to a deferral of consideration to a later point in time of a crucial aspect. Such would likely have been the case in King v Great Lakes, and was the case in Cameron v Nambucca Shire Council (1997) 96 LGERA 268 (Cameron v Nambucca), a decision of Talbot J in the NSWLEC, which will be considered later in relation to deferred commencement consents.

¶48-130 Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd The previous decision involved a similar situation to that which was faced by Hemmings J in Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd (1989) 70 LGRA 79 (Jungar Holdings). This was an objector appeal against a development consent for a by-product treatment facility associated with an abattoir. Odour was an issue regarding the DA. The Council granted consent subject to a condition requiring the applicant to comply with the requirements of the then State Pollution Control Commission (SPCC) with details to be provided to the Council prior to release of the building approval. The reason for this condition was stated “to minimise any pollutant emissions and afford some protection to the surrounding rural environment”. Hemmings J held at p 89 as follows: “The Council obviously was satisfied that it had sufficient information to assess the appropriateness of the development proposed in the subject application. Regrettably, I do not share that opinion. In may [sic. Should read “many”] respects, Council as the consent authority did not even attempt to discharge its duty properly pursuant to s 90 to consider matters relevant to the development. That it did not do so is also confirmed by the conditions imposed on the consent. With respect to many matters essential for a proper determination of the application it merely deferred to the expertise of others. In my opinion, the inappropriateness of the Council’s decision is highlighted by condition (b) and the reasons stated for imposing it. Without any attempt to identify the level of odour, the Council purported to approve its emission from the premises and transferred responsibility to the SPCC to ‘minimise’ it in order to afford ‘some’ protection. It is also well-settled that a development consent must be final in the disposition of the application and with reasonable particularity circumscribe the use to which the land may be put pursuant to that consent. The determination of the Council and the conditions

imposed on the consent do not, in my opinion, leave determination of such issues as merely ‘an administrative matter’: see Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 and J Mison v Randwick Municipal Council (Land and Environment Court, 29 August 1989, unreported). In my judgment, each of the above conditions in the subject approval postpones determination of an essential matter for the assessment of impact. Condition (d) also purports to reserve the right to make a further assessment, and is clearly ultra vires. For the above reasons I am satisfied that the Council has left to others the adjudication of matters unresolved by the consent that it has granted, and has abrogated such responsibility: see King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384–385. A development consent subject to the above conditions, in my opinion, is not the granting of a consent at all. …” In Jungar Holdings, the absence of proper consideration was said to be confirmed by inappropriate conditions of consent.

¶48-140 Weal v Bathurst City Council A similar issue to Jungar Holdings was considered by the NSW Court of Appeal in Weal v Bathurst City Council [2000] NSWCA 88 (Weal). This case was a challenge to the validity of a development consent issued for a rail freight terminal at Kelso. A key issue in relation to the DA was noise impacts. The Council had before it competing expert noise advice. The development consent included a condition that the consent shall not operate until the applicant satisfies the Council it has the relevant approvals from the NSW Environment Protection Authority. This case will be further considered in relation to deferred commencement conditions. However, in relation to the heads of consideration, Giles JA (with whom Priestley JA agreed) held at paragraphs [80]–[84], [86], [91] and [95] as follows: “80 The terms of s 90(1) were mandatory: the Council was

obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration (Parramatta City Council v Hale (1982) 47 LGRA 319 at 338–9, 340, 342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (Parramatta City Council v Hale at 335–6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374–5). 81 Importantly, however, in obedience to s 90(1) the Council could not confine its consideration to the impact of the development on the environment, but had to take into consideration all other relevant matters. The Council had to balance possibly competing interests, in circumstances such as those in the present case including the public and private interests in preventing harm to the environment and the public and private interests in permitting gainful use of the land. The Court’s role 82 Mr Weal applied to the Land and Environment Court in Class 4 proceedings, relevantly to review the exercise by the Council of its function as a consent authority. Review is not appeal on the merits. Sufficiently for the present case, the Court was to enquire whether in making its determination the Council took into consideration all relevant matters and no irrelevant matters, and whether in weighing up all relevant matters the Council reached a Wednesbury reasonable decision (that is, a decision not so

unreasonable that no reasonable person could have come to it, see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The Court would not substitute its determination for that of the Council. A determination successfully impugned would be set aside, and it would be for the Council to determine the development application afresh according to law. A court must proceed with caution when reviewing an administrative decision on the ground that the administrative body does not properly weigh up the relevant considerations, lest it exceed its supervisory role by reviewing the decision on its merits (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J). 83 Where there is no direct evidence of the consent authority’s consideration of the development application, it may not be easy for a person in the position of Mr Weal to establish that it failed to take into consideration a relevant matter or took into consideration an irrelevant matter. That will often be established only by inference, and the inference should be drawn only after anxious consideration by the court (Parramatta City Council v Hale at 345; Currey v Sutherland Shire Council at 373). Discussion 84 There is no doubt that the noise impact of the development was a relevant matter for the Council’s consideration, and a significant one. The Council was well aware of its significance to the development application. The Council responded to its significance in part by conditions 31, 51, 59, 65 and 66 in the development consent, but principally by condition 1 of the deferred commencement conditions (‘condition 1’). The conditions in the development consent played a minor part, as the presence of condition 1 itself showed. In the result, the noise impact of the development, including specification of any means of alleviating it, would be regulated by the EPA approval. … 86 In my opinion, while the Council clearly enough adverted to the noise impact of the development, it should be found that it did not

take it into consideration as required by s 90(1) of the EPA Act. … 91 With all due caution, in my view it should be inferred that the Council did not come to a view as to the noise impact of the development or means that might be employed to mitigate the noise impact. It was clear that there would be a noise impact, and that some means of controlling it was required. The Council had an unresolved conflict between Herring/Benbow and the EPA, and it was told that it need not be overly concerned with noise impact because it could leave its extent and how to control it to the EPA: see in particular the Director’s statement, ‘It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA would issue its approval’. It did so. It did not give the development application the consideration required by law, but left the critical matter of noise impact to the EPA: cf King v Great Lakes Shire Council at 384–5; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 at 89; Leichhardt Municipal Council v The Minister (1992) 77 LGRA 64 at 75–6. … 95 Some aspects of the development might have been left for later resolution, consistently with consideration in accordance with s 90(1) of the EPA Act. The landscape plan to which condition 51 referred is an illustration, and such a condition is authorised by s 91(3A) and possibly apart from that provision (see Scott v Wollongong Shire Council (1992) 75 LGRA 112 at 117–8; Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 628–30). But the Council’s immediate and own consideration of the noise impact of the development, including the means of controlling it, was important. The Council had to weigh up all relevant matters calling for consideration and, having done so, determine the development application. Unlike the EPA, its concerns went well beyond protection of the environment, for example to the matters in paragraphs (d) and (r) of s 90(1) — as the letter of 19 February

1998 to the EPA pointed out. How could it exercise its function without such consideration of the critical issue of noise as would permit it to balance the noise impact, as controlled, with all other relevant matters? If it left noise impact to the EPA approval process, it did not know what to put in the scales.” Conclusions In Weal, the following key conclusions may be derived: • The obligation is to take into consideration relevant matters in the heads of consideration. To do so, the consent authority needed to inform itself sufficiently. Taking a matter into consideration is more than simply adverting to the matter. It requires: – an understanding of the matters and their significance, and – a process of evaluation, such as to demonstrate that the matters were considered. • Where a consent authority leaves an unresolved conflict between key experts regarding a matter of significance to the determination, it indicates it did not give the DA proper consideration. Of interest is the significance placed on the second half of s 90(1)(b) of the EPA Act as it existed prior to the 1997 Amendments, namely: “(b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, and means that may be employed to protect the environment or to mitigate that harm”. [Emphasis added] It is noteworthy that s 79C(1)(b) now refers to “the likely impacts of that development, including environmental impacts on both the natural and built environments, and sound and economic impacts in the locality”, but removes the requirement to consider means to protect the environment or mitigate environmental harm. Some store was placed upon the requirement to consider protective or mitigating measures in Weal, Jungar Holdings and Cameron v Nambucca, and

their omission in s 79C is a retrograde step.

¶48-150 Schroders v Shoalhaven City Council In Weal, Giles JA noted that an element of taking a matter into consideration was for the consent authority to understand the relevant matters and their significance. The question of whether satisfying this requirement involves any duty to search out or commission further studies. This issue was considered in Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (Schroders) in the NSW Court of Appeal where Ipp AJA (with the agreement of Spigelman CJ and Sheller JA) held at paragraphs [95], [97]–[98], [101]–[103] and [106]–[107]: “95 The main point made by Schroders in respect of these grounds is that ‘to proceed to a decision without making any attempt to obtain centrally relevant information, where it is obvious that the material is readily available, may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have exercised it’. … 97 According to Schroders, the Council’s decision not to seek external expert advice as to the appropriateness of Fabcot’s1 response was so unreasonable as to invalidate its grant of consent to the development. 98 Schroders relied on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 where (at 170) Wilcox J said: ‘[I]n a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it’.

… 101 Critical to the result in Prasad and the other cases relied on by Schroders was the presence of highly significant (‘centrally relevant’) information that was in existence and available but not considered by the decision-maker concerned. Schroders contended that, by omitting to obtain further comments from GSA, the Council was ignoring available and centrally relevant information. 102 In my opinion, however, the present circumstances are entirely distinguishable from Prasad, Luu v Renevier and Videto. Schroders did not (and could not) assert that there was existing information that was available to the Council but which the Council did not consider. Rather, it was said, the Council should have used GSA2 instead of its own officers to report on whether its concerns had been alleviated. That is a fundamentally different argument that bears no comparison whatever with the argument upheld in Prasad and the other cases to which reference was made. The present case is one of omission to make inquiries through an agency different to that in fact employed. It is not a case of failure to use existing available information. Additionally, I would not categorise the information that would have resulted from the inquiries as centrally relevant, or being of material significance. The matters on which it was suggested GSA should report were of relatively minor importance. The work required was merely to assess whether Fabcot had complied with the Council’s listed and detailed concerns. This is reflected by GSA’s proposed charge of the relatively small amount of $500 to $1,000. 103 Local authorities are not normally obliged to consult with independent town planners, or to solicit independent planning opinions about the appropriateness of the grant or refusal of consent: King v Great Lakes Shire Council (1986) 58 LGRA 366 (at 371). Of course, there may be circumstances where there is a compelling need to make further inquiries, or inquiries through an independent agency, and where failure to do so may be so unreasonable as to render the decision invalid. But no such finding can be made in this case.

… 106 Plainly, in my view, on the evidence and as a matter of commonsense it was open to the Council to rely on its own officers to do the work of assessing whether Fabcot had satisfactorily addressed the Council’s remaining concerns. The Council had, after all, been told by its general manager that this was the most efficient and speedy way of proceeding. As Pearlman CJ said: ‘The position had been reached where the council, in the conventional manner, was required to assess the responses to its concerns provided by Fabcot, and to determine whether the risk of unacceptable social and economic impact had been mitigated. It was entitled to seek planning advice on that issue, and it was not unreasonable for the Council to seek that advice from its own officer rather than from its consultants’. These observations cannot be faulted: see Prasad at 170. 107 Moreover, there is nothing in the material that suggests that the task was not within the competency of the Council staff. As I have mentioned, the work that Schroders said should have been carried out by GSA was not of particular substance or complexity.” The following points arising from Schroders: • A decision of a consent authority made without any attempt to obtain information that is both readily available and central to the decision to be taken is a basis for a finding that the decision is unreasonable (the Prasad principle). • However, the Prasad principle does not necessarily compel a consent authority to commission advice on an issue in question, although there may be circumstances where there is a compelling need to make further inquiries, and if they are not made, the decision may be unreasonable. Footnotes

Footnotes 1

CCH comment: Fabcot was one of the parties to the proceedings, the second respondent and the applicant for the DA. The full title is Fabcot Pty Ltd.

2

CCH comment: These were the independent town planners — Gary Shiels and Associates Pty Limited (GSA).

¶48-160 Centro Properties Ltd v Hurstville City Council The question of the decision-making processes undertaken by collegiate bodies, such as a council, or individual public officials, such as a Minister for departmental head, and the extent to which they can rely upon considerations undertaken by their staff, was considered by McClellan CJ in the NSWLEC in Centro Properties. This case involved a challenge to the validity of a development consent for a cinema and retail complex at Beverly Hills. Some of the claims were based on the alleged failure of the Council to consider certain matters under s 79C, in particular noise effects of traffic. McClellan CJ provided a review of the obligations under s 79C in paragraphs [29]–[37] as follows: “29 The section [namely s.79C] came into force following amendments made to the Act in 1997. The obligations in relation to the consideration of a development application were formerly provided in s 90 of the Act, which provided a more extensive but no less comprehensive statement of matters which councils were required to consider. 30 A council is a collegiate body which may act by delegating its powers to a committee or an officer of the council. A challenge to a decision made by a delegate will involve consideration of the delegate’s processes to determine if the decision is valid. However, when the decision under challenge is that of the council, it is necessary to examine the process of the council in order to determine whether the statutory obligation has been

discharged. 31 The decision-making process of councils was comprehensively considered by the Court of Appeal in Parramatta City Council v Hale (1982) 47 LGRA 319. Although that case involved consideration of the decision-making process pursuant to s 90, the principles are the same with respect to a decision made pursuant to s 79C(1). 32 The issue in Hale’s case was whether the council had considered matters of traffic and parking. Although the matter was raised and relevant conditions had been suggested by the council’s planner, the council decided to delete the conditions and approve the application without determining whether car parking would be provided by any off street facilities. In effect, although the problem of parking was identified it was not resolved. 33 The Court of Appeal upheld the decision of the trial judge and found (by majority) that the council had failed to take into account the matters required to be considered under s 90. … 34 By removing the catalogue of matters provided by s 90, the Parliament has not confined the matters required to be considered by a council. However, identification of the relevant impacts is a task which must be conducted without the assistance of a statutory ‘check list.’ The obligation of a consent authority is to give ‘real consideration’ to relevant matters. 35 When a challenge to a decision is made, the task of a court is to determine whether the challenger has discharged the onus of proving that the council has failed to consider a relevant matter of such significance that it justifies the court’s intervention, taking care to ensure that the review proceedings do not become a review of the merits of the relevant decision: see the discussion by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601. 36 In Weal v Bathurst City Council (2000) 111 LGERA 181, the Court of Appeal divided over a challenge to a development consent granted with respect to a proposed rail freight terminal. At

issue was whether the council had considered the impacts of noise from the proposal. 37 Giles and Priestley JJA came to the view that the council’s discretion had miscarried. Mason P came to the contrary view. However, as Priestley JA makes plain, the principles which govern the approach that a court should take in the event of a challenge were the subject of substantial agreement. A summary of those principles is useful and would include the following: • the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried; • when exercising its decision-making power, an administrative body must give ‘proper, genuine and realistic consideration’ to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 2913 at 292; Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient: Zhang at NSWLR 601; • a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues: Hale at LGRA 319; • legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development; • generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it; • when a challenge is based upon Wednesbury unreasonableness a stringent test is applied. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. The decision must be devoid of plausible justification: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; Minister for Urban Affairs

and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31; • when it comes to a consideration of whether the decisionmaker has properly weighed up relevant considerations which it has itself identified, a court must proceed with caution ‘lest it exceed its supervisory role by reviewing the decision on its merits’: Minister for Aboriginal Affairs v PekoWallsend Ltd (1986) 162 CLR 24 at 42; • where there is no direct evidence of a consent authority’s consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: Hale; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373; • although the decision-maker ‘can take account of a relevant consideration by reference to a previous decision … this does not mean that it does not have to address the issue itself’ and the previous decision must ‘be enlivened in the consideration of the application before it for decision’: Currey at LGERA 374 per Stein JA (with whom Mason P and Handley JA agreed).” Interestingly, McClellan CJ referred to the differences between s 90 as originally enacted and s 79C. He found that s 79C was “no less comprehensive” than s 90 and that, in truncating the list of matters originally in s 90, Parliament had not truncated the matters required to be considered. He suggested that the checklist of matters originally in s 90 is, in effect, fully embraced within the broader categories in s 79C of the need to consider means to protect the environment or mitigate environmental harm, presumably on the basis that a further, genuine and realistic consideration of the likely impacts of a development must include consideration of mitigation measures. McClellan CJ’s judgment provides a useful summary of the key principles regarding s 79C.

The Council sought to rely upon the consideration of noise impacts by the Council staff in preparing the Council officers’ report on the DA as proof that it had considered this issue. McClellan CJ held at paragraphs [44]–[56] as follows: “44 The first and second respondents submit that Ms Christy’s consideration of the noise impact issue from increased on-site parking was sufficient to satisfy the Council’s statutory obligation under s 79C of the EP&A Act to consider that matter. To support this proposition, the first and second respondents rely largely on the Carltona principle. The Carltona Principle 45 The first and second respondents submit that the principle derived from the decision in Carltona allows a council to rely on its officers to consider matters that the Council itself is obliged to take into consideration when determining development applications before it. The principle, first identified in war time, provides that where an administrative function has been entrusted to a minister but has been performed by an official employed in the ministry or the minister’s department, the minister is entitled to rely on that person’s decision in relation to the relevant function. The law does not regard there as having been a delegation of power. Instead, the relationship is a type of agency (PekoWallsend at CLR 37–38) whereby an officer is the vehicle through which a ministerial power is exercised, although the minister remains responsible for that official’s actions or conclusions. In Carltona, Lord Greene MR articulated the rationale for this socalled ‘alter ego’ principle in these terms (at All ER 563): ‘In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them … It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon the ministers and the powers given to

the ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible … The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.’ 46 As Wilson J said in O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 13, Lord Greene MR was referring to ‘the necessity in modern government for the shared performance of duties short of delegation’. In Peko-Wallsend, Mason J said (at CLR 38): ‘The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.’ 47 In Peko-Wallsend, the High Court accepted that in relation to a minister exercising administrative functions he or she will have not only actual knowledge of relevant matters but, in addition, constructive knowledge of matters known by officers of that minister’s Department. In Bushell v Environment Secretary [1981] AC 75 at 96, Lord Diplock said that the ‘collective knowledge technical as well as factual of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his expertise.’ 48 Counsel for the applicant disputed the relevance of the Carltona principle to this case, principally arguing that it is largely confined to ministerial responsibilities. Indeed, in Carltona itself,

Lord Greene MR’s comments were directed to ‘the functions which are given to Ministers’ (at All ER 563). 49 In Judicial Review of Administrative Action (2000), Aronson and Dyer state that the justification for employing the Carltona principle is not the private law principle that anyone can act through their agent, but is instead based upon the following two reasons (at 261): ‘First there is the argument of necessity. Reference is made to the impossibility of Ministers, in particular, being able to attend personally to the huge range of tasks statutorily imposed on them unless they can either delegate or act through an agent. Secondly, a Minister who acts through departmental officers is still accountable in Parliament, and can exercise control and supervision of their officers.’ 50 This first reason was referred to by Mason J in Peko-Wallsend, where his Honour commented (at CLR 38): ‘The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.’ 51 In R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 at 195, Staughton LJ quoted with approval Mason J’s judgment in Peko-Wallsend to support the proposition that the Carltona principle is limited to cases of administrative necessity. Staughton LJ’s decision was approved on appeal (R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531 at 566). 52 The second justification for the Carltona principle identified by Aronson and Dyer can be traced back to a decision predating Carltona. In Local Government Board v Arlidge [1915] AC 120, it was held that a decision of the Local Government Board could be

made by an anonymous departmental official in the Board’s name, the Court noting that Ministerial responsibility is a sufficient safeguard of this practice. The idea that ministers remain constitutionally responsible for any conclusions reached by their officers as at least a partial justification for the Carltona principle was also referred to by Gibbs CJ in O’Reilly v Commissioners of the State Board of Victoria (1983) 153 CLR 1 at 11. 53 It is apparent that persons other than Ministers have been judicially recognised as being in an analogous position, including commissioners (Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340 at 371) and a university senate (Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723 at 733). 54 Hodgson JA recently made mention of the possible application of the Carltona principle to the decisions of a local authority in Hill v Woollahra Municipal Council (2003) 127 LGERA 7. His Honour decided that he did ‘not need to rule on whether detailed consideration by a council officer absolves individual members of the council from addressing questions, in cases where it is the council itself rather than some delegated person or body that makes the relevant decision’ (at LGERA 25), but nevertheless stated (at LGERA 25): ‘I would comment, however, that members of a local council are not required individually to pursue every possible aspect of questions such as those raised by cl 18, but can rely on conclusions drawn by qualified officers such as engineers … and town planners …, and it is open to members of a council to accept or reject such conclusions.’ 55 In my opinion, the Carltona principle is confined to the circumstances where an officer exercises the decision-making power of the person or body given the responsibility for making the decision. Although the principle was confirmed in wartime and may have to be, at least in Australia, reconciled with a diminishing acceptance of responsibility by ministers for failure by their departmental officers, in my opinion it does not extend to

decisions of local authorities. In the absence of the delegation of the decision-making function to an officer, the corporate body must itself consider the issues relevant to the development application before it. It may be informed about those issues by the officer’s report which may not, and often will not, disclose all of the information considered by the officer and his or her complete reasoning processes. However, as Moffit [sic.] P explained in Hale (at LGRA 346): ‘While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers. Accordingly it is open to it to adopt such a recommendation, provided in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant s 90(1) matters, as earlier discussed.’ 56 In the present case, the deliberations of the officer in relation to car noise were never included in a report and were never communicated to the councillors. Accordingly, they are in my view irrelevant and cannot assist in understanding whether the Council itself discharged its obligation to consider relevant matters.” In essence, the Council argued that because its officers had considered a matter that the Council was required to consider, the consideration by the Council officer can be relied upon by the Council as consideration given by it. McClellan CJ held that the Carltona principle does not apply to decisions of the Councils. He held that a Council must itself consider the relevant matters required but that it may be informed about those matters by its officers’ reports. The officers’ report does not need to include all matters considered by the officers or the officers’ complete reasoning, but the report does need to address the issue, at least by means of a summary presumably identifying why it is a relevant issue, whether the impacts are considered reasonable, and/or how the impacts are to be mitigated or avoided. But, if the officers’ report is silent on a particular issue, then no matter to what extent the officers considered a matter, the Council could not have considered it.

In Centro Properties, McClellan CJ held that the Council had failed to consider the noise impacts of traffic, which was a fundamental issue. As a result, the consent was held to be invalid. Footnotes 3

CCH comment: ‘‘ALD’’ is the abbreviation for Administrative Law Decisions.

¶48-170 Limited scope of expert reports commissioned by a person challenging a consent The evidentiary problems of seeking to prove that a consent authority failed to take into account the heads of consideration, or that a decision was unreasonable, have been noted previously. Clearly the initial source is evidence relating to how the decision was taken, derived from the consent authority’s files or from testimony of those present at relevant meetings. Another source often sought to be used are expert reports commissioned by the person challenging a consent. The limited scope of these was noted by Pain J in the NSWLEC in Woolworths Ltd v Wyong Shire Council [2005] NSWLEC 400 at paragraphs [165]–[168]: “165 As the parties have sought to rely on expert town planning evidence on this and other issues it is necessary to consider whether such evidence is admissible in judicial review proceedings. 166 In King v Great Lakes Council (1985) 58 LGRA 366, Cripps J stated in judicial proceedings at 371: ‘I reject the submission that in such a challenge as is before me expert planning material is not admissible unless it is established that that material was actually before the council when it determined the matter or was deemed to be before the council because it was contained within council’s files at

that time. In my opinion, evidence is admissible to establish what a council, in the proper discharge of its duty, ought reasonably to have done in the course of the decisionmaking process. Where, as here, the breach alleged is the failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. That is to say, evidence is admissible as to what a council acting reasonably ought to have done. It may be accepted that councils are not normally obliged to consult with independent town planners, or to solicit independent planning opinions about the appropriateness of the grant or refusal of consent. But that circumstance does not preclude the admission into evidence of what a council, acting reasonably, ought to have done with respect to a particular development application. To understand the basis and validity of the challenge, the court needs to understand the environmental consequences of the action or inaction of the council.’ 167 In ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190, Priestley JA (with whom Kirby P and Samuels JA agreed) considered at 204 that the scope of an expert’s evidence in judicial review proceedings may be limited to an opinion whether, on the materials before the council, a proper planning decision could be made. Further, Priestley JA stated at 205 that: ‘if such evidence … is indeed admissible in such a case, a condition for its admissibility must be that the opinion given in evidence must be based on a full understanding of the materials present to the decision-maker’s mind at the time when the decision was made.’ 168 In Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13 July 1993, unreported) Talbot J considered these and other cases and identified six circumstances in which the Court could go beyond the material actually before the council. Talbot J stated at 10: ‘In exercising its function of judicial review this Court is not

entitled to go beyond the material before the consent authority except to the limited extent already discussed (see King v Great Lakes, Hastings and ULV v Scott). Trespass into the field of merits is forbidden as one can see from the decision in Minister for Aboriginal Affairs v Peko Wallsend Ltd and Others 162 CLR 24 at 40–42 and Chan Yee Kin v The Minister for Immigration and Ethnic Affairs 169 CLR 379 at 391 and 392. The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows: — 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council. 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witness to explain what was before the council. 6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. (Prasad v The Minister for Immigration 65 ALR 549 at 563 Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors No. 40033 of 1985 Stein J 3 October 1985 Unreported and Hale).’” The summary by Talbot J in Caldera provides a clear outline of the limited circumstances in which expert evidence may be admitted in judicial review proceedings relating to failure to comply with s 79C or for challenges based on unreasonableness.

Given the onus for establishing a failure to comply with s 79C rests with the person challenging a consent, the task for a challenger has been outlined by Basten JA (with whom Handley JA and Hunt AJA agreed) in the NSW Court of Appeal in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 (Kindimindi) at paragraph [80] as follows: “80 In the present case it was necessary for the Appellant to identify some matter specified in s 79C, or otherwise necessarily implied from the scheme of the legislation, as a mandatory consideration, and then to demonstrate that it had not been taken into account. In the absence of an egregious omission in the decision, and where the Council has substantially adopted recommendations made to it following a careful analysis by its expert consultants, such a task will be difficult …” In Centro Properties, McClellan CJ identified a series of principles from the decision in Weal, one of which was that, in exercising its decision-making powers under s 79C, a consent authority must give the matters “proper, genuine and realistic consideration” (in the words of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 219). The applicability of this test was cautioned by Basten JA in Kindimindi lest it be converted into a merit review of the decision under challenge. Basten JA (with whom Handley JA and Hunt AJA agreed) held at paragraphs [74]–[79] as follows: “74. … the Appellant cast its argument in terms that they were required to give ‘proper, genuine and realistic consideration to the merits of the case’. That terminology is taken from the judgment of Gummow J in Kahn [sic. Should read “Khan”] v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291, reiterated in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483. However, this terminology should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. That kind of challenge must be assessed on manifest unreasonableness grounds: see Minister for Aboriginal Affairs v Peko Wallsend Ltd at 41 (Mason J) and see now Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR

1165. 75. The dangers in giving too much weight to qualifying terminology in this area of judicial review were noted by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186E: ‘These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in [Peko Wallsend], to matters which the decision maker was obliged to take into account.’ 76. In Weal v Bathurst City Council (2000) 111 LGERA 181, Mason P, although ‘attracted to’ the language adopted by Gummow J in Kahn [sic. Should read “Khan”], adopted a constrained approach to review of a council’s decision-making process. On the other hand, Giles JA (with whom Priestley JA agreed) stated at [80]: ‘Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration …’ 77. This latter formulation appears to treat identification of the correct test as a matter of construction of the clause ‘take into consideration’ in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole, with whose reasons Mason P and Sheller and Powell JJA agreed. 78. The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council (2001) 51 NSWLR 589 of the language of Gummow J in Kahn [sic. Should read “Khan”]. Although there is reference to the passage in Bruce v Cole (at [62]), at [64] the Chief Justice noted, by reference to

Parramatta City Council v Hale at p 339, that ‘mere advertence to a matter required to be taken into consideration is not sufficient’. The reference in Hale, at p 339, in the judgment of Moffitt P read as follows: ‘It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration.’ 79. So much must be accepted: the danger is that adoption of the epithets such as ‘proper, genuine and realistic’ consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. Adoption of the principles set out by McClellan CJ in the Land and Environment Court in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37], to which this Court was referred by the Appellant, should be applied subject to a similar caution.” A similar caution was expressed by Basten JA in Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at paragraphs [77]–[78] and by Pepper J in The Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17 at paragraphs [74]–[77]. In light of these cautionary remarks, the required test is that expressed in Weal rather than the more expansive test of a “proper, genuine and realistic consideration”.

¶48-180 Hill v Woollahra Municipal Council — challenge to the validity of a consent The issue of the level of detail required at a development consent stage was considered in Hill v Woollahra Municipal Council [2003]

NSWCA 106 (Hill v Woollahra Municipal Council), an appeal regarding a challenge to the validity of a consent. In that case, Hodgson JA (with whom Ipp JA and Davies AJA agreed) held at paragraph [58] in reference to a requirement in cl 18(1) of the Local Environmental Plan to have regard to certain identified effects of any excavation: “58. Turning to the insertion of Conditions 50 and 51, in my opinion this does not require or suggest a different result. In my opinion, the insertion of those conditions has to be evaluated having regard to the two stages of approval for a development involving the erection of a building. First, there is the obtaining of a development consent from the Council, under s.80 of the Act, at which stage there need not be detailed plans and specifications of the proposed building. Second, there is the obtaining of a construction certificate from the Council or accredited certifier under s.81A of the Act, this being a certificate to the effect that work completed in accordance with certain plans and specifications will comply with the requirement of regulations referred to in s.81A(5) (see s.109C(1)(b)). At the stage of giving development consent, the Council could make the assessment that, consistently [sic.] with the requirements of cl.18, provided certain guidelines are followed and provided the Council or an accredited certifier is satisfied by a subsequent report by a qualified engineer that construction in accordance with detailed plans and specifications would not adversely affect the neighbourhood, then the development approval could be given. In my opinion, this is in substance what happened here, and no failure to address the cl. 18 questions is shown.” The decision in Hill v Woollahra Municipal Council indicates that, in considering the level of information required at the DA stage for building work that will also require a construction certificate, the consent authority can grant development consent without requiring detailed plans and specifications, provided it is satisfied that guidelines are followed and satisfactory plans and specifications are approved at the construction certificate stage. This recognises that the level of detail and documentation required at the DA stage needs to be fit for the purpose of the consent authority being able to reasonably

assess the heads of consideration under s 79C and any other statutory requirements, without requiring full construction and engineering plans and specifications.

SPECIFIC HEADS OF CONSIDERATION UNDER S 79C AND KEY PRINCIPLES REGARDING THE CONSIDERATION AND DETERMINATION OF A DEVELOPMENT APPLICATION ¶49-010 Any Environmental Planning Instrument to be considered Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) requires a consent authority to take into consideration the provisions of an Environmental Planning Instrument (EPI) relevant to a development application (DA). This provision needs to be read in the context of s 31 (which permits an EPI to prohibit development), s 76B (which provides that if an EPI provides that development is prohibited, a person must not carry out that development) and s 77(A) (which provides that the DA provisions in Div 2 of Pt 4 only apply to development that is permissible with consent). Hence, the requirement to take into consideration the provisions of an EPI does not add a discretionary element to the powers of a consent authority in relation to development which is prohibited by an EPI. However, s 79C(1)(a)(i) raises the following issues: • The consent authority is required to have regard to any other provision of an applicable EPI, even when they do not amount to a prohibition, a development standard, or a pre-condition required before a DA is determined. • For development that an EPI provides is permissible with consent, the issue is raised as to whether the fact that the development is

permissible with consent creates a presumption in favour of approval or whether it is neutral. • For development that an EPI provides is permissible with consent, the issue may be raised by either the consent authority or submissions by third parties that the site is unsuitable for the DA or, at its strongest, that (in effect) the zoning of the land that makes the development permissible with consent is wrong.

¶49-020 St Ives Bus Services Ltd v Ku-ring-gai Council In St Ives Bus Services Ltd v Ku-ring-gai Council (unreported decision of Lloyd AJ in the Land and Environment Court of NSW (NSWLEC) No 10368 of 1995, 15 November 1995) (St Ives Bus Services v Kuring-gai), Lloyd AJ determined a merit appeal for a DA relating to a bus depot at St Ives where the site was zoned Special Uses. The Council argued that the site was inappropriate for a bus depot and had commenced action to rezone the land, but that such rezoning had not reached a stage where it was a head of consideration. Lloyd AJ made a ruling early in the proceedings that the process of rezoning was neither a relevant nor appropriate consideration. He held: “Early in the proceedings I made a ruling that the site’s history was relevant, but that the assessment of the land by CALM1 and the processing of the rezoning were neither relevant nor appropriate considerations. The starting point for the appeal is that a bus depot is a permissible use on the site. How the zoning came about is of no moment. … The starting point for this application is that the zoning of the site allows it to be used for a bus depot. The zoning does not by itself justify the application which has to be assessed against s 90 of the Environmental Planning and Assessment Act 1979, but it reduces the force of arguments that the site is intrinsically unsuitable for a bus depot and should be used for bush regeneration.” Footnotes

Footnotes 1

CCH comment: “CALM” refers to the former NSW Department of Conservation and Land Management

¶49-030 BGP Properties Pty Ltd v Lake Macquarie City Council In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 (BGP Properties), in relation to the question of the weight of the zoning of land in the determination of a DA, McClellan CJ in the NSWLEC held, at paragraphs [115]–[119]: “Significance of the zonings 115. The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community’s understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today. 116. Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable. 117. In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to

the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR (NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EPA Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118. In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 119. However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.” It appears that, in taking into consideration the provisions of any applicable EPI in determining a DA, the starting point for a consent authority is the zoning and hence, weight must be accorded to the zoning, but the fact that a particular use may be permissible is a neutral factor. Generally, there is an expectation that permissible development would be approved subject to a specific assessment of impacts. The more specific the zoning is and the more confined the range of permissible uses, the greater the weight to be accorded to achieving the objects of the EPI in question. But there may be circumstances where, due to the age of the zoning and the need to assess development based on contemporary standards, the weight accorded to the zoning will be less. Thus, at best it could be said that there is a mild presumption to approve permissible development, but the extent of the weight to be accorded to the zoning can vary significantly.

¶49-040 Any proposed Environmental Planning Instrument to be considered Section 79C(1)(a)(ii) of the EPA Act requires a consent authority, in determining a DA, to take into consideration the provisions of any proposed EPI. It, however, limits the scope of this requirement to only proposed EPIs which meet two requirements: (1) the proposed EPI is, or has been, the subject of public consultation under the EPA Act, and

(2) the proposed EPI has been notified to the consent authority, but does not include a proposed EPI that the Director-General has notified to the consent authority, or that has been deferred indefinitely, or that has not been approved. The first of these requirements is clear. The proposed EPI to be considered under s 79C(1)(a)(ii) needs to have commenced public consultation under the EPA Act. This would include the consultation in relation to a proposed State Environmental Planning Policy (SEPP) under s 38 or the community consultation for a proposed Local Environmental Plan (LEP) under s 57. The second requirement recognises that proposed EPIs may be prepared and processed by bodies other than the consent authority for a particular DA. This includes circumstances where the consent authority for a particular DA is not the council, or where the council is the consent authority and the proposed EPI is either a proposed SEPP or, in the case of an LEP, the relevant planning authority is not the council. Hence, in those circumstances the consent authority needs to have been notified of the proposed EPI for it to be considered. A proposed EPI is not required to be considered if the Director-General has notified the consent authority that it has been deferred indefinitely or that it has not been approved. The question of how a consent authority is to consider a draft EPI and any rules governing such consideration has been the subject of judicial decision. The issue is important in that the grant of a development consent inconsistent with a proposed EPI may effectively frustrate or subvert the provisions of the proposed EPI. Equally, it may significantly affect the rights of applicants, particularly if the proposed EPI, if made, may result in the applicant’s DA being prohibited as a matter of law and hence, legally incapable of approval. The law under which a DA is determined is the law as it exists at the date of the final determination and not the date of lodgment of the DA (see Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 (Sofi v Wollondilly)). Therefore, a DA when lodged may be legally permissible but on the date of determination it may be legally prohibited if a new EPI is made in the intervening period so prohibiting the proposed

development. It is not an unheard of circumstance that a planning authority proposes a new EPI specifically to prohibit a DA lodged or likely to be lodged. Likewise, the news of a proposal to alter an EPI with the effect of prohibiting a class of development may prompt applicants to bring forward DAs to seek to beat any such prohibition coming into force. Because of the effects of prohibitions, proposed EPIs have a significant impact on DAs being prepared, lodged or considered while a change in the applicable EPIs is under consideration. These matters involve a careful balance between the rights of applicants and the community at large and hence, the courts have sought to delineate some clear principles as to how the provisions of s 79C(1)(a)(ii) are to be applied. However, if a proposed change to an EPI does not meet the two requirements in s 79C(1)(a)(ii), then it is not required to be considered under that head of consideration. It may, however, still be considered under the broader “public interest” head of consideration in s 79C(1)(e).

¶49-050 Coty (England) Pty Ltd v Sydney City Council The leading case on the consideration of a draft EPI is Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty). This case was a decision of Hardie J in the Land and Valuation Court of NSW in relation to a merit appeal against the refusal by the Council of a DA for a substantial addition to a factory and warehouse at Surry Hills under the County of Cumberland Planning Scheme Ordinance (County Scheme) and the former Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919). The DA was refused by the Council on the grounds that the site was proposed to be rezoned in the Council’s draft scheme as residential from its then zoning of business and commercial under the County Scheme. In the County Scheme, there was no equivalent head of consideration for a DA to s 79C(1)(a)(ii) of the EPA Act. Rather, the question of the consideration of draft planning scheme related only to the heads of consideration of circumstances of the case and the public interest. Hardie J dismissed the appeal and held at p 125–126 as follows:

“It is important, in the public interest, that whilst the respondent council’s local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl. 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation. An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned ‘Residential — Class C’. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision [p 126] on a set of facts substantially different from that existing when the council dealt with the matter. The above considerations satisfy me that it would not be in the public interest to permit the erection of the additional premises proposed, and thus to disturb the status quo. The public interest in that direction, in my view, clearly outweighs any countervailing public advantage or benefit that would be gained from the removal at this stage from the subject land of sub-standard and unsightly residential terraces and the erection in their place of a modern industrial building, and also outweighs the private rights and interests of the appellant in the development of its land at this

stage so as to make the most effective and economic use of the land for the purposes of the appellant’s business.” Thus, in Coty, Hardie J held that in determining a DA while a draft plan was under consideration, it is important not to make a decision which would have the effect of making more difficult the ultimate decision as to the form of the draft plan. The Court considered that it should as far as possible, make decisions consistent with the draft plan in the course of preparation. Subsequent to Coty, the courts have adopted a more nuanced approach to the consideration of a draft plan, according greater weight to a draft plan where the making of which is imminent and certain.

¶49-060 Terrace Tower Holdings v Sutherland Shire Council In Terrace Tower Holdings v Sutherland Shire Council [2003] NSWCA 289 (Terrace Tower Holdings), the NSW Court of Appeal heard an appeal from a decision of Cowdroy J on a merit appeal relating to a bulky goods retail centre. Prior to the determination of the DA, a new LEP (Sutherland Shire LEP 2000 (LEP 2000)) repealed the previous LEP (Sutherland Shire LEP 1993 (LEP 1993)). But LEP 2000 contained a savings and transitional provision in cl 6(2) as follows: “Despite Clause 4(1), local environmental plans (including Sutherland Shire Local Environmental Plan 1993) and deemed environmental planning instruments, as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made.” The proposed development was permissible under both the LEP 1993 and the LEP 2000, but the LEP 2000 included a development standard requiring that individual bulky goods retailers have a minimum gross floor area of 1,000m2, whereas no such standard was included in LEP 1993. The DA provided for individual tenancies between 51m2 and 2,641m2.

Mason P (with whom Spigelman CJ and Ipp JA agreed) held at paragraphs [39]–[57]: “39 The complaint raised … concerns the status afforded to provisions of LEP 2000. The appellant submits that the primary judge erred in law in the weight he gave to LEP 2000, treating its provisions ‘as if they were certain and imminent because LEP 2000 [had] been gazetted’ by the time of the hearing in the Land and Environment Court. 40 As regards LEP 2000, his Honour said that he treated it as one of the matters for consideration in the environmental assessment of the proposed development ([16], [17], [66]), but not as something that could be given determinative weight ([72]). It is clear that Cowdroy J considered himself entitled to give LEP 2000 significant weight because it had come into force (see [14]–[16]). This is the nub of the asserted errors of law. 41 LEP 1993 and LEP 2000 had substantially similar provisions relating to the proposed development. … 42 The one substantial difference was that LEP 2000 alone required each individual bulky goods retailer to have a minimum gross floor space of 1000m2 (cl 51(2), which is in Part 5 of LEP 2000). Cowdroy J recognised that cl 51(2) was the only difference of significance relevant to the site (see at [53]). 43 Had this last mentioned provision been considered to be directly applicable according to its terms there would have been no scope for approving the proposal. Nor would there have been any need to consider the appropriateness of giving consent in the circumstances. Yet this is exactly what Cowdroy J proceeded to do, as he contemplated the weight that should be given to the principle against small retailing sites expressed in cl 51(2) of LEP 2000. The key finding at [64] states this explicitly. 44 As required by the transitional provision, Cowdroy J considered the weight to be given to this factor having regard to the fact that LEP 2000 had been made and gazetted by the time that the Court came to address the proposal.

45 His Honour also applied a stream of caselaw in the Land and Environment Court addressing two related situations: (1) transitional provisions similar to cl 6(2); (2) relevant draft environmental planning instruments that have been placed on public exhibition and which are therefore required by s79C(1)(a)(ii) to be taken into account. 46 The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the draft exhibited instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were ‘certain and imminent’. This approach has long been adopted by the Land and Environment Court and its predecessors, the Land and Valuation Court and the Local Government Appeals Tribunal (see Ward v Warringah Shire Council (1963) 10 LGRA 114 at 119–120; Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201–2; Mathers v North Sydney Council [2000] NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]–[37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297–8). See also Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 62 LGRA 346 at 353–4. 47 The principles are well summarised by Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138, a decision cited by Cowdroy J (at [14]). Pearlman J said: ‘33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at

202; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref’s evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case.’ 48 Cowdroy J stated his acceptance of these principles at [14]– [17]. 49 The appellant submitted that the stream of authorities should be overruled, because they reverse the clear drafting intent of provisions such as cl 6(2) of LEP 2000. I disagree. 50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s 79C(1)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight. 51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as

the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(1)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. ‘Imminence’ indicates close temporal proximity of application, but stops short of ‘presence’ or ‘arrival’. 52 I am unpersuaded by the submission that his Honour misdirected himself when he said (at [16]) that ‘The only consequence of gazettal [of LEP 2000] is that rather than being a draft, LEP 2000 now prevails’. This sentence should not be read in isolation, as the appellant effectively invites the Court to do. Throughout the judgment Cowdroy J had cited and applied provisions of LEP 1993 on the basis that it was the directly applicable planning instrument that was in force at the date the development application was lodged. His Honour had previously indicated acceptance of the earlier authorities, including Pearlman J’s decision in Architect Haywood & Bakker Pty Ltd, as entitling him to place ‘significant weight’ upon a proposed draft local environment plan. The sentence seized upon by the appellant should be seen as no more than a statement that LEP 2000 had proceeded beyond being a draft, to the status of a gazetted planning instrument. 53 The relationship between LEP 1993 and LEP 2000 was correctly stated in the next paragraph of the judgment [emphasis added]: ‘17. Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993 although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC

209).’ 54 When Cowdroy J addressed the planning issue, he treated cl 51(2) of LEP 2000 as a relevant matter for consideration (at [66]), but not something that could be given determinative weight (see at [72]). His Honour weighed the competing evidence of the experts as to the reasonableness of the minimum gross floor space standard, preferring to uphold and apply it on its merits, but not as a mandated prescription (see at [67]–[72]). 55 Cowdroy J was entitled to reach these conclusions and to apply them in his ultimate assessment of the proposal. 56 Section 79C(1) does not stipulate or imply a hierarchy among its various paragraphs or among the subparagraphs of (a). This was common ground in the appeal. 57 The transitional provision’s requirement that LEP 2000 is to apply ‘as if … exhibited but … not … made’ does not prevent the consent authority from giving weight to such of its provisions as are pertinent to a proposal. The decision to give LEP 2000 significant (but not determinative) weight in the circumstances was a matter for his Honour. It raises no legal question, let alone legal error. The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account (Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 666). None were, in my view. (It is not suggested that the decision was manifestly unreasonable.)” Conclusions Thus, the following conclusions may be derived from Terrace Tower Holdings: • A significant weight is to be accorded to a draft plan by a consent authority in determining a DA if the making of the draft plan is perceived to be certain and imminent. As a corollary, if the making of the draft plan is perceived to be neither certain nor imminent, a consent authority should accord little weight to the draft plan.

• Where a savings and transitional provision provides that a relevant instrument is not to be treated as made (even though it has been made), a consent authority is entitled to treat the making of the draft plan as certain and imminent. • Certainty refers to the terms of the plan to be made as being certain. • The weight given to a draft plan does not involve a question of law, so long as legally irrelevant matters are not considered. As was noted in Terrace Tower Holdings, the general principle, as held in Sofi v Wollondilly, namely, that the law for the determination of a DA is that which is in force at the date of determination of the DA, may be altered if any new EPI contains savings and transitional provisions in relation to DAs lodged but not determined at the date of coming into force of a new EPI. Usually LEPs contain a savings and transitional clause, although there is no obligation for that to be the case. The usual terms of such a savings and transitional clause in an LEP are as follows, being cl 1.8A of the Greater Taree LEP 2010:2 “1.8A Savings provision relating to pending development approvals If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.” Interestingly, however, the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) does not include any such savings and transitional clause. Footnotes 2

The same provision is found, for example, in cl 1.8A of the

Lane Cove LEP 2009, cl 1.8A of the Goulburn Mulwaree LEP 2000 and cl 1.8A of the Gloucester LEP 2010.

¶49-070 Blackmore Design Group Pty Ltd v North Sydney Council In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 (Blackmore Design Group), Lloyd J in the NSWLEC heard a merit appeal by an applicant against the refusal by the Council of a DA for the construction of an apartment building at Cremorne. When the DA was lodged, the proposed development was permissible under the LEP then in force, the North Sydney LEP 1989. Subsequently, but prior to determination of the DA, the North Sydney LEP 2001 (2001 LEP) came into force. Under the 2001 LEP, the proposed development was prohibited. The 2001 LEP contained a savings and transitional provision. Lloyd J held at paragraphs [21]–[37] as follows: “21. The first question is the weight to be given to the 2001 LEP. That question is governed by cl 5(3) of that instrument: ‘the environmental planning instrument repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced’. With the benefit of hindsight it is possible to say that although the 2001 LEP had not been made, at the time of lodgement of the development application on 13 November 2000 it was both certain and imminent. At that stage, the then draft LEP had been exhibited three times, had been formally adopted by the council and had been forwarded to the Department of Urban Affairs and Planning for making by the Minister. 22. The weight to be given to a draft local environmental plan in such circumstances is settled. In particular the question has been considered in a series of cases involving the present 2001 LEP in draft form. 23. Mathers v North Sydney Council [2000] NSWLEC 84

(unreported) was heard when the then draft LEP had had its second exhibition but submissions had not been considered. Talbot J said (at par [29]): ‘It is appropriate given the history of the development of the draft instruments to give draft LEP 2000 significant weight to the extent the Court is satisfied that approving the development will not detract from its objectives as expressly stated or reflected in the proposed controls, …’ 24. Architects Haywood & Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 (unreported) was heard after the third exhibition, when submissions following that exhibition were being considered. Pearlman J put the question in the following terms (at par [32]): ‘The question, then, is the degree of weight to be placed upon [the plan’s] provisions in the assessment of the proposed development. That involves considering whether the making of the Draft LEP is certain and imminent. It also involves considering the effect cl 5(3) of the Draft LEP which is a savings provision …’ 25. Pearlman J then said (at par [33]) that the planning approach which the draft LEP adopts must be regarded as certain to be brought into force within the reasonably foreseeable future; and hence she placed ‘significant weight’ upon its provisions in the assessment of the development application in that case. Her Honour then turned her attention to the savings provisions of the draft LEP (at par [34]): ‘The savings provision does not require a different approach. The effect of cl 5(3) is to place the Draft LEP in precisely the same position so far as concerns this development application whether it had formally come into force or still remained a draft as currently pertains. In either case, it is to be taken into consideration as if it had been placed on public exhibition, and accordingly given some weight in the assessment of the planning implications of the development application.’

26. Edward Listin Properties Pty Ltd v North Sydney Council [No.2] [2000] NSWLEC 181 (unreported) was also heard after the third exhibition but also after the council had resolved to make the plan and had forwarded it to the Department of Urban Affairs and Planning to be made by the Minister. Talbot J said (at par [9]): ‘In the circumstances outlined above it is incumbent upon the Court to place considerable weight on any relevant provisions of the draft LEP and the impact that granting of development consent may have on implementation of its objectives.’ 27. Walker v North Sydney Council [2001] NSWLEC 211 (unreported) was heard almost one month after Edward Listin Properties. Cowdroy J said in that case (at par [31]): ‘Arising form [sic. Should read “from”] the judgments of Talbot J and Pearlman J the adoption of the draft LEP is imminent … The Court therefore gives due force to such clause and upholds the council’s submission that cl 68 of the draft LEP warrants rejection of the development application.’ 28. Finally, Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 (unreported) was heard after the 2001 LEP had been made. I held (at par [6]) that the effect of the savings clause (cl 5(3)) meant that the notionally draft planning instrument must be awarded such weight as must be given to any such instrument when its implementation is certain and imminent. I further decided (at par [11]) that in the circumstances of that case the notionally draft local environmental plan should be afforded determining weight. 29. It seems to me that in applying the savings clause, cl 5(3), to the present case, one cannot ignore the fact that the 2001 LEP has been made. In applying the words of the clause that ‘the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced’, it is necessary in the light of that circumstance to assume that the making of the notionally draft plan was certain and imminent. In Architects Haywood v Bakker Pty Ltd, Pearlman

J said that the savings provision does not require a different approach. I thus reject the submissions of the applicant that this approach is not consistent with the purpose of cl 5(3). 30. Whether one applies the test of ‘significant weight’, or ‘some weight’, or ‘considerable weight’ or ‘due force’ or ‘determining weight’ to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is ‘antipathetic’ thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J

said (at par [15]): ‘Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.’ 35. His Honour further stated (at par [35]): ‘… If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.’ 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 37. In adopting this approach to the present proposal I have come to the view that the application should be approved. I have come to this view notwithstanding the fact that the 2001 LEP must be notionally regarded as being certain and imminent. The following considerations, in particular, lead me to this view: (1) It is common ground that the proposal is permissible under the 1989 LEP which, by dint of cl 5(3) applies as if it were in force at the date of determining this application. (2) … There are no merit issues which would justify a refusal of the application. Indeed, the merits of the proposal are all one way. (3) The expert evidence, some of which I have described above, demonstrates that the proposed development complies with cl 14 of the 2001 LEP, namely, it is in accordance with and promotes the specific aims of the plan and the objectives of the Residential G zone; and in particular, is in accordance with and promotes the character of the neighbourhood. (4) In particular, Ms Gordon and Mr Beattie in reporting to the

council expressly state (as noted in par [13] above) that: ‘the proposal meets the general intent of the 2(g) zone as expressed in DLEP 2000, and typifies in bulk and scale of the form of development being sought, and consent is recommended on that basis’. (5) The evidence shows that the built form of the proposed building is consistent with and compatible with the character of the neighbourhood. It is not antipathetic to any of the aims of the 2001 LEP, the zone objectives or the desired character of the zone. (6) Although one of the specific objectives of the conservation area controls under the 2001 LEP is to prevent the demolition of contributory items, consent may nevertheless be granted for such demolition to take place provided the consent authority has taken into consideration the relevant criteria specified in cl 49 of the 2001 LEP. The evidence of the heritage experts (that is, Mr Shepherd, Mr Brooks and Mr Staas) is again, all one way. When assessed against the criteria there is nothing to suggest the existing building should remain or that the proposed replacement building will have an adverse effect on the character and significance of the conservation area.” Conclusions The following conclusions may be derived from Blackmore Design Group: • Where an EPI contains a savings and transitional provision that provides that (in relation to a DA lodged before the EPI came into force) the former EPI would apply as if the new EPI had been exhibited but not commenced. In considering the EPI, the consent authority is entitled to consider the new EPI’s making as being both certain and imminent. • Where the making of a proposed EPI is found to be imminent and certain, the weight to be according to the proposed EPI is

“significant weight”, or “some weight”, or “considerable weight” or “due force” or “determining weight”. • In considering a DA with a proposed EPI whose making is imminent and certain, the consent authority needs to look beyond a prohibition and consider the aims and objectives of the proposed EPI to see if the DA is consistent with those aims and objectives.

¶49-080 Consent authority to consider any Development Control Plan Section 79C(1)(a)(ii) requires a consent authority, in determining a DA, to take into consideration any Development Control Plan (DCP). The reference to a DCP is to a DCP actually made and in force. The process for making a DCP and the lawfulness of a DCP have been considered previously in Chapter ¶3 under the scope and power of an EPI and the making of an EPI.

¶49-090 Zhang v Canterbury City Council The leading case on the question of taking into account a DCP in determining a DA is Zhang v Canterbury City Council [2001] NSWCA 1967 (Zhang). Zhang is a decision of the NSW Court of Appeal arising from an appeal from a decision of Talbot J in the NSWLEC who upheld an appeal against the determination of a DA for uses of premises at Campsie for a brothel on the grounds that the Commissioner failed to properly consider a DCP in granting consent. The use of the premises as a brothel was permissible under the applicable LEP. The Council had adopted a DCP setting out locational requirements for brothels, including one which provided that a brothel must not be located in, adjoining or within 100 metres walking distance of any residential zoned site or within 200 metres walking distance of any place of worship, school, community facility, child care centre, rail station, bus or taxi stop, or any place frequented by children.

Spigelman CJ (with whom Meagher JA and Beasley JA agreed) held at paragraphs [61]–[63] and [70]–[77] as follows: “61 The provisions of DCP 23 as set out above are plainly relevant to the development application the subject of these proceedings. The obligation upon the decision maker was to ‘take into consideration’ DCP 23. 62 The submissions in this Court proceeded on the basis that Talbot J had applied a proper test to determining whether or not as a matter of law the Commissioner had complied with the statutory obligations. The test was whether the Commissioner had given ‘proper, genuine and realistic consideration to the provisions of the DCP’. This formulation is derived from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) and see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J. As indicated by this Court in Ligon (supra) at 28, this formulation was in substance the equivalent of the test of ‘real consideration’ applied to the predecessor section of s79C of the Environmental Planning and Assessment Act in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331 and 335–336 and 339–339. See also Bruce v Cole (1998) 45 NSWLR 163 at 185–186. A number of equivalent formulations appear in the case law. (See Aronson & Dyer Judicial Review of Administrative Action (2nd ed) at 225). Care must be taken that this category of judicial review or appeal on question of law is not elided into a review on the merits or an appeal on the facts (Bruce v Cole supra at 186). 63 I do not understand these authorities to be suggesting that the plain words of a statutory formulation should be substituted by some other formulation. The issue remains: Did the Commissioner, as was his statutory duty, ‘take into consideration’ DCP 23? … 70 In order to ‘take into consideration’ the particular provisions of DCP 23, the Commissioner was under an obligation to consider

the fact that the DCP established a standard that a brothel should not be ‘located adjoining or within 200 metres walking distance of any place of worship’ etc and that that standard was designed to serve the objective of ensuring that ‘Brothels are located at a reasonable distance from … sensitive land uses’. The statute required the Commissioner to consider that standard in conducting the evaluation under s79C(1). 71 The statutory power in s80 of the Act to ‘determine a development application’ by granting or refusing consent does not confer an unfettered discretion. It is subject to the obligation to ‘take into consideration’ the matters identified in s79C(1). This obligation is of a similar character to that which has been found to be imposed by a statutory obligation to ‘have regard to’ identified matters. 72 In one such statutory context Mason J said: ‘When subs (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination’. (R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 323 at 329 [emphasis added]). 73 In the case of a statute which empowered the court to make such order ‘as to it seems just and equitable having regard to: (a) … and (b) …’, Gleeson CJ and McLelland CJ in Eq said: ‘… par (a) and par (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations.’ (Evans v Marmont (1997) 42 NSWLR 70 at 79–80 [emphasis added]). 74 A development control plan is not an ‘environmental planning instrument’. (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority ‘must refuse’ an application that would ‘result in a contravention of’ such an instrument does not

apply to a development control plan. Furthermore, the proscription, by s76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a ‘non-discretionary development standard’ which, if complied with, would take away a consent authority’s discretion under s79C(2). 75 The consent authority has a wide ranging discretion — one of the matters required to be taken into account is ‘the public interest’ — but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a ‘fundamental element’ in or a ‘focal point’ of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative. 76 In my opinion, the Commissioner did not ‘take into consideration’ the standard contained in cl 4.0 of DCP 23. Rather, he substituted for the statutory requirement a different approach. The Commissioner posed the ‘issue’ for his determination to be: ‘The appropriateness of the location taking into account the proximity to the adjoining church, local schools and hotel’. He resolved this issue on the basis that adverse impact upon land affected by the presence of a brothel had to be demonstrated in the legal proceedings before him. This approach could only be supported if the discretion was entirely at large, i.e. that there were no ‘standards’ of any character which the decision maker had to take into account. By adopting this approach, the Commissioner, in my opinion, proceeded on an impermissible basis. 77 There was a relevant and applicable ‘standard’ which he was obliged to ‘take into consideration’. It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. The evidence, or rather the absence thereof, about actual effects, was not entitled to determinative weight, without regard to the presumptive ‘standard’ in this way.”

Conclusions The following conclusions can be derived from Zhang: • The test for compliance with the requirement to consider a DCP is whether the consent authority gave proper, genuine and realistic consideration to the provisions of the DCP. • To give proper, genuine and realistic consideration to a DCP, the consent authority has to consider the DCP as a fundamental element in or a focal point of the decision-making process. Where a provision of a DCP is directly relevant to a DA, the DCP is entitled to be given significant, but not determinative, weight.

¶49-100 Stockland Development Pty Ltd v Manly Council In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (Stockland v Manly), McClellan CJ in the NSWLEC heard a merit appeal in relation to a DA to redevelop the Balgowlah Shopping Centre. The site was controlled by two DCPs, which provided for a maximum floor space ratio (FSR) and maximum wall height for buildings. The DA under appeal exceeded these FSR and height controls. No controls in relation to FSR and building height were contained in the LEP. In considering the weight to be accorded to a DCP, or indeed any other policy of the Council, McClellan CJ held at paragraphs [87]–[92] as follows: “87 Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are: • A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be

consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. • A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. • A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. • A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. • Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property. 88 The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to

many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court. 89 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not ‘the only means of discerning planning policies or the ‘public interest’’ (at LGERA 210). 90 The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan. 91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options. 92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council

are as follows: • the extent, if any, of research and public consultation undertaken when creating the policy; • the time during which the policy has been in force and the extent of any review of its effectiveness; • the extent to which the policy has been departed from in prior decisions; • the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; • the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; • whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.” Conclusions The following conclusions can be derived from Stockland v Manly: • A DCP must be consistent with an LEP, but it may operate to confine the intensity of development otherwise permitted by an LEP. • A DCP adopted after public consultation will attract significantly more weight than one adopted with little or no community consultation. • A DCP which has been consistently applied by a council will be given significantly greater weight than one only selectively applied. • A DCP which is outdated or results in an inappropriate planning outcome conflicting with other policies will be given less weight

than a DCP which results in a sensible planning outcome consistent with other policies. • Consistency in decision-making, by way of ensuring that decisions are made in accordance with a DCP, is an important objective. • Councils may adopt other policy documents (other than DCPs). The weight to be given to these other policy documents is dependent upon the following factors: – the extent, if any, of research and public consultation undertaken when creating the policy – the time during which the policy has been in force and the extent of any review of its effectiveness – the extent to which the policy has been departed from in prior decisions – the compatibility of the policy with the objectives and provisions of relevant EPIs and DCPs – the compatibility of the policy with other policies adopted by a council or by any other relevant government agency, and/or – whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. The mere fact that a consent authority grants a consent to a DA, resulting in substantial exceedances of numerical controls in a DCP, does not establish that the consent authority failed to give proper, genuine and realistic consideration to a DCP: see Notaras v Waverley Council [2007] NSWCA 333, paragraphs [113]–[118] and [126]–[140]. However, where the consent authority (or on appeal, the Court) puts aside a standard set by a DCP and substitutes one of its own as to the appropriate general policy, such an approach constitutes an error of law under Zhang.

¶49-110 Botany Bay City Council v Premier Customs Services Pty Ltd In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 (Botany Bay C.C. v Premier Customs), Macfarlan JA (with whom Ipp JA and Hoeben J agreed) held, in relation to a decision not to apply a setback requirement of a DCP between industrial and residential uses because the adjoining residential development was on lands zoned for industrial development, at paragraphs [33]–[35] as follows: “33 My view is thus that the Commissioner, in respect of the eastern side setback, put aside the standard set by the DCP and applied his own standard of what is reasonable. Accordingly his decision did not conform with the principles stated in Zhang as he failed to ‘take into consideration’ the DCP in the manner required by s 79C. He applied his own view as to the appropriate general policy, not that embodied in the DCP. He therefore committed an error of law (Zhang at [60]). 34 The Commissioner did not find the eastern side setback satisfactory because he thought that in the particular circumstances of this development it was not appropriate to apply the DCP standard but, rather, because he disagreed with the standard set by the DCP. My interpretation of the Commissioner’s reasons thus differs from that of Biscoe J who took the view that ‘the Commissioner did not forgive compliance with the DCP because he disagreed with it’ (at [26]). 35 I conclude on this aspect of the matter by indicating my respectful agreement with the views expressed by McClellan CJ, as he then was, in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 that ‘consistency of decision-making must be a fundamental objective of those who make administrative decisions’ and that ‘that objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them’ (at [88]). The ability of an individual decision

maker to reject the general policy underlying a development control plan would be antithetical to the achievement of the fundamental objective to which McClellan CJ referred.” Thus, following Botany Bay C.C. v Premier Customs, where a consent authority puts aside a standard in a DCP and applies its own standard of what is reasonable as to the appropriate general policy, that constitutes a breach of the principles in Zhang.

¶49-120 Ecologically Sustainable Development Section 79C(1)(b) requires a consent authority, in determining a DA, to take into consideration “the likely impacts of that development, including environmental impacts …”. One of the objects of the EPA Act is to “to encourage … ecologically sustainable development” (s 5(a)(vii)). Ecologically Sustainable Development (ESD) is defined in s 4(1) as having the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW). Additionally, an Environmental Impact Statement (EIS) must justify a development, activity or infrastructure having regard to the principles of ESD (see Sch 2, cl 1(f) and 4 of the Environmental Planning and Assessment Regulation 2000 (NSW)). Sustainable development as a conceptual model for considering the interrelationship between environment and development first received prominence in the “World Conservation Strategy” 1980 prepared by the International Union for Conservation of Nature (IUCN), the United Nations Environment Programme (UNEP) and the World Wildlife Fund (WWF). Its endorsement in the report of the World Commission on Environment and Development Our Common Future in 1987 (also referred to as the Brundtland Report)3 and in the Rio Declaration on Environment and Development agreed to at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro in June 1992, has reinforced its role as the most widespread conceptual model for environmental management since that time. In the Australian context, “ecologically” was added to “sustainable development” in the National Strategy for Ecologically Sustainable

Development (NSESD) (in 1992) and the Intergovernmental Agreement on the Environment on 1 May 1992.4 ESD developed as a paradigm following the enactment of the EPA Act and hence, it was not referred to in the original Act. Its later insertion in the objects of the EPA Act occurred in the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW). ESD is referred to in the definition as something that “requires the effective integration of economic and environmental considerations in decision making processes”. The definition then provides that ESD can be achieved through the implementation of four principles and programs: (1) the precautionary principle (2) inter-generational equity (3) conservation of biological diversity and ecological integrity, and (4) improved valuation, pricing and incentive mechanisms (such as polluter pays, pricing based on full life cycle costs of goods and services, and environmental goals pursued in a cost-effective way by incentive structures). Footnotes 3

The World Commission on Environment and Development, 1987, Our Common Future, Oxford University Press, Oxford.

4

Dovers, S, 1999, “The rise and fall of the NSESD or not?”, Australian Environmental Law News, No 4, p 30–41.

¶49-130 BGP Properties Pty Ltd v Lake Macquarie City Council In BGP Properties, McClellan CJ in the NSWLEC heard a merit

appeal against the refusal by the Council of a DA for industrial use at Redhead. The site of the DA was environmentally sensitive, being adjacent to a wetland and containing threatened species. McClellan CJ held at paragraphs [82], [84], [98], [100]–[103], [108]– [109], [113]–[114]: “82 Before considering the evidence in relation to each issue and its significance to the decision in this appeal, it is necessary to resolve the approach to be taken to the evaluation of some matters. The evidence raises for consideration a number of complex issues relating to the potential impact of the development on threatened species and ecological communities or their habitats. When such issues are raised, there is often difficulty in arriving at absolute conclusions as to the existence of a relevant species, community or habitat and their disposition on a given site. Even greater difficulties can arise in identifying the impacts from the development, particularly when the proposal accepts that impacts will occur but seeks to ameliorate them by carefully designing the development and providing for ongoing operation or maintenance within an environmentally sensitive framework. … 84 In these circumstances, senior counsel for the respondent submitted that the correct approach to evaluation of the evidence in relation to these matters was to apply the body of principles known as ‘ecologically sustainable development.’ This would include the approach to decision-making reflected in the ‘precautionary principle’. … 98 It is true, as the applicant emphasises, that the EP&A Act makes particular reference to considering the principles of ecologically sustainable development in relation to some matters (see s 79B(5)(g), s 112D(1)(g), 112E(1)(f) and s 115H). Each of these provisions relate to consideration by others of matters relevant to the administration of the EP&A Act where other bodies

have concurrence or consultative roles. The objects of the EP&A Act would not inform the decision of the other body creating the necessity to expressly identify it in the EP&A Act. … 100 In Carstens v Pittwater Council (1999) 111 LGERA 1, Lloyd J was required to consider whether s 79C(1) was an exhaustive statement of the matters to be considered. His Honour held that it was not and, in coming to this conclusion, he confirmed that the discretion in s 79(C) was to be informed and exercised in a manner which promotes the objects of the Act. With respect to principles of ecologically sustainable development, his Honour said (at LGERA 25): ‘The Commissioner’s decision contains the following statements: ‘The Act requires that the principles of ecologically sustainable development (ESD) must be a factor in an assessment of the impact on the environment of a combined Development Application and Construction Certificate … To achieve the objects of the Act and in particular ESD principles, a balance needs to be struck between the manmade development and the need to retain the natural vegetation. Mr Tomasetti submits that the Commissioner erred in holding that the Act required that the principles of ecologically sustainable development (ESD) must be a factor in the assessment of the impact; it is not a factor which is set out in s 79C(1), neither is the phrase defined in the Act. Mr Preston submits that having regard to (a) the express object in s 5(a)(ii) of the EP&A Act of encouraging ESD; (b) the fact that one of the central issues in determining the development application concerned the likely effect on a threatened ecological community; (c) the desirability of an administrative decision-maker exercising discretionary statutory powers in a way which promotes the objects of the

Act; (d) the fact that the principles of ESD are relevant to many of the s 79C(1) generic categories of matters; (e) the fact that the principles of ESD have been accepted internationally, nationally and within New South Wales as relevant to environmental decision-making; and (f) the absence of any provision in s 79C(1) or elsewhere which states that ESD is an extraneous consideration, the Court should not conclude that ESD is an irrelevant consideration. Mr Preston refers to a number of cases in the Court and elsewhere in which ESD principles have been applied. I have previously discussed under ground (1) above the relationship between the objects of the EP&A Act described in s 5 and the matters to be taken into consideration in determining a development application set out in s 79C(1). In the light of that discussion and for the reasons which I have there stated, I concluded that s 79C(1) sets out the matters that must be taken into consideration, but that subsection does not exclude from consideration matters not listed and which may be of relevance to the particular development application and which further the objects of the Act. That is to say, it is not an irrelevant consideration for the decisionmaker to take into account a matter relating to the objects of the Act. One of those objects is to encourage ecologically sustainable development (s 5(a)(vii)). Moreover, one of the considerations expressly mentioned in s 79C(1) is ‘(e) the public interest’. In my opinion it is in the public interest, in determining a development application, to give effect to the objects of the Act. For these reasons I do not accept the submission that the Commissioner erred in holding that the principles of ESD must be a factor in the consideration of a combined development application and construction certificate.’ 101 I respectfully agree with his Honour’s conclusion. 102 In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 the Court of Appeal was required to consider the breadth of matters which could be considered

under s 79(C). Mason P, with whom Spigelman CJ and Ipp JA agreed, said (at LGERA 209–210): ‘In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42–44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the ‘public interest’. For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231 at 235.’ 103 Although the weight to be given to any particular matter is for the decision-maker to determine, it may be that if a matter of great significance is not given appropriate weight, the decision will be invalid (see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41). … 108 The role of the precautionary principle in environmental decisions was considered by this Court in Leatch v National Parks and Wildlife Service & Anor (1993) 81 LGERA 270. The proceedings raised a challenge to the grant of licence to take or kill endangered fauna. Describing the precautionary principle as ‘a statement of commonsense’, Stein J said (at LGERA 282): ‘… has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt

out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.’ 109 In Greenpeace Australia Ltd v Redbank Power Company Pty Ltd & Anor (1994) 86 LGERA 143, Pearlman J said (at LGERA 154): ‘The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; it does not require that the greenhouse issue should outweigh all other issues.’ … 113 In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment. 114 Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.”

BGP Properties indicates that the objects of the EPA Act in relation to ESD are applicable in the consideration of a DA as follows: • An approach towards evaluation using ESD is not precluded by s 79C as it is in the public interest in determining a DA to give effect to the objects of the EPA Act. Included with the concept of ESD is the precautionary principle. • Indeed, a consent authority is obliged when determining a DA to have regard to the principles of ESD, where relevant, based on the public interest head of consideration in s 79C. • The application of ESD does not preclude a decision to approve a DA where the overall benefits of the proposal outweigh the likely environmental harm. But care needs to be taken to ensure appropriate and adequate mitigation measures have been applied.

¶49-140 Telstra Corporation Ltd v Hornsby Shire Council In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (Telstra), Preston CJ in the NSWLEC heard a merit appeal against the refusal by the Council of a DA for a mobile telephone base station at Cheltenham. The Council’s concerns related to fears that radio frequency electromagnetic energy (RF EME) may harm the health and safety of residents. In the course of his judgment, Preston CJ considered the application of ESD. He held as follows at paragraphs [107]–[110], [112]–[113], [115]–[124], [126]–[129], [134], [140], [149]–[152], [154], [156]–[159], [161]–[163], [166]–[167], [169]–[172], [177], [179]–[182]: “Ecologically sustainable development 107 The issue of the effect of RF EME emitted from the proposed base station raises the question of the ecological sustainability of the development, and in particular the applicability of the precautionary principle to the development. I will first outline the basic concept of ecologically sustainable development and then

its applicability to the determination of development applications under the EPA Act. I will next focus on the precautionary principle and its applicability to the proposed development in this case. 108 Ecologically sustainable development, in its most basic formulation, is ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’: World Commission on Environment and Development, Our Common Future, 1987 at p. 44 (also known as the Brundtland Report after the Chairperson of the Commission, Gro Harlem Brundtland). More particularly, ecologically sustainable development involves a cluster of elements or principles. Six are worth highlighting. 109 First, from the very name itself comes the principle of sustainable use — the aim of exploiting natural resources in a manner which is ‘sustainable’ or ‘prudent’ or ‘rational’ or ‘wise’ or ‘appropriate’ … 110 Secondly, ecologically sustainable development requires the effective integration of economic and environmental considerations in the decision-making process … … 112 The principle has been refined in recent times to add social development to economic development and environmental protection. … 113 Thirdly, there is the precautionary principle. … … 115 This is the particular principle of ecologically sustainable development invoked by the Council and the residents in this case in aid of their opposition to the proposed base station. I will return to it shortly. 116 Fourthly, there are principles of equity. There is a need for inter-generational equity … 117 There is also a need for intra-generational equity. …

118 Fifthly, there is the principle that conservation of biological diversity and ecologically integrity should be a fundamental consideration … 119 Sixthly, ecologically sustainable development involves the internalisation of environmental costs into decision-making for economic and other development plans, programmes and projects likely to affect the environment. This is the principle of the internalisation of environmental costs. The principle requires accounting for both the short-term and the long-term external environmental costs. … 120 These principles do not exhaustively describe the full ambit of the concept of ecologically sustainable development, but they do afford guidance in most situations. These principles, if adequately implemented, may ultimately realise a paradigm shift from a world in which the development of the environment takes place without regard to environmental consequences, to one where a culture of sustainability extends to institutions, private development interests, communities and individuals … 121 The principles of ecologically sustainable development are to be applied when decisions are being made under any legislative enactment or instrument which adopts the principles … 122 The EPA Act is one such legislative enactment. It expressly states that one of the objects of the EPA Act is to encourage ecologically sustainable development: s 5(a)(vii). The Act defines ecologically sustainable development as having the same meaning as it has in s 6(2) of the Protection of the Environment Administration Act 1991. 123 Section 79C(1) of the EPA Act, which sets out the relevant matters which a consent authority must take into consideration, does not expressly refer to ecologically sustainable development. Nevertheless, it does require a consent authority to take into account ‘the public interest’ in s 79C(1)(e). The consideration of the public interest is ample enough, having regard to the subject matter, scope and purpose of the EPA Act, to embrace ecologically sustainable development.

124 Accordingly, by requiring a consent authority (or on a merits review appeal the Court) to have regard to the public interest, s 79C(1)(e) of the EPA Act obliges the consent authority to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise: Carstens v Pittwater Council (1999) 111 LGERA 1 at 25; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at 262 [113]; and Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 (15 August 2005) at [54]. The precautionary principle The precautionary principle explored … 126 A number of decisions in this Court have established that the precautionary principle is to be considered in making determinations of development applications under the EPA Act … 127 However, there has not yet been, in the decisions of this Court, a detailed explanation of the precautionary principle or the procedure for application of it. Hence, it is necessary to refer to other sources of information on the precautionary principle, including judicial decisions of other jurisdictions and the academic literature on the precautionary principle. Drawing on these sources, the following guidance can be offered on the concept of the precautionary principle and its application. Conditions precedent or thresholds to application of the precautionary principle 128 The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it

should be proportionate … Threat of serious or irreversible damage 129 Two points need to be noted about the first condition precedent that there be a threat of serious or irreversible environmental damage. First, it is not necessary that serious or irreversible environmental damage has actually occurred — it is the threat of such damage that is required. Secondly, the environmental damage threatened must attain the threshold of being serious or irreversible. … 134 The threat of environmental damage must be adequately sustained by scientific evidence. … … Scientific uncertainty 140 The second condition precedent required to trigger the application of the precautionary principle and the necessity to take precautionary measures is that there be ‘a lack of full scientific certainty’. The uncertainty is as to the nature and scope of the threat of environmental damage … … 149 If there is no, or not considerable, scientific uncertainty (the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (the first condition precedent is satisfied), the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats …

Shifting of the burden of proof 150 If each of the two conditions precedent or thresholds are satisfied — that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty — the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project. 151 The rationale for requiring this shift of the burden of proof is to ensure preventative anticipation; to act before scientific certainty of cause and effect is established. It may be too late, or too difficult and costly, to change a course of action once it is proven to be harmful. The preference is to prevent environmental damage, rather than remediate it. The benefit of the doubt is given to environmental protection when there is scientific uncertainty. To avoid environmental harm, it is better to err on the side of caution. 152 The function of the precautionary principle is, therefore, to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists … … 154 It should be recognised that the shifting of the evidentiary burden of proof operates in relation to only one input of the decision-making process — the question of environmental damage. If a proponent of a plan, programme or project fails to discharge the burden to prove that there is no threat of serious or irreversible environmental damage, this does not necessarily mean that the plan, programme or project must be refused. It simply means that, in making the final decision, the decisionmaker must assume that there will be serious or irreversible

environmental damage. This assumed factor must be taken into account in the calculus which decision-makers are instructed to apply under environmental legislation (such as s 79C(1) of the EPA Act). There is nothing in the formulation of the precautionary principle which requires decision-makers to give the assumed factor (the serious or irreversible environmental damage) overriding weight compared to the other factors required to be considered, such as social and economic factors, when deciding how to proceed … … Precautionary principle invokes preventative anticipation 156 The precautionary principle permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known … Zero risk precautionary standard inappropriate 157 The precautionary principle should not be used to try to avoid all risks. … 158 A zero risk precautionary standard is inappropriate. ... 159 Rationality dictates that the precautionary principle and any preventative measure cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified … … Degree of precaution required 161 The type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty. This involves assessment of risk in its usual formulation, namely the probability of the event occurring and the seriousness of the consequences should it occur. The more significant and the more uncertain the threat, the greater the degree of precaution required …

162 Prudence would also suggest that some margin for error should be retained until all the consequences of the decision to proceed with the development plan, programme or project are known. This allows for potential errors in risk assessment and cost-benefit analysis. Potential errors are weighted in favour of environmental protection. Weighting the risk of error in favour of the environment is to safeguard ecological space or environmental room for manoeuvre … 163 One means of retaining a margin for error is to implement a step-wise or adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, programme or project is expanded as the extent of uncertainty is reduced … … Proportionality of response 166 The precautionary principle embraces the concept of proportionality. The concept of proportionality is that measures should not go beyond what is appropriate and necessary in order to achieve the objectives in question. Where there is a choice between several appropriate measures, recourse should be had to the least onerous measure and the disadvantages caused should not be disproportionate to the aims pursued. 167 In applying the precautionary principle, measures should be adopted that are proportionate to the potential threats. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs, and the seriousness and irreversibility of the potential threat … … 169 Considerations of practicability need to be taken into account … 170 There must be proportionality of response or cost effectiveness of margins of error to show that the selected precautionary measure is not unduly costly …

171 The cost consequences of increasing levels of precaution must be evaluated. … 172 The selection of the appropriate precautionary measures to regulate the identified threat of serious or irreversible environmental damage with its identified uncertainty, requires assessment of the risk-weighted consequences of various options … … 177 The selection of the appropriate precautionary measures must involve examining both sides of the ledger: the costs associated with the project, process or product (which tends to increase the degree of precaution) as well as the benefits of the project, process or product (which tends to decrease the degree of precaution commensurate with realising the benefit). … … Precautionary principle does not necessarily prohibit development 179 The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, programme or project until full scientific certainty is attained … 180 If the precautionary principle were to be interpreted in this way, it would result in a paralysing bias in favour of the status quo and against taking precautions against risk. … 181 The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option. Precautionary principle in context of other ESD principles 182 The precautionary principle is but one of the set of principles of ecologically sustainable development (highlighted earlier in the judgment). It should not be viewed in isolation, but rather as part of the package. This means that the precautionary measures that should be selected must not only be appropriate having regard to

the precautionary principle itself, but also in the context of the other principles of ecologically sustainable development including inter-generational and intra-generational equity and the conservation of biological diversity and ecological integrity … In some circumstances these other principles may strengthen the case for precautionary action, while in others the precautionary principle may need to be weighed against the other principles as well as other human rights such as food, water, health and shelter …” Preston CJ noted that in the case before him the first precondition for the application of the precautionary principle, namely that a threat of serious or irreversible harm is not satisfied and hence, there was no basis to apply the precautionary principle in that case. Preston CJ adopted the Brundtland Report definition of ESD as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. He then identified six elements or principles incorporated in ESD: (1) the principle of sustainable use (2) the effective integration of economic and environmental considerations in decision-making (3) the precautionary principle (4) the principles of inter-generational and intra-generational equity (5) the principle that conservation of biological diversity and ecological integrity should be a fundamental consideration, and (6) the internalisation of environmental costs. He noted that these elements or principles are not exhaustive. Section 79C of the EPA Act, by requiring a consent authority to have regard to the public interest, obliges the consent authority to have regard to the principles of ESD in accordance with the objects of the Act.

In relation to the precautionary principle, Preston CJ set out how it should be adopted: • The application of the precautionary principle is triggered by two cumulative threshold tests or conditions precedent: (1) threat of serious or irreversible environmental damage, and (2) scientific uncertainty as to the environmental damage. • Only when the threshold tests or conditions precedent are satisfied will the precautionary principle be applicable. At that point, there is a shifting in the burden of proof where the proponent must demonstrate that the threat of serious or irreversible environmental damage is negligible. The purpose of this shift of the burden of proof is to err on the side of caution and avoid environmental harm. • The shifting of the burden of proof only relates to the question of environmental damage, and not other evaluation criteria. Hence, it means that, in weighing up the competing factors, the decisionmaker should assume there will be serious or irreversible environmental damage (unless disproved by the proponent). But the decision-maker may still approve the project in balancing the competing factors. Hence, the application of the precautionary principle does not require refusal of a DA, nor to give the assumed fact of serious and irreversible environmental damage greater weight in consideration than other factors. • The type of precautionary measures applied depends upon the combined degree of seriousness and irreversibility of the threat or degree of uncertainty. Preston CJ considered that some margin of error should be applied, and that one way of doing this is to implement a step-wise or adaptive management approach. However, an adaptive management approach may be criticised for proceeding with a development without an adequate understanding of its impacts or consequences (and hence, to measures needed to mitigate them), but simply relying on adjusting or applying mitigation measures when unforeseen

impacts occur. (See Stein J in CSR Ltd (trading as CSR Readymix) v Wingecarribee Shire Council, NSWLEC No 10372 of 1990, 17 December 1990, Unreported judgment of Stein J at p 15–17 for a criticism of an adaptive management approach.) • Additionally, any precautionary measures adapted should be proportionate to the potential threats.5 It is noted that Telstra proposed a generally cautious use of the precautionary principle where the burden of proof is only shifted on the question of environmental damage where the threshold for its application has been exceeded. However, it does not change the need for a weighing up of competing factors, none of which has any greater statutory weight. Hence, it does not disturb the general propositions that were considered earlier in relation to the exercise of discretion generally under s 79C(1). Seen in this context, the somewhat elaborate and convoluted mechanism outlined in Telstra may be distilled to provide that a cautious approach should be adopted in evaluating the various factors, with conclusions being evidence-based and where inferences or extrapolations are required they need to be informed by sensitivity analysis. Further, that cautious approach needs to be used in evaluating all factors, not simply the factor of environmental damage.6 The broader issues of the implementation of the precautionary principle and its impacts on decision-making are outlined in the paper by Whitehouse.7 Footnotes 5

For a detailed examination of the Precautionary Principle, see Peel, J, 2005, The Precautionary Principle in Practice. Environmental Decision-Making and Scientific Uncertainty, The Federation Press, Sydney.

6

See discussion in Walton, W, Ross-Robertson, A & RowanRobertson, J, 1995, “The Precautionary Principle and the

UK Planning System”, Environmental Law and Management, Volume 7, p 35–40. 7

Whitehouse, JF, 1999, “Will the precautionary principle affect environmental decision-making and impact assessment?”, in R Harding & E Fisher (eds), Perspectives on the Precautionary Principle, The Federation Press, Sydney, p 59–72.

¶49-150 Social and economic effects Section 79C(1)(b) requires a consent authority in determining a DA to take into consideration the “likely impacts of that development, including … social and economic impacts in the locality”. In Chapter ¶3 on the scope and power of an EPI, the issue was raised of the extent to which social and economic considerations are a relevant planning consideration at a general level. Just as the extent to which EPIs may consider social and economic factors has been a matter of debate at the plan-making stage, so too it has been a matter of debate at the development assessment level. The debate tends to be polarised around two broad concerns: (1) the extent to which planning decisions should provide a vehicle for broader social and economic policy, and (2) the extent to which planning decisions can distort the normal operations of a market economy and, in particular, the extent to which the planning system can be used for anti-competitive reasons for a commercial operator to prevent competing business from obtaining approvals. The first concern is directed at a reluctance to accept that planning decisions can profoundly affect social equity and economic development, given the origins of planning in issues of public health, safety and amenity. Added to this is a debate about the proper role of

government and the extent to which it ought to be involved in addressing the spatial context of the economy and social welfare or as it is described pejoratively, social engineering. The second concern seeks to look at the motives of participants in the planning system as opposed to outcomes. Interestingly, the motives of participants in the planning system on other issues are rarely canvassed, although they may be equally self-interested. Further, legislation in the field of trade practices seeking to prevent marketbased anti-competitive conduct has spurred commercial interests to look to new means of stifling their commercial competitors, with the planning system an obvious area. There is little doubt that planning operates to direct or channel market forces in particular directions through the zoning system. Left unchecked the zoning system can distort the market by limiting the extent of land zoned for particular uses to a quantity less than the market demand for land for those purposes.8 Footnotes 8

In this context, see the debate in relation to retail development and the planning system, Fells, A, Beare, S & Szakiel, S, 2000, Choice Free Zone: Competition and Innovation is Discouraged under the Environmental Planning and Assessment Act, Concept Economics and Urban Task Force Australia Ltd, Sydney, ISBN 978-0-64649305-3.

¶49-160 Kentucky Fried Chicken Pty Ltd v Gantidis In Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 40 LGRA 132 (KFC v Gantidis), the High Court considered an appeal relating to an application in Williamstown in Victoria for a takeaway fried chicken premises. The permit was granted by the Victorian Town Planning Appeals Tribunal (Tribunal) and objectors sought judicial review on the

grounds that the Tribunal had failed to take into consideration the effect of the proposal on the economic viability of nearby food outlets and the effect of the proposal on pedestrian movements. Barwick CJ held that there was no evidence on which it could be concluded that the Tribunal had not taken these matters into consideration. However, Barwick CJ then held at p 137 as follows (footnotes omitted): “However, because a misapprehension as to the permissible scope of a planning authority’s consideration in deciding whether or not to grant a planning permit ought not to be allowed to persist. I desire to say that it is my opinion that economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter. Nothing said by my brother Stephen in Spurling v Development Underwriting (Vic.) Pty Ltd, ought to be taken as deciding otherwise. Here one of the two matters thought to have been overlooked by the tribunal was not really a matter for consideration by the Council or by the tribunal. Restraint or prevention of economic competition is not, in my opinion, part of the orderly and proper planning of the zone to which cl. 7 (2) refers. The expression in ground 5 (c) of the order nisi, ‘the economic viability of the adjoining area’, is at best ambiguous. If it means simply the effect of competition by the proposed use with existing uses of property in the area, it does not express a relevant ground. If it means that the proposed use will be destructive of the amenity of the neighbourhood, giving amenity a wide connotation, it may afford particulars of a general ground relating to the maintenance of the amenity of the neighbourhood. However, so far as appears, the former is the meaning attached by the parties to this particular ground. They were in agreement that the proposed use did not threaten the amenity of the neighbourhood.” Stephen J (with whom Gibbs J, Mason J and Aickin J agreed) agreed with Barwick CJ that there was nothing to suggest the Tribunal had not taken into consideration the issues in question. Stephen J held at p 141 (footnotes omitted) as follows:

“There is one further observation to be made. The learned primary judge described one submission urged before the tribunal, namely that the establishment of the appellant’s proposed fried chicken shop would ‘adversely affect existing food shopping facilities in the neighbourhood’ as being just such a consideration as I had earlier held, in Spurling v Development Underwriting (Vic.) Pty Ltd, to be a proper planning consideration. I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is ‘facilities’. [If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.]” It is noted that the legislative provisions in KFC v Gantidis made no explicit mention to social and economic considerations, as does s 79C of the EPA Act. But the key element of the majority decision is that the mere threat of competition to existing business is not a relevant planning consideration, unless there is a prospect of a resulting overall adverse effect on the extent and adequacy of facilities available to the local community if the development went ahead. Barwick CJ’s judgment was similar to that of the majority. He put the proposition that economic competition between businesses is not a relevant planning consideration, unless it is destructive of amenity. The majority test is perhaps of more use to planning decision-makers in that it indicates

that a reduction in profitability due to competition is an irrelevant consideration unless it is such that it will adversely affect the extent and range of facilities available to the local community. Thus, the High Court held the effects of a development on the economic viability of other business will be relevant if the effect is such as to have an overall adverse effect (that is broader than an individual business) on the extent and range of facilities (be they food outlets or general retail, or groceries, etc) available to the local community.

¶49-170 Fabcot Pty Ltd v Hawkesbury City Council In Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 (Fabcot), Lloyd J in the NSWLEC heard a merit appeal against a DA for a supermarket on land with an existing use at South Windsor. The Council raised the issue of the economic effects of the proposal on existing and planned retail outlets and whether the approval of an out-of-town supermarket would have an adverse effect on existing centres. Lloyd J held that the first issue was not relevant, but the second was relevant. Lloyd J held at p 378–379: “Section 90(1) is limited to environmental and planning considerations (Liu v Fairfield City Council (unreported, Land and Environment Court (NSW, Murrell AJ, No 10384/96, 23 December 1996)). For example, s 90(1)(d) relating to the social effect of a proposal does not relate to moral considerations, for which the criminal law is the appropriate regulatory vehicle: it is not for local government councils nor for this court to assume the mantle of moral arbiter (Liu v Fairfield City Council). Similarly, economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) is directed. The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) are the appropriate vehicles for regulating economic competition. Neither the Council nor this Court is concerned with the mere threat of economic competition between competing

businesses. In an economy such as ours that is a matter to be resolved by market forces, subject to the Trade Practices Act and the Fair Trading Act. It is not part of the assessment of a proposal under the Environmental Planning and Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. Moreover, it is at least arguable from the fact that the Trade Practices Act now applies to local government councils, that if a local council were to refuse or to limit a proposal for development on the ground of competition with a trade competitor, it could be guilty of anticompetitive conduct contrary to Pt 4 of that Act. It seems to me that the only relevance of the economic impact of a development is its effect ‘in the locality’; that is to say, in the wider sense described in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687; 40 LGRA 132 at 141 (per Stephen J, with whom Mason and Aicken JJ agreed) … … [p 379] … The fact that the proposed supermarket may have an adverse economic impact on existing and planned retail supermarkets within the Hawkesbury city local government area is self evident. Moreover, the proposal may provide benefits in the form of increased competition and cheaper prices for consumers. I should note that there is no suggestion in any of the evidence that any of the existing or planned supermarkets in the local government area would be put in jeopardy by the proposed development. Nonetheless, as I have said, Issue (5) does not raise a planning or environmental consideration.” Lloyd J then held in relation to the issue of whether the approval of an out-of-town supermarket would have an adverse economic effect on existing centres as follows at p 380: “In short, I accept the opinion of Mr Leyshon that there is likely to

be a 10 to 15 per cent decline in non-supermarket trading in the Windsor town centre if the present proposal were to proceed. That is to say, the out of town, stand-alone supermarket now proposed will to a significant extent break the synergy or nexus between supermarket and non-supermarket shopping in Windsor. To ‘marginalise’ the non-supermarket businesses in the manner described by Mr Leyshon would clearly put at risk the viability of those businesses. The effect would be as described in Kentucky Fried Chicken Pty Ltd v Gantidis: the facilities presently enjoyed by the community in Windsor would be put in jeopardy by the proposed development and the resultant community detriment would not be made good by the proposed development itself. That is a proper consideration to be taken into account as a matter of town planning …” Thus, in Fabcot the Court held: • The provisions of s 79C (and its predecessor s 90) do not encompass economic competition between trade competitors. • The principles in KFC v Gantidis are the only relevant economic effects to be considered under s 79C. • The fact that a DA may have an adverse economic impact on existing businesses is not relevant provided it will not put any of those existing businesses in jeopardy. • If a DA would result in a 10–15% decline in non-supermarket trade in an existing centre, it will put the viability of those businesses at risk with the result that facilities currently enjoyed by the community will be placed in jeopardy and the resulting community detriment will not be made good by the proposed DA.

¶49-180 City West Housing Ltd v Sydney City Council In City West Housing Ltd v Sydney City Council [1999] NSWLEC 246 (City West Housing), Bignold J in the NSWLEC heard a merit appeal in relation to a DA for affordable housing at Pyrmont. Bignold J

considered the relevance of evidence relating to the economic considerations of the DA. Bignold J held at paragraphs [131]–[132] and [137]–[148] as follows: “131. Thus, even in respect of relevance to the alternative objection under SEPP No 1, the Council’s general objection to the admissibility of evidence must be resolved because, in effect, it asserts that economic considerations are not a proper planning consideration. More particularly, that objection is that economic considerations pertaining to a proposed development or to the particular developer are not relevant to the determination of a development application in terms of the EP&A Act s 79C. As I have mentioned, that basis for objection is supported by statements found in some of the decided cases and it is necessary to consider them. 132. The question was more emphatically and categorically resolved in decisions on the scope of town planning legislation in New South Wales that predated the EP&A Act. (That legislation was found principally in the provisions of the Local Government Act 1919 Parts XII and XIIA). … 137. However, whatever be the position under the previous law, the enactment in 1979 of the EPA Act materially and radically changed the scope of planning law in this State. No longer could it be said, in the face of s 90(1)(d), that economic or social considerations were irrelevant to the determination of a development application. Rather, by virtue of that provision ‘the social and economic effects’ of the proposed development ‘in the locality’ became a material planning consideration. 138. The evidence in the present case overwhelmingly supports the finding that a beneficial social effect in the locality of the carrying out of the proposed development is that it will provide affordable housing. Such provision would fulfil a number of the express aims or objectives of the REP,9 including the first of the enumerated ‘affordable housing principles’ contained in cl 56 of

the REP. Conversely, a detrimental social effect in the locality would be caused if the proposed development were not carried out. 139. In these circumstances, the Applicant’s evidence of economic considerations pertaining to the proposed development and to itself (as the exclusively appointed agency for implementing the ‘affordable housing program’ established under the REP) must, in my judgment, be self-evidently regarded as a relevant planning consideration in the present case. Although this conclusion is founded upon the express provisions contained in the REP concerning ‘affordable housing’ and upon the status of the Applicant as the exclusive agency to administer the ‘affordable housing program’ established under the REP, I am further of the opinion that the evidence is also admissible upon a more general basis which is relevant to planning law and its application and which I would formulate by adopting the expression from the judgment of Kerr LJ in R v Westminster City Council ex parte Monahan (1989) 2 All ER 74, as ‘the relevance of financial constraints on the economic viability of a desirable planning development’. The passage in which that particular expression appears is at 96 and is worth repeating because it contains a judicial exposition which I would respectfully adopt and apply in the present case: ‘Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise. A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could, or would

in practice, otherwise not be carried out for financial reasons. Another, no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, ie related in the sense that they can and should properly be considered in combination, where the realisation of the main objective may depend on the financial implications or consequences of others. However, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation.’ 140. In that case, the English Court of Appeal was considering the meaning and scope of the expression ‘material considerations’ in the context of s 29(1) of the Town and County Planning Act 1971 which relevantly provided: ‘… where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan so far as material to the application, and to any other material considerations …’ 141. In so concluding, I am aware that Lloyd J in Architectural Property Services Pty Ltd v Rockdale City Council (1999) NSWLEC 83 has recently stated: ‘(A) part from the limited extent to which economic impacts in the locality may be relevant, described in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, I agree with Mr Hale’s submission that economic considerations are not generally relevant under s 79C of the EP&A Act.’ 142. In so concluding, His Honour also cited a passage from the judgment of Ackner J in J Murphy and Sons Ltd v Secretary of State for the Environment (1973) 1 WLR 560 at 565. 143. However, it is clear from subsequent English decisions,

including in particular R v Westminster City Council that the view of Ackner J has not prevailed: see Encyclopaedia of Planning Law and Practice (1999) Vol 2 at pars 70.12, 70.13, 70.13/1, 70.13/2, 70.13/3, 70.13/4. I would respectfully follow the later English cases in preference to the earlier decision of Ackner J. 144. Again, with respect of Lloyd J, I do not regard the High Court’s decision in Kentucky Fried Chicken, which was concerned with the provisions of the Victorian Town and Planning Act 1961, as providing much guidance to the judicial exposition of the meaning and scope of s 79C(1)(b) of the EP&A Act and in particular, the phrase ‘social and economic impacts in the locality’. Rather, with respect, having regard to the content of the legislation being considered and to its vintage, I would regard the decision in Kentucky Fried Chicken as expressing similar or compatible views to those contained in the cited decisions of the Land and Valuation Court of NSW, in respect of the earlier town planning laws that were contained in the Local Government Act 1919 Pt XII and Pt XIIA. 145. Once the far more comprehensive reach and content of environmental planning under the EPA Act compared to earlier models of town and county [sic. Should read “country”] planning legislation (such as was provided in the Local Government Act Pts XII and XIIA) is fully appreciated, it is apparent that some of the earlier jurisprudence will not provide apposite guidance to the current task of the Court in interpreting and applying the provisions of the EP&A Act. By way of example, a consideration of the meaning and scope of the expression ‘the public interest’ appearing in the EP&A Act s 79C(1)(e) is not, in my respectful opinion, likely to be assisted by adopting the approach taken by Else-Mitchell J in Anthony George to the statutory function imposed by the Local Government Act 1919 Pt XII upon the Board of Subdivision Appeals to ‘have regard to this Act, the ordinances, the circumstances of the case and the public interest’, in respect of which his Honour held (at 167): ‘… but I do not consider that these general words and phrases should be treated as embracing the economic

position of the subdivider or the economics of a particular subdivision’ 146. No doubt, that approach aptly reflected his Honour’s proper understanding of the scope and purpose of town planning, as provided for in the Local Government Act 1919 Parts XII and XIIA. However, given the much more comprehensive scope, content and purpose of the EP&A Act, it would be clearly inappropriate to apply the approach taken in Anthony George No 2 to the interpretation of the expression ‘the public interest’ within the meaning of the EP&A Act s 79C(1)(e). 147. Rather, the meaning to be given to that expression, operating as a ‘material planning consideration’ to the determination of a development application, is one that is consistent with the far wider scope and purpose of the EP&A Act particularly as expressed in the objects stipulated in the EP&A Act s 5. Indeed, the adoption of this wider connotation of the expression ‘public interest’ in the EP&A Act s 79C is already established by the Court of Appeal’s decision in Shoalhaven City Council v Lovell (1996) 136 FLR 58 where Mahoney JA in giving the leading judgment at 63 made the following observations: ‘However, by s 90(1)(q) and (r) the Land and Environment Court is to take into account, in exercising such a discretion, the circumstances of the case and the public interest. The ambit of these terms is wide. In my opinion, the public interest includes measures taken to reduce the risk of aircraft accidents and matters of that kind, whether such risks affect those in the aircraft, those in the air base, or those who, in land near the air base, may be affected by aircraft crashes and the like. … The term public interest is not defined in the legislation. The matters comprehended by it are in my opinion of a wide ambit. In O’Sullivan v Farrer (1989) 168 CLR 210 at 216, Mason CJ, Brennan, Dawson and Gaudron JJ said:

‘Indeed, the expression in the public interest, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitively extraneous to any objects the legislature could have had in view: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J.’ In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339, Kirby P referred to the significance of public interest in the context of environmental planning legislation.’ 148. For all the foregoing reasons, I would hold that Mr Perkins’ evidence concerning economic considerations pertaining to the proposed development and to the Applicant itself, is relevant to — (a) the following matters contained in the EP&A Act s 79C namely — (i) the social and economic effects of the development in the locality and (ii) the public interest and (b) the Applicant’s alternative SEPP No 1 objection. Hence, the evidence is admissible.” Bignold J noted that previous decisions had held that the financial hardship of the applicant and the economic feasibility of the development were not relevant in the consideration of a DA. However, he noted that the EPA Act had fundamentally changed the previous law in making the social and economic effects of a development in the locality a required head of consideration for a DA. Hence, he held that evidence relating to the role of a DA in creating affordable housing was relevant. Bignold J also favoured a broader view that economic viability questions were relevant. He suggested that the decision in KFC v Gantidis was both confined to its applicable legislation and outdated, and that economic factors were relevant also in the public interest head of consideration. However, Bignold J did not explain this broad view with great clarity or precision. The question of whether some change or condition on a development approval is economically viable is likely to be relevant as it relates not to the economic viability

of the development as proposed, but whether a suggested change or condition is justifiable. Provided the rationale for the suggested change or condition relates to a relevant head of consideration, the question of whether the change or condition would be economically viable is a factor relevant to deciding whether that change or condition should be adopted. In this circumstance, the head of consideration is the rationale for the suggested change or condition, rather than a question of economic viability. Economic viability is only a consideration relating to whether the suggested change or condition is required, necessary or justified to be imposed. (This is the approach later taken by the Court of Appeal in Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205 (Randall) at paragraphs [38]–[39] discussed at ¶49-200.) Otherwise, the scope of the social and economic considerations is confined to impacts in the locality. So the consideration is directed at the social and economic consequences of the development in the locality, not the economic consequences of the development on the applicant. Footnotes 9

CCH comment: “REP” is the abbreviation for Regional Environmental Plan.

¶49-190 Cartier Holdings Pty Ltd v Newcastle City Council In Cartier Holdings Pty Ltd v Newcastle City Council [2001] NSWLEC 170 (Cartier), Pearlman CJ in the NSWLEC heard a challenge to a development consent for a development comprising residential apartments and a supermarket at Newcastle West by a rival shopping centre owner. The applicant contended that s 79C(1)(b) had a broader approach than the former s 90(1)(d), and as a result, the decision in Fabcot was not applicable. Pearlman CJ rejected this submission at paragraphs [24]–[26] as follows:

“24. Mr Preston submitted that s 79C(1)(b) is different to s 90(1) (d) in that it requires a broader consideration than was formerly the case. In his submission, this follows from a number of matters. First, s 79C(1)(b) adopts the generic category of ‘likely impacts of that development’, which focuses on impacts per se and is in itself a matter broader in scope than was encompassed in s 90(1)(d). Secondly, ‘environmental impacts on both the natural and built environments’ and ‘social and economic impacts in the locality’ are sub-categories of the generic category, and the generic category is not to be confined by reference to them. Thirdly, s 79C(1)(b) adopts the terms ‘impacts’ rather than ‘effect’, thus suggesting a different consideration from that previously required. Fourthly, it focuses on ‘likely’ impacts, in contrast to s 90(1)(d), and that is also a matter which broadens the consideration. The broadening of scope requires the council to consider economic competition, including economic impact upon individual traders. 25. In my opinion, it is important to note that s 79C(1) contains five separate considerations in contrast to s 90(1), which listed 27 different criteria of consideration. As was noted in the Second Reading Speech, (which was quoted by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1) the legislature intended to streamline and rationalise the criteria embodied in s 90, and replace them with a ‘reduced and general list of considerations’. It seems to me that, by adopting the expression ‘likely impacts of that development’ in s 79C(1)(b), the drafter obviously intended, having regard to the criteria which that expression replaced, to encapsulate a very broad and general range of impacts. But I am not persuaded that, so far as concerns economic impact, there is any material difference between the consideration required by s 79C(1)(b) and the consideration required by s 90(1)(d). It is true that s 79C(1)(b) uses the word ‘impacts’ whilst s 90(1)(d) uses the word ‘effect’. But I agree with the joint submission of Mr Tobias QC, appearing for Restifa,10 and Mr Craig QC, appearing for the council, that the two words are synonymous in a planning sense. The consideration that they each express is the same, that is, the economic result or outcome of the proposed development, a

matter which may be relevant in determining a development application. Nor do I think that the use of the word ‘likely’ in the opening words of s 79C(1)(b) requires a different construction. Economic impact in itself involves, as do many considerations relevant under s 79C(1), an estimation of likelihood or possibility, because actual impact may not be discernible until the development is completed. Furthermore, there was some debate between the bench and counsel during argument about the effect of the commas in s 79C(1)(b) and whether, properly construed, ‘social and economic impacts in the locality’ is not a sub-category of ‘likely impacts of that development’ but is instead an independent category of consideration. On reflection, I think that is an arid debate, taking the task of construction nowhere. Economic impact is to be considered as an impact of the proposed development in the locality, and it must, as I have explained, import a notion of likelihood. So whether it is an independent category of consideration, or a sub-category of ‘likely impact’ is of no consequence. 26. It follows from what I have said that s 79C(1)(b) does not require the consent authority to take an approach in consideration of the relevant matter different from the approach formerly taken in the application of 90(1)(d).” Pearlman CJ then considered the correctness of Fabcot and the decision in City West Housing. She held at paragraphs [31]–[34]: “31. As can be seen from … the decision in Fabcot v Hawkesbury City Council, Lloyd J applied Kentucky Fried Chicken v Gantidis in construing the proper ambit of s 90(1)(d). That was a case which concerned a Victorian planning scheme ordinance which provided that, in determining whether to grant a permit for the use of land, the responsible authority should have regard, amongst other things, to ‘the preservation of the amenity of the neighbourhood’. It is relevant to note that there was no provision equivalent to s 90(1)(d) in the planning scheme ordinance under consideration in this case. …’ 32. I do not think, with respect, that Lloyd J was intending to hold,

in Fabcot v Hawkesbury City Council, that economic considerations can never be town planning considerations, and indeed he expressly said so in par 13 of his judgment in Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83. As I understand his Honour’s reasoning, he was holding that the economic impact of a proposed development upon private individual traders is not of itself a planning consideration, and what is instead required by s 90(1)(d) is a wider and more general consideration of economic impact in the locality. 33. The question of the proper ambit of s 79C(1)(b) arose somewhat obliquely in City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262. One of the issues for determination was whether evidence about the economic impact of the proposed development as a matter of ‘affordable housing’ under the relevant regional environmental plan was admissible as relevant under s 79C(1)(b). In holding that it was so relevant, Bignold J took the opportunity to consider some earlier authorities, including Kentucky Fried Chicken v Gantidis. In par 137, his Honour cautioned against reliance upon authorities decided before the enactment of s 90(1)(d), when, for the first time, social and economic effects of a proposed development were expressly stipulated as a consideration to be taken into account in determining a development application. Specifically, Kentucky Fried Chicken v Gantidis was decided under a planning instrument which did not include such a consideration. With respect, I do not understand Bignold J to have been saying that the interpretation and application of s 79C(1)(b) is completely at large. Rather, he was pointing, in par 145, to ‘the far more comprehensive reach and content of environmental planning under the EP&A Act compared to earlier models of town and country planning legislation …’ and in par 137 his Honour categorised ‘social and economic effects’ as ‘a material planning consideration’. [Emphasis added] 34. In my opinion it is the very scope and content of the EP&A Act which provides the most useful guidance in the interpretation and

application of s 79C(1)(b). The Court should in the first instance have regard to the context in construing provisions in a statute, not merely after an ambiguity has been identified: per Spigelman CJ in Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc and Ors (2000) 48 NSWLR 548 at 575–576, (and see the authorities there cited). The objects set out in s 5 of the EPA Act are very wide in their ambit. They include the proper management of land for the purpose of ‘promoting the social and economic welfare of the community’, the orderly and economic use and development of land, and the protection of the environment. That indicates, in my opinion, that the phrase ‘economic impacts in the locality’ is to be understood in an environmental and planning sense. Hence I would agree with Lloyd J in Fabcot v Hawkesbury City Council that the economic impact of a proposed development upon private individual traders is not per se a proper environmental or planning consideration, and I do not think that the decision of Bignold J in City West v Sydney City Council is, properly understood, authority to the contrary. It is simply not competition as such which is encompassed by s 79C(1)(b). It would be unwise to attempt to categorise the type of economic impact which would properly fall to be considered under s 79C(1)(b), for, of course, each case depends upon its own facts, but it is clear, in my opinion, that the section does not require the consideration of economic impact on individual competitors, except to the extent that any impact upon individual competitors, or competition generally, demonstrates economic impact in the locality as an environmental or planning matter.” Thus, in Cartier, Pearlman CJ held as follows: • Section 79C had not changed the law in relation to social and economic impacts from that previously applying under s 90. • In relation to Fabcot, that case held that the economic impact of a proposed development upon private individual traders is not of itself a consideration under s 79C, but a wider and more general consideration of economic impacts in the locality is still required.

• The decision in City West Housing does not indicate social and economic matters can be considered completely at large. • The words “economic impacts in the locality” need to be considered in the context of the objects of the EPA Act and hence, in an environmental and planning sense. • Section 79C does not require the consideration of economic impact on individual competitors, except to the extent that any impact on individual competitors or competition generally demonstrates economic impact in the locality as an environmental or planning matter. Footnotes 10

CCH comment: Restifa was one of the parties in the proceedings who was the applicant for the DA.

¶49-200 Randall Pty Ltd v Willoughby City Council In Randall, the NSW Court of Appeal heard on appeal from a merit appeal determination in the NSWLEC from the owner of a car park in a building at Chatswood. The owner was seeking to vary a condition of a development consent which required free parking for the first two hours. The issue of law before the NSW Court of Appeal related to what properly were economic impacts in the locality. Basten JA (with whom Giles JA and Santow JA agreed) refused leave to appeal but discussed the issues involved in the two propositions argued, namely: (1) the effects of changing the current free parking period were purely economic and had no effect on the amenity in the locality, and (2) there would be no overall economic impact as any business lost in the building in question would be transferred elsewhere in the same locality.

Basten JA noted that the statutory context in KFC v Gantidis differed considerably from that in the EPA Act. Basten JA cautioned against the broad conclusion that there is any strict separation between economic competition and planning considerations. He noted that Pearlman CJ in Cartier sought “… to steer a course between the relatively restrictive construction adopted by Lloyd J in Fabcot and a broader approach derived from the judgment of Bignold in City West Housing …”. Basten JA referred to the passage in Cartier at paragraph [34] cited previously and held at paragraphs [33]–[36] and [38]–[39] as follows: “33 Three points need to be made in relation to this passage and the general line of authority. First, in considering the historical development of planning law, it is useful to refer to the consideration by Bignold J in City West which extended not only to Kentucky Fried Chicken, but to authorities in this State dealing with the relevance of economic matters. After reference to several decisions of Else-Mitchell J in relation to the earlier planning legislation found in the Local Government Act 1919 (NSW), Bignold J concluded at [137]: ‘However, whatever be the position under the previous law, the enactment in 1979 of the EP&A Act materially and radically changed the scope of planning law in this State. No longer could it be said, in the face of s 90(1)(d), that economic or social considerations were irrelevant to the determination of a development application.’ That conclusion is reflected in the qualification accepted by Pearlman J in the last sentence of the passage in Cartier set out above. 34 Secondly, reliance upon the objects of the legislation, set out in s 5, which ‘are very wide in their ambit’ (to adopt the words of Pearlman J), provides little assistance in construing specific statutory provisions. The objects are of greater use in seeking to ascertain the limits of a consideration such as ‘the public interest’, set out in s 79C(1)(e).

35 Thirdly, the suggested limitation of s 79C(1)(b) to only those economic impacts which can be described as ‘an environmental or planning matter’ is unclear both as to the extent and the justification for the limitation. Leaving aside the question of ‘environmental’, which is not relied upon by the Claimant in the present circumstances, the concept of a ‘planning matter’ is largely meaningless as an implied constraint. The EP&A Act may reasonably be described as ‘planning legislation’: those factors which it prescribes as mandatory or discretionary considerations may therefore be described as ‘planning matters’. There is no independent point of reference to avoid circularity. In my view, it is neither necessary nor appropriate to impose such a gloss on the language of par (b) of s 79C(1). That is not to say that all economic impacts are mandatory considerations, but rather that any limitation must be specific and justified. 36 It remains, of course, to consider whether there is some inviolable constraint on the statutory concept, which has been contravened in the present case. At the point of greatest limitation, it may be argued that the economic impact of a proposal on the application for development consent may not be the kind of impact which should be considered. Nevertheless, as is illustrated by the judgment of Kerr LJ in R v Westminster City Council; Ex parte Monahan [1989] 3 WLR 408 at 425, quoted by Bignold J in City West at [139], the imposition of a condition may involve financial constraints on the economic viability of a particular development, which may be of significance in particular circumstances. At the very least, such a consideration will not necessarily fall outside the boundary of ‘planning’ considerations sought to be identified by the Claimant. … 38 This was not a case in which either the purpose or the effect of the decision was or would be to interfere with market forces. No question arose as to the establishment of a new business which might compete with existing businesses. Rather, the question was whether the Claimant should be entitled to charge for an aspect of its services for which it cannot now charge, because of the

existence of a condition which the Claimant assumed to have been validly imposed. In this situation it would not have been surprising if the Claimant had sought to call evidence of the economic impact of the condition on its operations. But its present argument would appear to entail the conclusion that such evidence should not be considered. If a planning authority can impose a condition regulating the circumstances in which charges can be levied, it would be absurd to suggest it cannot consider the economic impact of imposing or varying such a condition. 39 It is therefore implausible to suggest that economic impacts on others must fall outside the statutory concept. This point is illustrated by returning to the concept of direct economic impact, noted above. The imposition of a parking fee must have a direct economic impact on each person who thereafter uses the parking lot for a period of less than two hours, that being the period of free parking under the existing consent conditions. No doubt the impact on one individual would be dismissed as insignificant. However, the direct impact must properly be understood as applying to many individuals over an extended period of time. This impact cannot be so readily dismissed and the Claimant expressly resiled from the proposition that any such impact could be ignored as ‘de minimis’. No doubt that concession was impelled by the consideration that the Claimant’s strenuous pursuit of the proposed condition variation demonstrated that the power to charge fees was a matter having significant economic consequences for it. It would then be hard pressed to deny that there was any economic impact on users, on the basis that they were a disparate group of individuals. Indeed, arguably the consent authority would be entitled to identify the economic impact as including both the adverse effect on the car parking community and the equivalent beneficial economic impact on the Claimant. The Claimant has failed to demonstrate legal error in this respect on the part of the Commissioner.” Basten JA’s conclusions in Randall at paragraph [45] do: “… not rely on the dicta in Kentucky Fried Chicken as setting the relevant legal limits to the proper construction of s.79C(1)(b).

Further, without seeking to identify precisely the limit sought to be imposed in Fabcot and Cartier Holdings, it is at least arguable from the analysis set out above that a broader construction of s.79C(1)(b) should be adopted than those in the Land and Environment Court would indicate.” In relation to arguments regarding what constituted “in the locality”, Basten JA noted the words were “in the locality” and not “on the locality” and the meaning of the word “locality” is not legally constrained and involves no question of law. Basten JA held that one building could be seen as a relevant locality. He held at paragraph [43] as follows: “43 At the next stage, there is a question as to whether the Commissioner erred in law in treating the locality as the Regency, within which the Claimant operates its business, but which includes other strata title lot holders operating their separate businesses. There is little sense, in planning terms, in denying a power to consider economic impacts on this collection of businesses, simply because they happen to be under one roof. Such a result is not required as a matter of statutory interpretation. Accordingly, the Regency itself could be seen as a relevant ‘locality’. Other possibilities might be considered; however, these conclusions are sufficient to dispose of the Claimant’s case, which requires the exclusion of these possibilities in order to establish its ‘zero sum game’ argument.” Conclusions The following conclusions may be derived from the decision in Randall: • KFC v Gantidis does not set the legal limits for the proper consideration of economic impacts. • It is at least arguable that the limitations on the extent to which economic impacts are relevant should be broader than those proposed in Fabcot and Cartier. • The suggestion in Cartier that only economic impacts which can

be described as environmental or planning matters is neither necessary nor appropriate. • It would be absurd to argue that the economic impact of imposing or changing a condition could not be considered. • The question of what constitutes the locality is solely a question of fact. The consideration is, however, an economic effect in the locality, not on the locality and one building could be seen as a relevant locality. Hence, Randall indicated the parameters of what can be considered as an “economic impact” of a development under s 79C are now an evolving area moving beyond the narrow confines in KFC v Gantidis. The extent to which it evolves is as yet untested. Some instructive parallels may be gained by examining how the United Kingdom law has approached this question. Of course the statutory context differs considerably. In the UK, in determining an application for planning permission, the local planning authority is required to have regard to the development plan and “any other material considerations”. Hence, unlike the EPA Act, the UK law does not expressly include economic impacts as a relevant consideration.

¶49-210 R v Westminster City Council, ex parte Monahan In R v Westminster City Council, ex parte Monahan [1990] 1 QB 87; [1989] 2 All ER 74 (Ex parte Monahan), the UK Court of Appeal heard a challenge to the validity of an approval brought by members of the Covent Garden Community Association against the approval granted by the Westminster City Council for the redevelopment of the Royal Opera House (ROH) built in 1858. The ROH operator sought to undertake a range of improvements necessary for it to maintain and improve its standing as one of the leading opera houses in the world. The estimated cost of these improvements was £56m, of which £33m was proposed to be derived from the profits of commercial premises constructed nearby, while the remaining £23m would be privately raised. One of the grounds of challenge was whether the Council was

entitled to take into account, in granting planning approval, that unless the commercial development was approved, the improvements to the ROH could not be achieved financially. Thus, the Court was asked to determine whether the financial considerations were a material consideration in the determination of a DA. Kerr LJ held at p 94–98 in [1989] 2 All ER 74 as follows: “The issues ‘… The first [issue] raises the question whether financial considerations can properly be regarded as material in granting permission for a development which would otherwise have been rejected on planning policy grounds or would only have been allowed to be carried out in some different way. For the purposes of that submission there is no challenge to the committee’s conclusion, which it clearly accepted on the facts, that the proposed extension and …’ [p 95] … improvements to the Opera House could only be carried out if the funds generated by the proposed office accommodation will be available to make up the anticipated deficit. … The first issue: can ‘any other material considerations’ in s 29(1) properly include financial considerations? This issue can of course be phrased in many differently contentious ways. If one seeks a negative answer one might pose the question whether it can possibly be permissible to authorise a development which, in planning terms, is undesirable or even indefensible in order to provide funds for some other desirable development. On the other hand, a more moderate way of putting the issue would be to ask whether, as a matter of common sense, there could be any reason why the financial viability of a desirable development, and the means of achieving it, must necessarily be immaterial considerations in determining applications for planning permission. Similarly, one can argue by giving illustrations at different points of the spectrum. …

[p 96] … Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise. A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could, or would in practice, otherwise not be carried out for financial reasons. Another, no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, i.e., related in the sense that they can and should properly be considered in combination, where the realisation of the main objective may depend on the financial implications or consequences of others. However, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation. … There is no legislative definition of ‘other material considerations’ in section 29(1). In passages from two decisions of the House of Lords the scope of these words has merely been circumscribed in wide terms, but these would not exclude financial considerations from being treated as material in appropriate cases. In Newbury District Council v Secretary of State for the Environment [1981] A.C. 578, 599 Viscount Dilhorne dealt with this aspect. He referred to section 29(1) and then quoted the following well known passage from the judgment of Lord Denning in Pyx Granite Co. Ltd. v Ministry of Housing and Local Government [1958] 1 Q.B. 554, 572:

‘Although the planning authorities are given very wide powers to impose ‘such conditions as they think fit,’ nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.’ Having pointed out that this statement had already been approved by the House of Lords he went on: ‘It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them …’ This passage was taken a little further in the speech of Lord Scarman in Great Portland Estates plc v Westminster City Council [1984] All ER 744 at 750, [1985] AC 661 at 670, with which the other members of the House of Lords expressed agreement. The appeal had been concerned with a development plan whose validity was challenged on the ground that it contained proposals for the protection of specific industrial activities; it was said that these were concerned with the interests of particular users of land rather than the development and use of land in itself. In that context Lord Scarman cited a sentence from an earlier judgment of Lord Parker C.J. in which he had said that ‘what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier’ (see East Barnett UDC v British Transport Commission [1961] 3 All ER [p 97] 878 at 884, [1962] 2 QB 484 at 491). Then Lord Scarman went on [1985] A.C. 661, 670: ‘It is a logical process to extend the ambit of Lord Parker C.J.’s statement so that it applies not only to the grant or refusal of planning permission and to the imposition of

conditions but also to the formulation of planning policies and proposals. The test, therefore, of what is a material ‘consideration’ in the preparation of plans or in the control of development (see section 29(1) of the Act of 1971 in respect of planning permission: section 11(9), and Schedule 4 paragraph 11(4) in respect of local plans), is whether it serves a planning purpose: see Newbury District Council v Secretary of State for the Environment [1981] A.C. 578, 599 per Viscount Dilhorne. And a planning purpose is one which relates to the character of the use of land. Finally, this principle has now the authority of the House. It has been considered and, as I understand the position, accepted by your Lordships not only in this appeal but also in Westminster City Council v British Waterways Board [1984] 3 All ER 737, [1985] AC 676, a case in which argument was heard by your Lordships immediately following argument in this appeal. However, like all generalisations Lord Parker C.J.’s statement has its own limitations. Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control.’

Admittedly, neither of these cases was concerned directly with financial considerations similar to the present case. And it is no doubt true that planning authorities must be particularly careful not to give way too readily to assertions of financial constraints as a ground for relaxing policies which have been formulated in the public interest. Thus, take another illustration given by counsel for the ROH. Suppose that an urban authority had a policy of requiring the use of green tiles, which are substantially more expensive than others, in areas of residential developments bordering on the countryside. If a developer who wished to erect an otherwise highly desirable housing estate claimed that this would be uneconomic if green tiles had to be used, then the authority would clearly not be bound to reject his application out of hand. It would be bound to consider it on its merits, although it might well be highly sceptical about the assertion that the economic viability of the project would founder if green tiles had to be used. But if, after proper consideration, this were indeed the conclusion reached on a basis which would not admit of a charge of irrationality, then there could be no question about the validity of a decision which permitted the use of red or black tiles in the circumstances. This takes one to the authorities in which financial considerations have played a direct part. In Bradford City Metropolitan Council v Secretary of State for the Environment [1986] 1 E.G.L.R. 199, 202d Lloyd L.J. said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold and that this must be true as a general proposition. However, the reported cases which can properly be described as falling within this class were concerned with situations in which planning and other consents had been granted for ulterior, and therefore impermissible, motives. … [p 98] … involve the acceptance, faute de mieux, of a relatively undesirable feature of a development as a compromise or sacrifice in order to

ensure the viability of the main project which is judged to be sufficiently desirable to warrant a partial relaxation of policy. But Mr. Carnwath challenged this analysis. While agreeing that no ulterior motive was involved in the present case, he did not accept what he called the ‘but for’ argument, that but for the permission for the undesired office accommodation, the desired development of the opera house could or would not take place. He pointed out that under the Local Government Act 1972 the council had the necessary power to make up any financial deficiency and claimed that the situation was therefore no different from Hall & Co. Ltd. v Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240 and Bradford City Metropolitan Council v Secretary of State for the Environment [1986] 1 E.G.L.R. 199 in principle. I cannot agree with this analysis. There are few, if any, situations in which the ‘but for’ argument could not be countered by pointing to alternatives; but alternatives of a nature which the relevant authority may reasonably consider to be uneconomic and therefore impracticable. Such situations do not invalidate the ‘but for’ argument. If sufficient money is made available almost anything can be done. But this approach provides no test for the balancing exercise involved in the realistic determination of most planning applications. In the present case …, the council was entitled to proceed on the basis that, but for the permission to ROH to include the office accommodation in the proposed development, this would not proceed at all.” Kerr LJ dismissed the appeal as did Nicholls LJ and Staughton LJ, with the latter two adding some observations but not explicitly concurring with Kerr LJ’s judgment. Conclusions Taking Kerr LJ’s judgment as the statement of principle from the UK Court of Appeal, the following conclusions may be drawn: • In the UK, financial considerations can properly be regarded as material considerations in the determination of a DA, provided those considerations are not for an ulterior or improper purpose or manifestly unreasonable.

• Factors such as the economic viability of a desirable planning development are unavoidable facts. To exclude them would be unreal and contrary to common sense. • Virtually all planning decisions involve a balancing exercise or trade-off between particular planning outcomes and their financial feasibility. • Personal circumstances of an occupier, personal hardship and the difficulties of valued business are not to be ignored either as a background consideration or directly in exceptional or special circumstances. • Planning approvals cannot be bought or sold, as this involves making a decision for an ulterior motive.

¶49-220 R (On the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council A more recent UK decision is R (On the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20 (Sainsbury), a decision of the UK Supreme Court. This case related to a challenge to the compulsory purchase of private land in Wolverhampton, 86% of which was owned by Sainsbury’s Supermarkets Ltd with the remainder owned by Tesco Stores Ltd. The site in question was derelict. Tesco owned a second site 850 metres away which contained a number of historic buildings in poor condition. The Council wished the second site to be redeveloped as part of urban regeneration. Tesco contended the redevelopment of the second site in accordance with the Council’s requirements was not financially viable. It offered to link the two sites together with the redevelopment of the first site subsidising the redevelopment of the second site. The Council agreed the redevelopment of the second site needed a cross-subsidy. The Council approved a compulsory purchase order of the land owned by Sainsbury’s at the first site to facilitate the development of the site by Tesco. Sainsbury challenged this decision on the basis that the Council was not entitled in

compulsory acquiring part of the first site to consider the redevelopment of the second site. The UK Supreme Court considered in detail the extent to which a consent authority was permitted to consider financial considerations in the granting of a planning permission. Lord Collins SCJ reviewed the various authorities. In relation to Ex parte Monahan, Lord Collins said at paragraphs [54] and [58]–[59] as follows: “54. Kerr LJ’s reasoning was essentially this: (1) in composite or related developments (related in the sense that they can and should properly be considered in combination) the realisation of the main objective may depend on the financial implications or consequences of others; (2) provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation; (3) financial considerations may be treated as material in appropriate cases: Brighton Borough Council v Secretary of State for Environment (1978) 39 P & CR 46; Sosmo Trust Ltd v Secretary of State for the Environment [1983] JPL 806. He concluded (at 117) by agreeing with Webster J’s conclusion at first instance. Webster J had said: ‘It seems to me to be quite beyond doubt [but] that the fact that the finances made available from the commercial development would enable the improvements to be carried out was capable of being a material consideration, that is to say, that it was a consideration which related to the use or development of the land, that it related to a planning purpose and to the character of the use of the land, namely the improvements to the Royal Opera House which I have already described, particularly as the proposed commercial development was on the same site as the Royal Opera House and as the commercial development and the proposed improvements to the Royal Opera House all formed part of one proposal.’ …

58. The ratio of the decision in Monahan is that where there are composite or related developments (related in the sense that they can and should properly be considered in combination), the local authority may balance the desirable financial consequences for one part of the scheme against the undesirable aspects of another part. In R v Plymouth City Council, ex parte Plymouth and South Devon Cooperative Society (1993) 2 EGLR 206 at 210, Hoffmann LJ observed that the Ex p Monahan decision concerned what was treated as a single composite development, and held that there was a sufficient nexus between the office development and the Opera House improvements to entitle the planning authority to say that the desirability of the latter fairly and reasonably related to the former, because of (1) the financial dependency of the one part of the development on the other and (2) their physical proximity. 59. The Ex p Monahan decision demonstrates, if demonstration were necessary, that financial considerations may be relevant in planning decisions. In Sosmo Trust case [1983] JPL 806 at 808 (cited on this point with approval by Kerr LJ in Ex p Monahan (1989) 2 All ER 74 at 99, [1990] 1 QB 87 at 115–116) Woolf J accepted that the consequences of the financial viability or lack of financial viability of a development were a potentially relevant factor: the true question was not whether a development would be viable but what the planning consequences would be if it were not viable: see also Sovmots Investments Ltd v Secretary of State for the Environment [1977] QB 411, 425, per Forbes J (for further proceedings see [1977] QB 411; [1979] AC 144).” Lord Collins SCJ then reviewed the decision in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 ALL ER 636 (Tesco). In Tesco, there were competing retail development proposals. The proponent of one, Tesco, had offered to fully fund a link road if it obtained an approval. The Secretary of State rejected the Tesco proposal on the grounds that the funding offer did not fairly and reasonably relate to the development as the relationship between the proposed development and the link road was tenuous. The House of Lords agreed that the Secretary of State had correctly taken the offer

into account but accorded it little weight. Lord Collins in Sainsbury analysed the Tesco decision as follows at paragraphs [65]–[68] as follows: “65. The House of Lords held that the Pyx Granite/Newbury test for planning conditions was not applicable in the context of the question whether section 106 obligations were material considerations under section 70(2). Lord Keith of Kinkel said ([1995] 2 All ER 636 at 642, 647, [1995] 1 WLR 759 at 764, 770): ‘Sir Thomas Bingham MR in the course of his judgment in this case said that ‘material’ in [section 70(2)] meant ‘relevant,’ and in my opinion he was correct in this. It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense … … An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker and in exercising that discretion he is entitled to have regard to his established policy.’ 66. All members of the appellate committee agreed with Lord Keith’s opinion, and the ratio of the decision is that for the purposes of section 70(2) any benefit whose connection with the development is more than de minimis will be a material

consideration, but that the weight to be given to any particular material consideration is entirely a matter for the decision-maker. 67. It has often been said that planning permissions should not be bought or sold: see Bradford Metropolitan City case [1986] 1 EGLR 199 at 202 per Lloyd LJ (on which see Ex p Plymouth and South Devon Co-operative Society [1993] 2 EGLR 206 at 209 per Evans LJ, Ex p Monahan [1989] 2 All ER 74 at 104, [1990] 1 QB 87 at 122 per Straughton LJ and the Tesco Stores case [1995] 2 All ER 636 at 642–643 and 659, [1995] 1 WLR 759 and 782 per Lord Keith and Lord Hoffmann respectively); and accepted as a matter of policy in ODPM11 Circular 05/2005, Planning Obligations, Annex B, para B6 (reflecting its predecessors): ‘The use of planning obligations must be governed by the fundamental principle that planning permission may not be bought or sold. It is therefore not legitimate for unacceptable development to be permitted because of benefits or inducements offered by a developer which are not necessary to make the development acceptable in planning terms …’ 68. Responding to the point that the approach in the Plymouth decision leads to the prospect of the sale and purchase of planning permissions, Lord Hoffmann contrasted cases in which there was a ‘sufficient connection’ between the development and a planning obligations and those in which they were ‘quite unconnected.’ He said ([1995] 2 All ER 636 at 659, [1995] 1 WLR 759 at 782): ‘This reluctance of the English courts to enter into questions of planning judgment means that they cannot intervene in cases in which there is sufficient connection between the development and a planning obligation to make it a material consideration but the obligation appears disproportionate to the external costs of the development. [R v Plymouth City Council, ex p Plymouth and South Devon Co-operative Society Ltd, [1993] 2 EGLR 206], was such a case, leading to concern among academic writers and Steyn LJ in the present case that the court was condoning the sale of planning

permissions to the highest bidder. My Lords, to describe a planning decision as a bargain and sale is a vivid metaphor. But I venture to suggest that such a metaphor (and I could myself have used the more emotive term ‘auction’ rather than ‘competition’ to describe the process of decision-making process in the Plymouth) is an uncertain guide to the legality of a grant or refusal of planning permission. It is easy enough to apply in a clear case in which the planning authority has demanded or taken account of benefits which are quite unconnected with the proposed development. But in such a case the phrase merely adds colour to the statutory duty to have regard only to material considerations. In cases in which there is a sufficient connection, the application of the metaphor or its relevance to the legality of the planning decision may be highly debatable. I have already explained how in a case of competition such as the Plymouth case, in which it is contemplated that the grant of permission to one developer will be a reason for refusing it to another, it may be perfectly rational to choose the proposal which offers the greatest public benefit in terms of both the development itself and related external benefits. …’” Lord Collins concluded at paragraphs [70]–[72] and [75]: “70. What can be derived from the decisions in the planning context, and in particular the Tesco case, can be stated shortly. First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. These principles provide the answer to the questions raised in Monahan about the development in Victoria or the swimming pool on the other side of the city. They do not, as Kerr LJ thought, raise questions of fact

and degree. There must be a real connection between the benefits and the development. 71. Given the similar context, there is no reason why similar principles should not apply to compulsory acquisition for development purposes provided that it is recognised that, because of the serious invasion of proprietary rights involved in compulsory acquisition, a strict approach to the application of these principles is required. There must be a real, rather than a fanciful or remote, connection between the off-site benefits and the development for which the compulsory acquisition is made. 72. What is the connection in the present case? The expression ‘cross-subsidy’ has been much used by Tesco and the Council. The expression bears a special meaning in this case. … Here all it means is that Tesco says that (a) the Council’s requirements for the Royal Hospital site have the result that Tesco cannot develop it profitably; and (b) Tesco will undertake its development if it can develop the Raglan Street site. Tesco says that the consequence of (a) and (b) is that the Raglan Street site development will ‘cross-subsidise’ the Royal Hospital site development. But the only connections between the proposed Raglan Street site and Royal Hospital site developments are that (a) Tesco says that it will develop the latter if it can develop the former; (b) it has contractually agreed to perform building works on the Royal Hospital site if it acquires the Raglan Street site. The commercial effect will be that the deficiency on the Royal Hospital site will be made up, or ‘cross-subsidised,’ by the Raglan Street site development. … This is only a connection in the sense that either (a) the Council is being tempted to facilitate one development because it wants another development; or (b) Tesco is being tempted to undertake one uncommercial development in order to obtain the development it wants. … 75. … For the reasons given above, the claimed financial connection between the two sites was not such as to amount to a relevant matter. It is true, as Sullivan LJ said (at [34]), that the

financial viability of a proposed re-development scheme would be a highly material factor, and that a proposed re-development of a CPO12 site might have to be cross-subsidised. But Sullivan LJ was wrong to conclude that it followed that a cross-subsidy from a CPO site to another site was a material consideration. The fact that a conditional agreement for sale linked the obligation to carry out works on the Royal Hospital site was not a relevant connection.” Lord Walker SCJ, Lady Hale SCJ, Lord Mance SCJ and Lord Hope DP agreed with Lord Collins, as did Lord Phillips P in relation to the question of what is a material consideration in relation to an application for planning permission. Lord Walker SCJ held at paragraph [87]: “87. Since their proposals are such that there is little, if anything, to choose between them in planning terms, why should not the local authority look to some substantial extraneous benefit which one contender offers, rather than having to make the difficult choice of a winner between contenders whose proposals are equally satisfactory on planning grounds? The answer is simply that it is not the right way for a local authority to make a decision as to the exercise of its powers of compulsory purchase, any more than it could choose a new chief executive, from a short list of apparently equally well qualified candidates, by holding a closed auction for the office. As Lord Keith of Kinkel said in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 at 647; [1995] 1 WLR 759, 770, ‘An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission.’” In relation to the relevance of the offer by Tesco to proceed with redevelopment of the second site if it was given the first site, Lord Brown SCJ in dissent held that it was a material consideration and that the fact that the benefit offered was unconnected to the

development was not relevant. Lord Brown SCJ held at paragraphs [175]–[178]: “175. The proposition that planning consent cannot be bought or sold, although stated nearly a quarter of a century ago to be ‘axiomatic’ (by Lloyd LJ in City of Bradford Metropolitan Council v Secretary of State for the Environment [1986] 1 EGLR 199 at 202), needs to be understood for what it is, essentially a prohibition against the grant of a planning permission for what would otherwise be unacceptable development induced by the offer of some entirely unrelated benefit. What it is not is a prohibition against, for example, the grant of permission for a development which is contrary to local planning policy on the basis that it needs to be economically viable to ensure that the site does not remain derelict — see Sosmo Trust Ltd v Secretary of State for the Environment [1983] JPL 806, where, indeed, Woolf J held that no Secretary of State could reasonably have regarded the economic factor in that case as irrelevant. Nor, of course, did the principle prevent office development being permitted in Ex p Monahan [1989] 2 All ER 74, [1990] 1 QB 87 essentially because the proposed refurbishment of the Opera House was financially dependant upon it. 176. Ex p Monahan, it must be noted, is not authority for the proposition that, but for the development there ‘forming part of one composite development project’, the office building would not have been permitted. As was expressly recognised, no discernible legal principle would have supported such a view. In any event Monahan is not binding on this Court. That aside, Tesco later established that offers such as that in Monahan to refurbish the Opera House do not have to ‘fairly and reasonably relate to the permitted development’ (as at the time of Monahan would have been supposed). Had Tesco in the present case offered (uneconomically) to redevelop the RHS13 to the benefit of the public in consideration of some planning advantage elsewhere in Wolverhampton’s area, it is difficult to see why Wolverhampton would have been legally obliged to refuse 177. Still less does the principle prevent rival developers, in

competitive situations such as arose in Ex p Plymouth and South Devon Co-operative Society [1993] 2 EGLR 206 and the Tesco Stores case [1995] 2 All ER 636, [1995] 1 WLR 759, seeking to outbid each other as to the external benefits their proposals would bring with them — as both those cases amply demonstrate. It is surely one thing to say that you cannot buy a planning permission (itself, as I have sought to show, only in a narrow sense an absolute principle); quite another to say that in deciding as between two competing developers, each of whose proposals is entirely acceptable on planning grounds, you must completely ignore other planning benefits on offer in your area. 178. Let it be assumed, however, contrary to my view but as I understand every other member of this Court to have concluded, that, had the present issue arisen in the context of rival applications for planning permission, Tesco’s offered redevelopment of the RHS would have had to be characterised as a wholly unconnected planning benefit and so not a material consideration under section 70. That majority view, as Lord Phillips himself points out at paragraph 139, is ‘not entirely rational’ even in a non-competitive planning context; ‘less rational’ still ‘where two developers are competing for the grant of planning permission in circumstances where the grant to one or the other is justifiable, but not to both’.” Conclusions The following conclusions may be drawn from Sainsbury: • The question of “what is a relevant consideration for a DA” is a question of law, but the weight given to it is a matter for the decision-maker. • Financial viability may be a relevant consideration, provided it relates to the development in question. • Financial dependency of part of a composite development on another part may be a relevant consideration where the proposed development will finance other relevant planning benefits.

• Off-site benefits which are related to or connected with the development will be relevant, but they need to be properly connected to the development. • A proposed off-site benefit which has nothing to do with the proposed development is not a relevant consideration and can be viewed as an attempt to buy a planning approval. Thus, the English law suggests that a very broad range of financial and economic factors may be relevant considerations, extending to offers of off-site benefits, provided the matters have a real connection to the DA in question. And this is in a statutory context which does not include something akin to s 79C(1)(b) of the EPA Act, which expressly authorises a consent authority to consider social and economic impacts. The English authorities add force to the findings in Randall of a broader approach in New South Wales to the consideration of economic impacts in the consideration of a DA. Footnotes 11

CCH comment: “ODPM” refers to the Office of the Deputy Prime Minister.

12

CCH comment: “CPO” refers to Compulsory Purchase Order.

13

CCH comment: “RHS” refers to Royal Hospital site.

¶49-230 Telstra Corporation Ltd v Hornsby Shire Council Further to that which was discussed in ¶49-140, in Telstra, Preston CJ in the NSWLEC held in relation to the relevance of fears and concerns without a justifiable basis to determining a DA as follows at paragraph [195]:

“195 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EPA Act: Newton v Wyong Shire Council, unreported, LEC No. 40135 of 1982, 6 September 1983, McClelland J, pp 110, 111; Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 at 92; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350[22]; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[62]. ‘Mere local prejudice’ or ‘the resistance of uninformed opinion to innovation’ is not a basis for rejecting a proposal: Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 at 263; Foreman v Sutherland Shire Council (1964) 10 LGRA 261 at 269.”

¶49-240 Newton v Wyong Shire Council The reference in Telstra to the decision of Newton v Wyong Shire Council, Unreported decision of McClelland CJ in the NSWLEC No 40135 of 1982 of 6 September 1983 (Newton v Wyong), related to a challenge under Pt 5 of the EPA Act in relation to the Gosford Wyong Sewerage Scheme. In that case, McClelland CJ referred to the relevance of unfounded community fears and concerns in determining whether an activity is likely to significantly affect the environment. McClelland CJ’s findings in Newton v Wyong are likely to be applicable to the consideration of social impacts of a development in s 79C(1), as was held by Preston CJ in Telstra. McClelland CJ in Newton v Wyong held as follows at p 110–111: “His (Mr. Stewart’s) reply did, however, appear to import into the interpretation of the regulations to Part V what I can only describe as a metaphysical ingredient. This was expressed in various ways. The definition of ‘environment’ in s.4 of the Act as including ‘all aspects of man’s surroundings’, Mr. Stewart submitted, did not necessarily mean physical aspects. The fact that members of the local community saw the effluent as a pollutant and as offensive, whatever the

treatment process may have done to it had caused alarm ‘and this alarm should have been investigated; it is an aspect of the environment and warranted investigation.’ I would have thought that the respondents’ duty to the objectors was limited to an investigation of the rational basis, if any, for the alarm to which Mr. Stewart referred. Having concluded, after the most elaborate scientific investigations, that such alarm lacked a rational basis, the respondents were entitled to dismiss it as a factor to be taken into account in reaching a decision as to an outfall at Norah Head. I am reminded of Mr. Oddie’s remark about the difficulties of laying to rest an idée fixe. In the same context, referring to Regulation 56(d) Mr. Stewart submitted that, as this regulation is concerned with the diminution of the aesthetic recreational scientific or other environmental quality or value of the locality, it asks for ‘an examination of the quality of the area, in other words, an investigation into the subjective views of the local community.’ In the first place, I would comment that in my own experience I have encountered in this Court no environmental dispute to which the subjective views of the local community have been aired ad majorem nauseam than in the present case. (See the evidence of Mr. Oddie and Mr. Hilton.) In the second place, I cannot imagine that this submission was put by Mr. Stewart in ignorance of that evidence. I am reminded of the submission, put by Mr. Wilcox in opening the applicant’s case, that regard should be had to the ‘perception of residents and visitors, even if the scientific evidence could not support that perception’. After taking account of the direct submissions, suggestions and emotional overtones contributed by Mr Wilcox and Mr. Stewart in upbraiding the council for its ‘clinical’ approach and its failure to have regard to anything but ‘physical’ factors, I had an uneasy feeling that an attempt was being made to smuggle into planning and environmental law a new doctrine which might be expressed as follows: If local residents however mistakenly, believe that a

proposed scheme will be environmentally damaging, that belief is a factor, and an important one, which determining authorities should take into account in reaching their decisions. A determining authority is directed by s.111 of the Environmental Planning and Assessment Act to take into account to the fullest extent possible all matters affecting or likely to affect the environment of an activity. It is hard to see how the delusions of local residents fit into this category.” Thus, fears or concerns relating to a DA, which do not have a rational or justified foundation, do not constitute a social impact under s 79C(1) of the EPA Act.

¶49-250 New Century Developments Pty Ltd v Baulkham Hills Shire Council In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154 (New Century Developments), Lloyd J in the NSWLEC heard a merit appeal against the refusal by the Council of a DA for a Muslim house of prayer at Annangrove. The application had attracted 5,181 submissions of which 5,170 were objections. Lloyd J held in relation to the consideration of the large number of objections at paragraphs [58]–[65] and [67]–[70] as follows: “58 The consent authority must also consider the community responses to the proposed development as set out in the submissions made to the council (s 79C(1)(d) and (e) of the EPA Act). The community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act: ‘to provide increased opportunity for public involvement and participation in environmental planning and assessment’ (s 5(c) of the EP&A Act; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415 per Bignold J). 59 The impact of intangible elements as compared with physical environmental effect is illustrated by Hely Horne Perry Medcalfe Architects Pty Ltd v Sydney City Council (NSWLEC, Senior

Commissioner Jensen, 16 February 1999, unreported). In that case the intangible deleterious impact of activities and people associated with the proposed public house and gambling saloon upon an area likened to a special ‘sacred place’, being St Andrews Cathedral and the Sydney Town Hall, proved determinative in that merits appeal. 60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate (Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds (Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact (Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria. 61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62 A fear or concern without rational or justified foundation is not

a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that ‘… the demonstrable social effect of a particular …use is relevant under s 90(1)(d) [now section s 79C]’ (see also Dixon at [48]). 64 The assessment of the specific objections raised by the local residents shows that the concerns raised by them, objectively assessed, must be afforded little weight. As is shown by the consideration of the specific objections, discussed above, they appear to have little basis in fact. 65 It must be borne in mind that the development application is for a house of prayer. One of the draftsmen of the United States Constitution, Thomas Jefferson, regarded freedom of religion as ‘the most inalienable and sacred of all human rights’ (Thomas Jefferson: Virginia Board of Visitors Minutes, 1819, from The Writing of Thomas Jefferson, Memorial Edition, Washington, D.C. 1903–04, Vol. 19, p. 416). The words of the First Amendment to the United States Constitution found their way into s 116 of the Constitution of the Commonwealth of Australia: ‘the Commonwealth shall not make any law … for prohibiting the free exercise of any religion’. …

67 In my view the comments of McHugh JA [in Canterbury Municipal Council v Moslem Alaway Society Ltd (1985) 1 NSWLR 525 at 543–4] apply equally to the construction of the words ‘social … impacts in the locality’ as used in s 79C(1) of the EP&A Act. In the interest of preserving religious equality and the freedom to exercise religious beliefs, the Court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so. 68 The views of McHugh JA to which I have referred were expressly adopted and applied by Mason P (Stein and Giles JJA concurring) in House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at 508. That was a case in which the appellants sought to use a disused Presbyterian church as a Muslim mosque. Mason P also said (at 504): ‘Planning law ‘is concerned with the use of land — not with the identity of the user’: per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. This means that it is no part of the court’s function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continues. Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area. … Cripps J’s statement that planning law is concerned with the use of land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity. In the present context, attention is directed away from ‘church’ as a body of believers to ‘church’ as a building where particular types of activity take place.’ 69 In applying what was said by Mason P in House of Peace, I am not to be concerned only with the identity or identities of the

user or users of the proposed facility. The consent, if granted, would afford any religious group or denomination the use of the facility. It would not be limited or restricted to use only by the present applicant. Accordingly, the focus must be on the physical building that is proposed and on the environmental impact and amenity impact that the building and its use will have. And I repeat, in accordance with the views of McHugh JA, set out above, in the interests of preserving religious equality and the freedom to exercise religious beliefs the Court should be slow to prevent the use of the premises by persons who wish to practice their religion at the place where they wish to do so. 70 Finally, lest there be any conjecture I disclose for the record my personal affiliation. I am a practising Christian, an active member and occasional lay preacher in my local church, and a member of the Synod of the Anglican Diocese of Sydney.” Conclusions The conclusions which may be derived by New Century Developments are as follows: • Community antagonism to a proposed development may amount to a detrimental social impact. • Community fears or concerns are required to be considered, but should not be blindly accepted. Rather, those concerns require support in objectively assessing evidence before a finding can be made of adverse effect. A concern or fear without rational or justified foundation cannot constitute a social impact. • Unless there is an objective, specific, concrete and observable likely consequence of a proposed development, concerns by residents will be accorded little, if any, weight. • Given the importance of freedom of religion to a free society, the courts and consent authorities should be reluctant to prevent the use of premises by persons wishing to practise their religious beliefs

¶49-260 The public interest Section 79C(1)(e) of the EPA Act provides that, in determining a DA, the consent authority is required to consider the “public interest” to the extent that it is relevant to the DA.

¶49-270 Shoalhaven City Council v Lovell In Shoalhaven City Council v Lovell (1996) 136 FLR 58 (Lovell), Mahoney P (with whom Gleeson CJ agreed and Sheller JA substantially agreed) held at p 63 that the ambit of the term “public interest” is wide. He then held at p 63: “The term ‘public interest’ is not defined in the legislation. The matters comprehended by it are in my opinion of a wide ambit. In O’Sullivan v Farrer (1989) 168 CLR 210 at 216, Mason CJ, Brennan, Dawson and Gaudron JJ said: ‘Indeed, the expression in ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitively extraneous to any objects the legislature could have had in view’: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J.’ In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339, Kirby P referred to the significance of ‘public interest’ in the context of environmental planning legislation.”

¶49-280 Previous unlawfulness The issue of the relevance of past breaches of the planning law in the determination of a DA needs to be considered in light of the fact that development consents are impersonal and run with the land (see Chapter ¶55 on development consents). Moreover, unlike other

approvals (such as an environment protection licence), there is no requirement for an applicant to be a “fit and proper person”. The courts have consistently held that past unlawfulness is not relevant in the determination of a DA (Kouflidis v Sainsbury City Corp (1982) 29 SASR 321 at p 323–324; 49 LGRA 17 at p 19–20 (Kouflidis); Ireland v Cessnock City Council (1999) 110 LGERA 311 (Ireland v Cessnock) at paragraph [38]; Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 (Jonah) at paragraphs [19]–[34]). As Preston CJ held in Jonah at paragraphs [35] and [37]: “35 Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. … 37 The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however, that past use — without any consideration of its unlawfulness — cannot ever be relevant.”

¶49-290 Principles regarding the consideration and determination of a development application Principle 1: In determining a DA, the consent authority is required to take into consideration those matters listed in s 79C(1) of the EPA Act, as are relevant to the DA under consideration (s 79C(1) of EPA Act). Principle 2: The heads of consideration in s 79C are not a less comprehensive range of matters required to be considered than its predecessor s 90 (Carstens v Pittwater Council [1999] NSWLEC 249 (Carstens), Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401). Principle 3: In determining a DA, the consent authority should apply the relevant law and facts as existing at the date of the final

determination and not the date of lodgment (Sofi v Wollondilly). Principle 4: In establishing whether a consideration is relevant under s 79C, there are two questions: (1) Is the consideration one which is capable of being relevant in a proper factual context, and (2) In the particular circumstances of the matter in question, are they in fact relevant. (Lovell, Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 (Hoxton Park Residents Action Group)) These questions are to be addressed jointly, rather than separately (Wilson on behalf of Gurrunyar Environment Group v Bourke Shire Council [2001] NSWLEC 28). Principle 5: In identifying what is a relevant contribution under s 79C(1): • A likely impact of a development, under s 79C(1)(b), is one flowing from the development (the subject of the DA). However, if that impact is too remote, it may be excluded from consideration. • An alternative approach is that the obligation on the consent authority to consider a matter implies an obligation to consider whether a particular factor does or does not qualify for consideration. • A likely effect is one which has a real chance or possibility, not one which is more probable than not. • External impacts to the land (the subject of a DA) are relevant to the consideration of a DA. • Impacts may be direct or indirect and include matters which are reasonably the consequence of the development. • The fact that an impact of a development may require assessment and consideration by other processes or under other legislation

does not relieve a decision-maker of an obligation to consider matters which may be equally relevant to other determinations. (Hoxton Park Residents Action Group) Principle 6: The heads of consideration in s 79C(1) are not exhaustive. While a consent authority is required to consider all of the listed matters as are relevant, it may take into consideration other matters not included in s 79C(1) provided they relate to the objects of the EPA Act (Carstens). Principle 7: There is no general onus on the applicant to prove that a DA should be approved. The following propositions appear likely to apply: • An applicant needs to provide sufficient information for the consent authority to make an informed decision. The absence of sufficient information can constitute a basis for refusal of a DA. • Once sufficient information has been provided, there is neither an onus on the applicant to prove why development should be allowed nor an onus on objectors to prove why development should not be allowed. • There is no general presumption of allowing development which is permissible, but the zoning exercises an influence either neutral or positively favouring the approval of permissible development (St Ives Bus Services v Ku-ring-gai, BGP Properties). • The task of the consent authority is to take into consideration all of the relevant matters. However, the weight or priority accorded to those relevant matters is a matter for the merit judgment of the consent authority, provided that judgment is exercised reasonably and in accordance with the general principles of administrative law (Carstens, Terrace Tower Holdings, Irving v Goulburn Mulwaree Council [2008] NSWLEC 144). • These general propositions need to be tempered by the discussion on the application of the precautionary principle, suggesting that a

cautious approach should be adopted in evaluating various factors, conclusions being evidence-based, and where inferences or extrapolations are required, they need to be informed by sensitivity analysis. Principle 8: Consideration of the heads of consideration in s 79C is a fundamental precondition to the validity of a development consent, and a failure to do so will vitiate a development consent. Establishing a failure to comply with s 79C, is a lower threshold test than is required to establish Wednesbury unreasonableness, but unreasonableness of a decision is an indicator that a consent authority failed to take into account the heads of consideration in s 79C (Parramatta City Council v Hale (1982) 47 LGRA 319 (Parramatta v Hale)). Principle 9: There is a strong likelihood of a failure to comply with s 79C and hence, invalidity of any subsequent development consent if the following can be established: • There was an absence of a reasonable opportunity for the consent authority to understand the significance of a decision in relation to a DA. • The decision of the consent authority in material respects leaves important aspects virtually at large or unresolved. (Parramatta v Hale) Principle 10: Where a consent authority does not consider a significant component of a development, but defers that consideration until after the grant of the consent, there is a breach of s 79C and, in addition, the consent may be void for an absence of finality and certainty (King v Great Lakes Shire Council (1986) 58 LGRA 366, Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd (1989) 70 LGRA 79, Weal v Bathurst City Council [2000] NSWCA 88 (Weal)). Principle 11: To perform its obligation under s 79C, a consent authority needs to inform itself sufficiently. Taking a matter into consideration requires more than simply adverting to the matter. It

requires: • an understanding of the matters and their significance, and • a process of evaluation, such as to demonstrate that the matters were considered (Weal). This test is to be preferred to the more expansive test of a proper, genuine and realistic consideration (Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171). An unresolved conflict between key experts regarding a matter of significance to the determination indicates a consent authority may have failed to fulfil its duty under s 79C (Weal). Principle 12: A decision of a consent authority made without any attempt to obtain information that is both readily available and central to the decision to be taken is a basis for finding a breach of s 79C. However, a consent authority is not compelled to commission new advice, but there may be circumstances when there is a compelling need for further enquiries, which if not undertaken will result in a breach of s 79C (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74). Principle 13: A consent authority is required to take into consideration (in determining a DA) the provisions of any proposed EPI that is, or has been, the subject of public consultation, and has been notified to the consent authority (s 79C(1)(a)(ii) of EPA Act). Principle 14: In determining a DA while a draft EPI is under consideration, the consent authority should, as far as practicable, make decisions consistent with the draft EPI (Coty). Principle 15: Significant weight should be given in determining a DA to the provisions of a draft EPI, if the making of the draft EPI is perceived as being certain as to its contents and imminent as to the timing for its making. Likewise, where the making of a draft EPI is not certain or imminent, it should be given little weight. However, the weight given by a consent authority is not a question of law (see Terrace Tower Holdings). Where the making of a draft EPI is

considered to be certain and imminent, in considering a DA and giving the draft EPI significant weight, the consent authority should look beyond a prohibition to consider the aims and objectives of the draft EPI, and the extent to which the DA is consistent with those aims and objectives (Blackmore Design Group). Principle 16: A consent authority is required to take into consideration in determining a DA the provisions of any DCP (s 79C(1)(a)(iii) of EPA Act). To meet this requirement, a consent authority is required to give proper, genuine and realistic consideration to the provisions of the DCP. In doing so, the consent authority has to consider the DCP as a fundamental element in, or a focal point of, its decision-making process. A provision of a DCP directly relevant to a DA should be given significant, but not determinative, weight (Zhang). Where a consent authority puts aside a standard in a DCP and substitutes its own standard of what is reasonable as a general policy, this is a failure to consider the DCP (Botany Bay C.C. v Premier Customs). Principle 17: A DCP must be consistent with an LEP, but it may operate to confine the intensity of development otherwise permitted by an LEP. A DCP adopted after public consultation will attract significantly more weight than one adopted with little or no community consultation. A DCP which has been consistently applied by a council will be given significantly greater weight than one only selectively applied. A DCP which is outdated, or results in an inappropriate planning outcome that conflicts with other policies, will be given less weight than a DCP which results in a sensible planning outcome consistent with other policies. Consistency in decision-making through the making of decisions consistent with a DCP is an important objective. (Stockland v Manly) Principle 18: Councils may adopt other policy documents (other than DCPs). The weight to be given to those other policy documents is

dependent upon the following factors: • the extent, if any, of research and public consultation undertaken when creating the policy • the time during which the policy has been in force, and the extent of any review of its effectiveness • the extent to which the policy has been departed from in prior decisions • the compatibility of the policy with the objectives and provisions of relevant EPIs and DCPs • the compatibility of the policy with other policies adopted by a council or by any other relevant government agency, and • whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. (Stockland v Manly) Principle 19: Using the principles of ESD to evaluate a DA is not precluded by s 79C as ESD relates to an object of the EPA Act. Included within ESD is the precautionary principle. Further, a consent authority is obliged, in determining a DA, to have regard to the principles of ESD based on the public interest head of consideration in s 79C. (BGP Properties) Principle 20: In determining a DA, the precautionary principle is applied as follows: • The application of the precautionary principle is triggered by two cumulative threshold tests or conditions precedent: (1) threat of serious or irreversible environmental damage, and (2) scientific uncertainty as to the environmental damage.

• Only when the threshold tests or conditions precedent are satisfied will the precautionary principle be applicable. At that point, there is a shifting in the burden of proof where the proponent must demonstrate the threat of serious or irreversible environmental damage is negligible. The purpose of this shift of the burden of proof is to err on the side of caution and avoid environmental harm. • The shifting of the burden of proof only relates to the question of environmental damage, and not other evaluation criteria. Hence, it means that in weighing up the competing factors, the decisionmaker should assume that there will be serious or irreversible environmental damage (unless disproved by the proponent). But the decision-maker may still approve the project in balancing the competing factors. Hence, the application of the precautionary principle does not require refusal of a DA, nor to give the assumed fact of serious and irreversible environmental damage greater weight in consideration than other factors. • The type of precautionary measures applied depends upon the combined degree of seriousness and irreversibility of the threat or degree of uncertainty. • Additionally, any precautionary measures adapted should be proportionate to the potential threats. (Telstra) Principle 21: A consent authority is required to take into consideration in determining a DA the likely impacts of that development, including the social and economic impacts in the locality (s 79C(1)(b) of EPA Act). Principle 22: The previous view (propounded in KFC v Gantidis), that the mere threat of economic competition to existing business is not a relevant planning consideration (unless there is a prospect of a resulting overall adverse effect on the extent and adequacy of facilities available to the local community if the development (the subject of a DA) went ahead), does not set the legal limits for the consideration of

economic impacts. There is no basis for suggesting that the only economic impacts which may be considered are those which can be described as environmental or planning matters. The identification of the locality in which social and economic impacts are considered is solely a question of fact. The extent of s 79C(1)(b) appears to be expanding and evolving (Randall). UK decisions suggest that financial viability and off-site benefits may be a relevant consideration, provided it relates to the development in question (Sainsbury).

Principle 23: Community fears or concerns lacking a rational or justified foundation do not constitute a social impact under s 79C(1)(b) of the EPA Act (Newton v Wyong, Telstra). Principle 24: Community antagonism to a proposed development may amount to a detrimental social impact. Community fears or concerns are required to be considered, but should not be blindly accepted. Rather, those concerns require support in objectively assessing evidence before a finding can be made of adverse effect. A concern or fear without rational or justified foundation cannot constitute a social impact. Unless there is an objective, specific, concrete and observable likely consequence of a proposed development, concerns by residents will be accorded little, if any, weight. Given the importance of freedom of religion to a free society, the courts and consent authorities should be reluctant to prevent the use of premises by persons wishing to practise their religious beliefs (New Century Developments). Principle 25: A consent authority is required to take into consideration the public interest in determining a DA (s 79C(1)(e) of EPA Act). The term “public interest” has a wide meaning and is only confined by the subject matter, scope and purpose of the EPA Act (Lovell). Principle 26: In determining a DA, it is irrelevant to consider whether the present owner has in the past used the land unlawfully (Kouflidis, Ireland v Cessnock, Jonah).

AVAILABILITY OF MANDAMUS IN THE DETERMINATION OF A DEVELOPMENT APPLICATION ¶50-010 Imposition of a duty on a consent authority Section 80(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides: “A consent authority is to determine a development application

by: (a) granting consent to the application either unconditionally or subject to conditions, or (b) refusing consent to the application.” The question arises as to whether this imposes a duty on the consent authority to process and determine a development application (DA), a duty which may be enforced by the courts by way of an order that a consent authority process and determine a DA similar to an order for mandamus. The Land and Environment Court of NSW (NSWLEC) has generally maintained that it has the power to order a consent authority to grant such an order. Thus, in John Alexander Graham v Hornsby Shire Council [1988] NSWLEC 28 (Graham v Hornsby), Pearlman CJ held at p 3: “The remedy of mandamus is a discretionary remedy. Its purpose is to compel a public authority charged with the performance of a public duty to discharge that duty (The King v The Mayor, Alderman and Councillors of Stepney (1902) 1 KB 317 at 321) and it is an appropriate remedy in circumstances where a council fails to determine the application before it (cf City of Marion v Lady Becker and Ors (No 2) (1973) 30 LGRA 288 at 322; Lee v Sydney City Council (1983) 50 LGRA 382 at 3860.” Further, Cripps J in Lee v Sydney City Council (1983) 50 LGRA 382 (Lee v Sydney C.C.) at p 386 said: “There is a discretion in the court to refuse to grant the remedy of mandamus or to refuse an application in the nature of mandamus where the legislation has provided a remedy which is appropriate and adequate: Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 984. However in that case, the court, when dealing with provisions relating to rights of appeal under planning legislation, said: ‘No doubt it would not be right to treat the provisions creating them as excluding as a matter of legislative intention an

application for mandamus where there has been a clear failure on the part of the council to perform a public duty imposed upon it.’ Although the resolution of the council is somewhat ambiguous, I interpret it as meaning that the council considered the matter at a meeting and concluded that because the stated purpose for which the premises were to be used was illegal, it would not consider other matters referred to in s 90. But if the assumption is made the council had an obligation to consider matters under s 90, it failed to do so. The fact that there is a right of appeal against a refusal or a deemed refusal does not, in my opinion, of itself disentitle an applicant to an order such as here sought. However, because I have concluded that the council was entitled to take the view that it was not bound to consider the application, the question does not arise.” However, in contrast, Wood J in Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675 at p 683 said: “As a matter of interpretation of the Act, I conclude that there was no duty imposed on the Council to process and determine the development application within any particular time.” As noted in the discussion on Crown DAs in Chapter ¶43, mandamus was granted against Baulkham Hills Shire Council in Baulkham Hills Shire Council v Land Commission of NSW (1985) 55 LGRA 337 (Baulkham Hills S.C. v Land Commission). There appears to be a requirement for a consent authority to determine a DA under s 80(1) of the EPA Act and no clear legislative intention to exclude an application for mandamus. However, such a remedy is discretionary. Moreover, generally given the availability of a right of merit appeal in cases of deemed refusal where the consent authority has not made a determination, a reluctance of a consent authority to determine a DA does not suggest an approval is likely to be forthcoming. In those circumstances, an applicant’s better option may lie in exercising the right of merit appeal rather than pursuing an application similar to

mandamus.

¶50-020 Principle regarding the availability of mandamus against a consent authority Principle 1: It appears that a remedy order may be granted against a consent authority requiring it to process and determine a DA similar to an order for mandamus, although the granting of such an order is dependent upon discretionary considerations by a court (Graham v Hornsby, Lee v Sydney C.C., Baulkham Hills S.C. v Land Commission).

UNITED KINGDOM LAW RELATING TO CONSIDERATION OF APPLICATIONS FOR PLANNING INSTRUCTIONS ¶51-010 United Kingdom versus New South Wales planning law Planning law in the United Kingdom (UK) adopts a different approach to that embodied in s 79C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Section 70(2) of the Town and Country Planning Act 1990 (UK) provides as follows: “70(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.” The UK approach to require an authority to have regard to “material considerations” was first introduced into UK planning law by the Town and Country Planning Act 1947 (UK).1 Footnotes 1

See the discussion on material considerations in Moore, V,

1995, A Practical Approach to Planning Law, 5th edition, Blackstone Press Ltd, London, p 178–197.

¶51-020 Clyde & Co v Secretary of State for the Environment In Clyde & Co v Secretary of State for the Environment [1977] 3 All ER 1123, in the UK’s Court of Appeal Sir David Cairns (with whom Shaw LJ and Stephenson LJ agreed) held at p 1126–1127 (footnotes excluded): “Clearly the ‘material considerations’ which the Secretary of State has to have regard to must be considerations material to the application. It is common ground that they must be planning considerations. [p 1127] … In Stringer v Minister of Housing and Local Government, Cooke J upheld a decision to refuse planning permission for a building which interfered with the working of the Jodrell Bank telescope. He said: ‘It may be conceded at once that the material considerations to which the Minister is entitled and bound to have regard in deciding the appeal must be considerations of a planning nature. I find it impossible, however, to accept the view that such considerations are limited to matters relating to amenity. So far as I am aware, there is no authority for such a proposition, and it seems to me to be wrong in principle. In principle, it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances.’ ”

The context of “material considerations” is well explained by Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 at p 657 as follows: “The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.” Further, Lord Keith of Kinkel (with whom the other members of the House of Lords agreed) said at p 642 as follows: “Sir Thomas Bingham MR, in the course of his judgment in this case, said that ‘material’ in sub-s(2) meant ‘relevant’, and in my opinion he was correct in this. It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision-maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision-maker to attribute to the relevant considerations such weight as he think fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury

sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223).”

¶51-030 Approach of United Kingdom law to proper consideration of an application The approach of the UK law to the proper consideration of an application involves two aspects: (1) The consideration needs to be a material one, meaning that it is relevant to the application. (2) The consideration must of a type which can properly be described as a planning consideration, bringing into play what is within the ambit and scope of planning legislation.

¶51-040 Approach of New South Wales in the proper consideration of an application In New South Wales, s 79C of the EPA Act requires (in the proper consideration of an application) two aspects: (1) The consideration needs to be one which is relevant to the proposed development. (2) The consideration needs to fall within the enumerated heads of consideration in s 79C(1). Thus, the New South Wales approach avoids any broader judicial role in determining as part of the assessment of a development application what is or is not a planning consideration. But s 79C(1), in its preamble (or chapeau), requires consideration of whether a matter is relevant to the proposed development. Other than the consideration of this aspect in Shoalhaven City Council v Lovell (1996) 136 FLR 58, the question of relevance of a consideration has received little attention in judicial consideration of s 79C.

GENERAL PRINCIPLES OF ADMINISTRATIVE

LAW REGARDING THE MAKING OF DECISIONS ¶52-010 Key grounds for judicial review of administrative decisions In determining a development application (DA) a consent authority is required, in addition to complying with the general duty imposed by s 79C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the specific matters of consideration enumerated in s 79C, to comply with the general principles of administrative law regarding the making of administrative decisions and to make a determination complying with the EPA Act. It is not proposed that we canvass here the general principles of administrative law applicable to the determination of a DA as well as other administrative decisions, other than to identify the key principles and refer to instances where they have featured prominently in relation to the determination of DAs. The issue of making a determination that complies with the EPA Act will be considered in Chapters ¶54–¶58 relating to development consents. The key general grounds for judicial review of administrative decisions fall into the following areas: (1) Absence of power (ultra vires or jurisdictional error): In these circumstances, the decision-maker lacked the legal power to make the decision (such as the determining body was not the consent authority for the DA in question, or the development was prohibited, or the development did not require consent, or there was a failure to meet a precondition to the exercise of power). (2) Absence of proper consideration: In these circumstances, the decision-maker either failed to take into consideration a required matter or, alternatively, took into consideration an irrelevant consideration not permitted to be considered. (3) Bias, prejudice or corruption: In these circumstances the

decision-maker is: • Biased, being a decision-maker that a fair-minded observer might entertain a reasonable apprehension that the decisionmaker might not bring an impartial and unprejudiced mind to the matter under consideration. This could be due to conflicts of interest or conduct. • Prejudiced, being a decision-maker that is unable to exercise properly the discretion to make the decision in question, due to pre-determination or a fetter on the discretion. • Corrupted, as in the decision-maker exercises the discretion for an improper purpose. (4) Absence of procedural fairness (previously referred to as “natural justice”): In these circumstances, the decision-maker failed to afford a hearing to a person entitled to one. (5) Absence of reasonableness: This is where the decision was manifestly unreasonable in the Wednesbury sense, or failed to meet the standard of reasonableness in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS). Most of the grounds for judicial review of administrative decisions relate to the process by which the decision is made, rather than the decision itself. This reflects the principles outlined by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 50; (1986) 162 CLR 24 (Peko-Wallsend), where Mason J held at paragraph [15] as follows: “The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228).”

Similarly Mason CJ held in Attorney-General (NSW) v Quin [1990] HLA 21; (1990) 170 CLR 1 at p 17: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it, but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.” These cautionary warnings about the proper role of the courts in judicial review of administrative decisions need to be borne in mind. The exception to this relates to Wednesbury unreasonableness, where the decision itself is manifestly unreasonable, perverse or irrational, such that no responsible decision-maker could have made such a decision. This ground is limited but one which is evolving in the light of the High Court decision in SZMDS.

¶52-020 Absence of power Relevant cases dealing with challenges to development consents issued where there was an absence to do so have been considered previously under the relevant grounds for lack of power, be that the development does not require consent, is prohibited, or the body in question is not the consent authority, or the consent authority failed to meet a precondition to the exercise of the power to determine a DA. Additionally, an absence of power to determine a DA may arise where the decision is purportedly taken under delegation and either the delegation does not exist or its terms have not been complied with. A consent authority has the power to delegate the determination of a DA to certain persons. This applies not only to a council under s 377 and s 378 of the Local Government Act 1993 (NSW) but also the Minister (see s 23 of EPA Act). Where a DA is purportedly determined by a delegate, such a determination is invalid for lack of power in the

decision-maker if the delegation did not apply or the terms of the delegation were exceeded. Lyons v Sutherland Shire Council In Lyons v Sutherland Shire Council [2001] NSWCA 430 (Lyons v Sutherland) in the NSW Court of Appeal, Stein JA (with Ipp JA and Rolfe AJA agreeing) held in relation to a delegation by Council to one of its officers to determine DAs other than ones inter alia which, upon public notification, brings forward “relevant and well founded objections which cannot be reasonably satisfied by conditions of consent or where the objection relates to a matter or matters that were reasonable grounds for refusal” at paragraphs [24]–[27] and [34]–[36] as follows: “24 The situation is plain. Either the officer had a delegation to grant the approval or he did not. If he acted in excess of the delegation and outside it, he had no power to grant the approval. 25 The delegate is given power to determine development applications but this power is very specifically circumscribed as not to include the applications, among others, which come within paragraph (iv) of the instrument. 26 Where an application has to be notified, such as this, and brings forth relevant (admitted) and well founded objections, and such objections cannot be reasonably satisfied by imposition of a condition or the objection relates to a matter that is a reasonable ground of refusal, the delegation does not run. 27 It is obvious, bearing in mind the content of the objections in the case, that they cannot be satisfied by conditions of consent. So much is more or less conceded by the Council. … 34 There is no doubt in my mind that the objections which public notification brought forward were relevant and well founded objections. The only remaining issue is whether they (the objections) constitute reasonable grounds for refusal. 35 Again, I am in no doubt that the contents of the objections as

to the loss of significant views and the adverse impact on the heritage values of the Lyons house, could constitute reasonable and proper grounds for refusal. That is not to say that a Council, properly conscious of its planning duties and functions, would necessarily reject the application on the grounds appearing in the objections. But that is not what the clause requires. It is sufficient if the objections relate to matters which could constitute reasonable grounds for refusal. That the application complied with Council’s numerical planning requirements and controls is no reason to conclude that the objections were not well founded or did not provide reasonable grounds for refusal. 36 It follows that the application before the delegate was outside his power to determine. His determination, which became the decision of the Council, was made in excess of his power and jurisdiction. It cannot be allowed to stand and must be declared to be invalid. Accordingly the court has made the declaration. In these circumstances, it is seen to be unnecessary to consider the appellant’s alternative submissions. …” Examples where a consent was held void for absence of delegated authority are Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86 (Wyong S.C. v MCC Energy) at paragraph [54] and Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 (Belmorgan) at paragraphs [53]–[64].

¶52-030 Absence of proper consideration This section relates partly to the discussion on s 79C considered earlier, insofar as the need to take into consideration a relevant consideration. So far as irrelevant considerations are concerned, the following subsections relate to considerations held to be irrelevant in the determination of a DA. Identity of the applicant The identity of the applicant, and whether the applicant is of good character or otherwise, is an irrelevant consideration.

House of Peace v Bankstown City Council In an appeal related to a DA to use a disused Presbyterian church as a Muslim mosque, Mason P (with Stein JA and Giles JA agreeing) in House of Peace v Bankstown City Council [2000] NSWCA 44 (House of Peace v Bankstown C.C.) held at paragraphs [22] and [24]; (2000) 4 NSWLR 498 at p 504: “Planning Law ‘is concerned with the use of land — not with the identity of the user’: per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. This means that it is no part of the court’s function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continue [sic.] Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area. … Cripps J’s statement that planning law is concerned with the use of land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity. In the present context, attention is directed away from ‘church’ as a body of believers to ‘church’ as a building where particular types of activity take place.”1 Part planning law breaches and Ireland v Cessnock City Council Previous breaches of the planning law are not a relevant planning consideration. In Ireland v Cessnock City Council (1999) 103 LGERA 285 (Ireland v Cessnock C.C.), Bignold J held at paragraphs [86]–[87] and [89]–[90]: “86 … A significantly different judicial approach to the impact of past planning law breaches is reflected in the judgment of King CJ in the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321; 49 LGRA 17 in the following passages (at 323–324; 19–20): ‘In my opinion, moreover, the past unlawful use is not a

relevant factor in determining whether consent should be granted. That decision should be made upon the planning considerations envisaged by the Act and regulations irrespective of the past or continuing conduct of the applicant. I do not think that there is any warrant in the Act or Regulations for refusing or deferring an application or appeal by reason of the unlawful conduct of the applicant. The learned judge in the Land and Valuation Court was rightly concerned with the activities of a person who, cynically and fraudulently, changes the use of his or her land, and who hopes, by doing so, to present planning authorities with a fait accompli, and thus to extract a planning consent to the changed use. His Honour posed the question: How should such a person fare when his or her application comes to be considered at the administrative and judicial level? The answer, it seems to me, is that the unlawful use should be ignored. It does not enter into the planning considerations upon which the planning decision must be made. The punishment of the unlawful conduct should be left to criminal proceedings. The supposed fait accompli should not be recognised as such. The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use. Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past

conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions. Refusal to entertain an application while an unlawful use continues might result in a pointless impasse. A landowner who maintained, contrary to the planning authority’s view, that his use of the land did not require consent, but who was willing to seek consent to avoid conflict, would be unable to obtain consent unless he first desisted from the disputed use, perhaps closed his business. If refusal to consider the application were confined to cases of cynical, fraudulent or manipulative conduct, the planning authority and the Planning Appeal Board would be required to inquire into and decide whether the conduct in a particular case answered that description. I do not think that a planning authority such as a council or an administrative appeals tribunal such as the board is equipped by its constitution or procedures to deal with allegations of improper motives. I think that the most expedient course, and that indicated by the Act and Regulations, is for the administrative authorities and the courts to deal with the planning application on its planning merits, ignoring any arguments based directly or indirectly upon unlawful use and leaving the punishment of the unlawful conduct to penal proceedings.’ 87 The approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing planning appeals, building appeals, demolition order appeals and building certificate appeals. This is aptly reflected in the contemporaneous decision of Cripps J (as he then was) Longa v Blacktown City Council (1985) 54 LGRA 422. … 89 Although Longa involved only an appeal pursuant to s 317B(5) of the Local Government Act 1919 (NSW), the council’s demolition order, in respect of a partly erected building that had been erected without the council’s required approval, Cripps J, in the following passage (at 426) adverted to the interplay of the

related laws (all of which fell within this Court’s comprehensive appellate jurisdiction). ‘It is clear that Mr Longa is required, in law, to obtain building approval for the balance of the uncompleted work. As I have said, he cannot obtain approval for work that has been completed but it is open to him to make an application pursuant to s 317A and to make a building application in respect of the uncompleted work. In these circumstances, I have considered whether these proceedings should be adjourned to await the outcome of applications Mr Longa may make to the council and/or any appeals he may undertake or whether the notice should be set aside at the present time. I have come to the conclusion that it is appropriate for me to set aside the notice. I have concluded on the evidence that the building has been properly built in accordance with plans and specifications. Its attachment to the house will not put anybody else at risk in the area. Furthermore, the setting aside of the notice in no way inhibits the council or this Court on appeal considering any applications made hereafter: Ellmoos v Sutherland Shire Council.’ 90 The present appeals before this Court invoke the comprehensive jurisdiction vested in this Court to deal concurrently with the applicants’ building certificate appeal and their development appeal in a co-ordinated and consistent manner of the applicants seeking first the issue of a building certificate in respect of the building and then the grant of development consent for the prospective use of that building. As I understand the applicants’ case, it is to the effect that unless the building certificate appeal results in the issue of the building certificate, the development appeal would not succeed. This is to recognise at the same time both (i) the indissoluble link between both appeals and (ii) the Court’s comprehensive jurisdiction to determine those appeals in a consistent and complete manner.” Footnotes

1

See also the discussion on this issue in the UK in Moore, V, 1995, A Practical Approach to Planning Law, Blackstone Press Ltd, London, p 190–192.

¶52-040 Bias, prejudice or corruption The basis for challenge of a determination of a DA includes the following specific grounds. Apprehension of bias The test of bias is whether a fair-minded properly informed lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision required to be made, in this case the determination of a DA. This test, as applied to a judicial officer or juror, was stated in the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at paragraphs [6]–[7] by Gleeson CJ, McHugh, Gummow and Hayne JJ. This same test applies to administrative decision-makers, such as the consent authority for a DA, as it does for judicial decision-makers, although its content may often be different (see the discussion of the authorities by Biscoe J in F&D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 (Bonaccorso) at paragraphs [110]–[135]). The ground of apprehended bias overlaps to a considerable extent with the ground of prejudice through pre-determination, or fetter on discretion and absence of bias is a requirement of procedural fairness. As the majority of the High Court held in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 (Michael Wilson), an allegation of apprehended bias requires two steps: (1) the identification of what is said might lead the judge to decide a case other than on its legal and factional merits, and (2) an articulation of the logical connection between the matter and the apprehended deviation from the course of determining the case on its merits.

In Michael Wilson, the High Court held that it was wrong to consider the reasons for judgment in determining whether there was a reasonable apprehension of bias, as this would assume the reasonable apprehension in the first place and also confuse a claim of apprehended bias with one of actual bias. McGovern v Ku-ring-gai Council The question of how the test for apprehended bias applies to a local council in exercising a function to determine a DA was considered by the NSW Court of Appeal in McGovern v Ku-ring-gai Council [2008] NSWCA 209 (McGovern). Basten JA (with whom Campbell JA agreed) approached the question on the basis that: “Absence of bias, including questions of partiality and prejudgment, whether actual or apparent, are part of the requirements of natural justice” (paragraph [71]). He noted the test for apprehended bias assumes a fair-minded observer (paragraph [73]). Basten JA (with whom Campbell JA agreed) noted that different standards in relation to apprehended bias would apply to a council. He held at paragraph [77]: “77 There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.” Basten JA also held at paragraph [100] that the authorities are consistent that where impropriety has been established, the courts will not inquire into its actual effect if any on the decision. Basten JA held that in determining whether the conduct of a member of Council demonstrated apprehended bias, it was necessary to examine the statutory scheme in relation to determining DAs. He noted three propositions at paragraphs [155]–[157]: (1) To establish pre-judgment it is necessary to identify the period of time during which a council member should maintain an open

mind and the statutory processes on how a decision is to be made. (2) It is noted that some decisions will have a higher policy content than others, and where policy content is higher it can be expected that councillors will form a firm view more in advance. (3) The fact that decision-making is by an elected body assumes that the body will not exercise its powers in relation to DAs with a blank mind. In McGovern, the Court was cautious and found no apprehended bias in circumstances of robust lobbying and interchange between an applicant, objectors and council members, where two council members indicated a prior view to the merits of a DA. Spigelman CJ raised what he considered to be a difference between pre-judgment cases and conflict of interest cases. Spigelman CJ held at paragraphs [25]–[28] as follows: “25 Many of the authorities upon which the appellants rely are not cases of pre-judgment. It is important, in my opinion, to distinguish a conflict of interest case from a pre-judgment case. There are two relevant differences. 26 A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of ‘closure’ of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course. 27 Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn.

28 Many of the authorities upon which the appellants relied employed the language of pre-judgment but are, on their facts, cases in which one of the decision-makers has, as a matter of substance, placed himself or herself in the position of conflict of interest, indeed becoming a party to the decision-making process. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not, in my opinion, one of ‘pre-judgment’ but one of ‘conflict of interest’.” Spigelman CJ held that in a conflict of interest case involving a multimember decision-making body like a council, where one or two members have a conflict of interest they are likely to infect the whole body with bias (this is the “rotten apple in the barrel test”). But in prejudgment cases, if one or two members have pre-judged the DA, they are less likely to infect the whole. The test is finally one of fact and degree. Spigelman CJ held at paragraphs [39]–[41] and [45] as follows: “39 All of these cases appear to me to involve a conflict of interest, rather than pre-judgment. The conduct of the particular member(s) of the multi-member decision-maker went well beyond a manifestation that s/he was or they were not open to persuasion. 40 In such cases, the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias of that character could well go beyond the usual process of internal debate. Accordingly, an independent observer could reasonably conclude that the entire collegiate body may not bring an impartial mind to the decision-making process. However, the pre-judgment situation is not necessarily, indeed not usually, of that character. 41 A person who has come to a firm opinion, albeit on a prejudgment basis, but not to the degree to become a party in substance, will often seek to convince others to adopt his or her view. However, that does not imply that s/he will do so by other than rational and relevant argument. Questions of fact and degree

are involved which make it difficult to apply a rotten apple test to a pre-judgment case, even on an apprehended bias basis. … 45 It is necessary to allow for special cases, for example, when a particular member of a collegial body has, or has had, particular influence on the other members. Except in such cases, a rotten apple test is not, in my opinion, the approach that an independent observer ‘might’ reasonably adopt in the usual pre-judgment case. Rather a ‘but for’ test should generally be applied, that is, the Court should ask whether or not the person(s) reasonably suspected of pre-judgment decided the outcome.” However, Basten JA in McGovern took a stronger stand that even though the presences of tainted council members was not decisive at the meeting, their mere presence if they were disqualified may have tainted the proceedings and rendered the decision invalid. Basten JA held at paragraphs [100]–[101] and [103] as follows: “100 These cases are consistent with the proposition that where impropriety has been established, the courts will not inquire into its actual effect, if any, on the decision. The point of distinction sought to be drawn is that in the present case the Council did not deliberate in the absence of the applicant and the objector and thus the opportunity for bias to work an effect unknown to the parties was not present. 101 In a sense, the point of distinction is real enough; on the other hand, it may give rise to fine points depending on the facts. For example, there may be a difference between the situation where a disqualified councillor attends the deliberations and votes (where other councillors may not know of the disqualifying consideration) and the situation where the councillor withdraws, thus putting other councillors on notice, so that prior comments may be discounted on the basis of partiality. To the extent that there may have been prior discussions with disqualified councillors, that might have occurred even if the councillors had withdrawn from both voting and attendance during the consideration of the relevant agenda item.

… 103 In the present case, the two councillors alleged to be partial were present at the deliberations and exercised their votes. Even though their votes were not decisive, their presence, if they were disqualified, may have tainted the proceedings and vitiated the decision.” However, Campbell JA did not decide the matter holding at paragraph [251] as follows: “251 When the present standing of Steuart v Oliver (No 2) has not been the subject of argument in this case, I would prefer to neither adopt, nor reject, a proposition that participation of a disqualified person in the decision of a collective body vitiates that decision.” Thus, McGovern does not establish whether the “one rotten apple in the barrel” test applies or the determinative “but for” test applies in relation to multi-member bodies where one or two members are found to have an apprehension of bias or a pre-judgment of the question, or whether there are different tests for apprehension of bias and prejudgment.

¶52-050 Prejudice, being pre-determination or a fetter on discretion Pre-determination The test for pre-determination of a DA is whether the decision-maker is open to persuasion or whether the conclusion already formed is incapable of alteration whatever evidence or arguments may be presented (see McGovern at paragraphs [14]–[24] per Spigelman CJ). McGovern v Ku-ring-gai Council Further to the discussion on McGovern in ¶52-040, Spigelman CJ noted that Australian authorities on pre-determination or pre-judgment are the same as in Canada (paragraph [20]) and then he cited the Canadian decision of Old St. Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 and the following statement by

Sopinka J on behalf of the majority at p 1196: “I would distinguish between the case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest … Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest.” Hence, the test for pre-determination is that the decision-maker is not open to persuasion, rather than whether the decision-maker has formed a view as to the decision. Fetter on discretion A consent authority may not fetter or restrict its capacity to exercise its discretion in determining a DA and, where the authority to determine a DA is delegated, the delegation must not fetter the discretion of the delegate. Bruce Kerr Pty Ltd v Gosford City Council The principles in relation to fetter on discretion are set out by Cohen J in the Supreme Court of NSW (Equity Division) in Bruce Kerr Pty Ltd v Gosford City Council (1994) 83 LGERA 295 (Bruce Kerr v Gosford C.C.). In this case, the Council had entered into a deed of agreement in relation to the rezoning and subdivision of land. The deed provided as follows: “Council acknowledges that in the event of subdivision proceedings by way of various stages that such dedication shall be accepted by the Council as the total contribution for parks,

gardens and recreation area and/or public reserves in respect of the subdivision or subdivisions of all of the land aforesaid. The Council further acknowledges that no further lands or monetary contribution for any reason whatsoever shall be required hereafter by the Council on any application for a subdivision of all or any part of the aforesaid lands.” Subsequently, despite the deed, Council levied the plaintiff for water and sewerage charges under the Water Supply Authorities Act 1987 (NSW) which had been enacted subsequent to the signing of the deed. Cohen J held that the deed did not act as a fetter on Council’s power to issue the levy. He held at p 301–302 as follows: “The question of whether a public authority can by contract fetter its powers to exercise statutory duties has been considered in a number of cases. The principles were discussed in the judgment of the High Court in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54. Although there were dissenting views as to the final result in that case there was no disagreement as to the principles relating to the right of a government or other public authority to restrict its future acts by contract. Mason J at 74 referred to there being a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings. Reference was made to Ayr Harbour Trustees v Oswald (1883) 8 AC 623. Further on that page his Honour said: ‘Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities and it would be detrimental to the public interest to deny to the government or a public authority power to enter into a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither [p 302]

the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future’. The judgment then looked at a number of cases relating to trustees and to local authorities dealing with planning matters where it had been held that the bodies concerned could not restrict their future exercise of a statutory power or discretion where the contract or undertaking was not authorised by the relevant legislation. The principle was set out at 77 in the following terms: ‘Where statutory approval for the making of the contract exists and the contract contains an undertaking that the statutory power will be exercised in a particular way, there is no room for the notion that the undertaking is invalid on the ground that it is an anticipatory fetter on the exercise of a statutory discretion. The contract assuming it to be within constitutional power, is valid and the undertaking is free from attack. There is in such a case the initial question: Does the statute which approves the making of the contract expressly or impliedly amend, for the purposes of the contract the preexisting law providing for the exercise of the discretion?’” In the context of the current consideration, the relevant issue is not whether the contract is or is not valid if the consent authority seeks to act contrary to the contract, but whether a development consent, granted by a consent authority which had fettered its discretion beforehand (whether by contract, or by general policy) and had acted in accordance with that fetter, is valid. Based upon the above principles and the analogous decision in Corkhill v Hope (1981) 74 LGRA 33 (Corkhill v Hope), the likely answer is that it would not be valid if it failed to consider an otherwise required consideration due to the fetter. Corkhill v Hope In Corkhill v Hope, Stein J in the Land and Environment Court of NSW

(NSWLEC) considered the lawfulness of a general policy of the Heritage Council not to recommend use of the Heritage Act 1977 (NSW) (Heritage Act) where government agencies were obliged to comply with other legislation which dealt with matters that may otherwise require action under the Heritage Act. Stein J held the policy fettered the discretion to consider an application for action under the Heritage Act and accordingly, the decision was unlawful. Stein J held at p 40 and p 44 as follows: “It is trite to state that a decision-maker cannot abrogate a discretion by the application of a universal policy which precludes a consideration of the merits of a particular application. The principle has been often stated: see, Singer v Statutory & Other Offices Remuneration Tribunal (1986) 5 NSWLR 646; Perder Investments v Lightowler (1990) 25 FCR 150 and Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169. A policy may not fetter the discretion conferred on the decisionmaker nor may it be inconsistent with the legislation: Tang v Minister for Immigration & Ethnic Affairs (1986) 67 ALR 177 at 189–190 and Rendell v Release on Licence Board (1987) 10 NSWLR 499. A policy, if it be a lawful policy, cannot exclude a consideration of the particular circumstances of a case: see, eg, Brenna J in Re drake and Minster for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640–641; Chumbrairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 and British Oxygen Co Ltd v Minister for Technology [1971] AC 610 at 624– 625. … The statement of principle by the Court of Appeal in Rendell (at 503–504) is appropriate to repeat: ‘… A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation. The decision maker must not, for the purpose of the exercise of discretion, take into account extraneous or irrelevant considerations. Nor must the discretion be exercised by reference to general and inflexible rules which

pay no regard to the particular circumstances of the case. This is so whether such rules are laid down by the decision maker or an external body. It is of course often useful and sometimes necessary for administrators to adopt guidelines. These may provide guidance to officers in the scattered agencies of the administration. They may ensure that decisions are made in an even-handed and consistent way. But such guidelines must be compatible with the legislation conferring the discretion. They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision if that is what the legislation has provided for, as we think the legislation in the present case has done. Most especially, the administrator must not permit the decisions of third persons or their actions, and attitudes, to control the way in which such discretion is exercised.’ It follows from my above discussion that the decision was not made according to law and the application should be referred back to the decision-maker to be dealt with according to the requirements of the Heritage Act.” The Queen v City of Whyalla In relation to the issue of apprehended bias, the question arises as to its application where the consent authority for a DA is also the applicant. This question was considered by the Full Court of the Supreme Court of South Australia in The Queen v City of Whyalla (1979) 44 LGRA 371 (The Queen v Whyalla) where the Council sought to establish a second funeral business by entering into a contract with a company who would establish the business if the Council bought the land from which the company would operate. The company then lodged a DA with the Council which approved it, and that approval was challenged on the grounds of alleged denial of natural justice. King CJ held at p 374–376: “I think that the Whyalla Corporation had a financial interest in the decision as to the use to which the premises could be put. It had taken an option to purchase the premises and was paying $160 per week as consideration for the option. The Council intended

that, if the consent to the change of use were granted, it would purchase the premises and lease them to F.W. Blackwell Pty Ltd. It is quite clear moreover from the history related above that members of Council held a strong view in favour of the establishment of a second funeral parlour in the town and desired the Wood Street project to proceed. The Council was, in the words which were used in its own letter to the State Planning Authority, the ‘instigator and developer’ of the project. Although the company was the applicant, this was in a real sense the Council’s ‘own cause’ and the common law rule is that no one may be judged in his own cause. There are, however, considerable difficulties about the application of the common law rule to the situation created by the Planning and Development Act, 1966. Section 36 of that Act authorizes the making of regulations to, inter alia, ‘prescribe the cases and circumstances in and under which … the [p 375] use of any land within the planning area shall not be changed from its existing use without the consent of the authority or the council.’ The council which is to be empowered by regulation to grant or withhold consent is the council constituted under the Local Government Act, 1934, to carry out the usual functions of local government and with powers conferred by that Act. It is evident that the discharge of those functions and the exercise of those powers might very well involve the Council in transactions which would give it a financial interest in a decision as to a change of use to which land might be put. Moreover many changes of use of land tend to alter the value of the land and improvements and have implications for the rate revenue of the council. It is a proper function of local government to foster and encourage the provision in the area of needed services and to encourage the use of land in the area in particular ways. Such initiatives must from time to time give the council an interest in the outcome of an application for consent to change of use of land. If the council must refrain from those activities in order to discharge its planning functions, the conferral of the planning powers on the

council has diminished considerably its capacity to discharge its primary functions as a local government body. I cannot think that Parliament intended by conferring planning powers on the council to diminish its capacity to discharge its local government functions. I have no doubt that the council, in considering applications of this kind, is required to act judicially in the broad sense of that expression and is bound by the common law rules of natural justice so far as they may be applicable to the situation created by the statutory provisions: The Queen v Medical Board of South Australia; Ex parte S. (1976) 14 S.A.S.R. 360; … I appreciate that it is not mandatory under s.36 of the Act for the council to be the consenting body. The regulations, consistently with s.36, could have made the consenting body the authority either alone or concurrently with the council. I think, however, that the legislative intention that the council should make planning decisions is so clear and the area of potential interest, financial and otherwise, of the council in those decisions so wide, that there must be implied a statutory exclusion of the common law rule that no one may be judged in his own cause, to the extent that the council’s interest arises out of the exercise of purported exercise of its local government functions. At the very least, in my opinion, the regulation-making power in s.36 should be construed as authorizing regulations which exclude the common law rule to that extent. [p 376] If I am wrong in thinking that there has been statutory exclusion of the common law rule or that the rule has been excluded by duly authorized regulations, I consider nevertheless that the validity of the decision of Council is saved by the principle of necessity. Although the regulations could have been framed differently, the fact is that, as the law stands, the Council was the only body empowered to adjudicate upon this application. If it was disqualified, there was a total and irremediable failure of justice and the company could not obtain an adjudication upon its application. The common law recognizes that in such a situation

an adjudicating authority must act out of necessity and to prevent a failure of justice: The Judges v Attorney-General for Saskatchewan (1937) 53 T.L.R. 464; Willing v Hollobone (No. 2) (1975) 34 L.G.R.A. 236. In the third edition (1973) of S.A. de Smith, Judicial Review of Administration Action the following passage appears (at p 244): ‘What would be the position in English administrative law if a Minister were to be called upon to decide whether or not to confirm an order made by a local authority affecting his own property? He could not lawfully transfer to another Minister his duty to decide. He might dispute one of his own officials to make the decision; the decision would nevertheless be made in the Minister’s name. It is submitted that the validity of the decision could not be challenged merely on the ground that the Minister was in a sense judge in his own cause; for the legal duty to decide the class of matter to which this belonged had been cast upon him, and upon him alone; cf. Auten v Ravner [1958] 1 W.L.R. 1300. If it were possible to show that the Minister had in fact failed to consider the merits of the order for reasons of personal interest, his decision could be successfully challenged.’ I agree with the learned author, and in my opinion the reasoning applies to this decision of the Council.” The Queen v Whyalla scenario is similar to a situation in New South Wales in which a consent authority is required to determine a DA in which it has an interest. As with The Queen v Whyalla situation, there is only one consent authority for a DA. If the DA is not determined by the consent authority with the interest, it cannot lawfully be determined. Both King CJ and White J found that the legislation in The Queen v Whyalla instance impliedly excluded principles of natural justice as it would not be possible for Council to exercise a number of its planning roles if the bias rule applied as it would nearly always have some interest in the decision.2 However, both the Chief Justice and White J also held that the rule of necessity would apply in such circumstances

if the legislation did not exclude the rules of natural justice. As noted in the quote from Judicial Review of Administrative Action, in the extract from the Chief Justice’s decision, the principle of necessity does not overcome all procedural defects in the determination of a DA by a biased consent authority, as a consent authority’s decision may still be successfully challenged if it has not given proper consideration to the application. The courts in New South Wales have considered a number of cases where the consent authority has determined a DA in which it has had an interest without invalidating the decision on that basis (see for example: Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335 (Noroton); Weal v Bathurst City Council [1999] NSWLEC 132 (Weal); Boulton v Burwood MC (1988) 66 LGERA 131). In Weal at first instance, Bignold J considered the issue of bias at paragraphs [169]–[173]: “F. WAS THE COUNCIL GUILTY OF PARTIALITY OR BIAS? 169. The Applicant’s allegation (as pleaded in par 28 of the Points of Claim) is that the Council, in determining the development application, was in a conflict situation between (i) its duty as the consent authority under the EPA Act and (ii) its interest as the owner of the development site. 170. However, the Applicant’s allegation is not supported by any evidence that that conflict remained unresolved or that it tainted the Council’s determination granting the development consent. 171. Indeed, the evidence is to the contrary. It is to be recalled that it was the Applicant’s Solicitor who had urged the Council to engage an independent consultant to assess the development application and that the Council, recognising the possibility of the perception of bias, decided to engage an independent planning consultant to assess the development application. 172. This having occurred, the evidence satisfies me that the conflict or potential conflict of interest on the Council’s part was entirely and satisfactorily resolved, and that the Council’s grant of the development consent was untainted by any such conflict.

173. The Applicant has wholly failed to establish his claim.”3 Where a consent authority is required to determine a DA in which there may be a conflict of interest due to the consent authority having an interest but is required by law to determine the application, the existence of the potential conflict of interest will not, by itself, invalidate any determination of the DA. However, it will be necessary for the consent authority to take steps to remove the conflict or reduce the effect of the interest on any decision made. The consent authority must ensure that it does not take its own interests into account when assessing a DA, which is likely to be an irrelevant consideration. Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc The leading case on this point is Noroton in which the NSW Court of Appeal was asked to consider whether the Council had taken into consideration its potential contractual liability to Noroton, a developer whom Council had agreed to sell certain land, when making the decision to refer the making of a Local Environmental Plan (LEP) to the Minister. Priestley JA stated, at p 351–352: “The Council was seeking to leave the decision whether the draft LEP should be made entirely to the Minister; it wished to show to Noroton and the opponents of the proposal alike that so far as the Department and Minister were concerned it was recognising its conflict of interest, expressing its view as a town planning body that the proposal should not go forward, but expressly refraining from making a decision whether or not an LEP should be made in the form of the draft. To have submitted the relevant documentation to the Secretary in accordance with s.68(4) could have been argued to be inconsistent with the stance it was trying to show. In accordance with the Council’s resolution the draft LEP and accompanying documentation were referred to the Department. The Director then reported to the Minister, purportedly pursuant to s.69. The report, dated 14 November 1994 recommended that the

Minister make the LEP under s.70(1)(a) and (8) of the EPA Act. The Minister approved the recommendation and in accordance with it purported to make the LEP on 23 November 1994. A development application lodged by Noroton in respect of its project was consented to by the Council on 1 November 1995. Pearlman J’s decision that the LEP and consequently the development consent were invalid was reached by the following steps: (1) the draft LEP was submitted to the Department pursuant to s.68(4) by the Council’s resolution; (2) this was an essential step in the procedure towards the Minister’s eventually making a valid LEP; (3) the resolution was influenced by the Council’s wish to avoid litigation; (4) this was an impermissible consideration invalidating the resolution; and (5) the Minister could therefore not make the LEP; and (6) there was then no basis for granting the development application. … I have already said that the materials before the court make it plain that the Council was concerned with the possibility of litigation against it no matter what decision it reached in considering whether to resolve to proceed with the draft LEP. The resolution which the Council adopted on 14 July 1994 itself shows that the Council recognised the situation of conflict in which it was placed in its differing roles as consent authority and as a party to the contract with Noroton. The resolution also shows that it was the Council’s view that, as a consent authority, it did not want to proceed with the draft LEP. The Council avoided making that decision because of its concern about threatened litigation. It seems to me that as a consent authority the Council was obliged to act upon the view it had formed that the proposed development was undesirable from a town planning point of view. It does not seem to me to have been relevant for the Council in reaching its decision on a town planning matter to take into account possible repercussions to it in its commercial aspect. In my view the Council did take such repercussions into account. That was one of the reasons why the Council attempted to sit on

the fence, instead of deciding whether or not it would submit, in accordance with s.68(4), the documentation listed in that subsection. I therefore agree with the trial judge’s opinion that in arriving at the resolution which it adopted the Council took into account an impermissible consideration which invalidated the resolution.” Noroton is illustrative of the difficulties faced by consent authorities when presented with situations in which they have an interest. Ideally, these type of interests should be avoided but, where they cannot, the consent authority must determine the issue before them, as required by law, without taking irrelevant matters into consideration. Essentially, if a matter would be irrelevant to the consent authority’s determination of a DA by an unrelated entity, it will also be irrelevant to the consideration of a DA in which the consent authority has an interest. Boulton v Burwood MC There are some limited circumstances in which a consent authority may take its interest in the development into consideration. The case of Boulton v Burwood MC (1988) 66 LGERA 131 illustrates one such example. In Boulton v Burwood MC, the Council considered its ownership of the land and development and subsequent ability to implement measures to reduce noise impacts originating from a child care facility when deciding not to impose conditions on noise. Hemmings J addressed this issue at p 138: “As I understand the applicants’ remaining submission, council erroneously took into account the fact that it also was the owner of the subject land and for that reason deferred consideration of relevant matters. Some alderman had a recollection that during debate it was suggested that council, as owner, had a continuing opportunity to monitor and therefore avoid or rectify unforeseen problems arising from the operation of the centre. It also discussed, but did not decide, that a committee of interested persons could be formed to monitor such use. In my opinion, council could hardly put out of its mind that it was the owner of the land, or that, if approval was granted, it was likely to be faced with

continued scrutiny and opposition to its activities. In my opinion council could properly take such matters into consideration. I am not satisfied that it has thereby taken into account an irrelevant matter or deferred consideration of relevant matters merely by discussing procedures to monitor the development.” Clifford v Wyong Shire Council In Clifford v Wyong Shire Council (1996) 89 LGERA 240 (Clifford v Wyong S.C.), Stein J in the NSWLEC heard a challenge to the validity of a development consent for the erection of a 134-unit strata holiday hotel on land owned by Council. The applicable Environmental Planning Instrument (EPI) specified height controls for the land of two and four storeys with a capacity for council to approve a building which exceeded the maximum height limit if the Council was satisfied as to a number of matters. The DA was for a 10-storey building. Stein J held the Council’s opinion as to its satisfaction was manifestly unreasonable in accordance with Wednesbury, Stein J concluded at p 252: “One last comment. This case, and others in the Court over the past 15 years, illustrates the difficulties for councils when they are both the applicant and decision-maker, especially with regard to significant projects. It is a matter which should be considered by the Minister for Local Government and the Minister for Urban Affairs and Planning with a view to law reform.” Hence, where a Council is both applicant and consent authority for a DA there are potential grounds to challenge any approval based upon: • apprehension of bias • pre-judgment • making a decision for an improper purpose • the taking into account of irrelevant considerations, namely the Council’s interest as landowner of developer, and • reasonableness grounds.

Each of these grounds may overlap, pointing to the fact that, not only do the grounds of challenge overlap each other, but that one factual circumstance may give rise to multiple grounds of potential invalidity. Independent Commission Against Corruption — discussion paper Following the 2001 Independent Commission Against Corruption (ICAC) investigation into allegations of corruption at Rockdale City Council, the ICAC produced several discussion papers in a series titled: “Taking The Devil Out Of Development”. The discussion paper — “Taking The Devil Out Of Development, Exploring Corruption Risks in the Administration of Development Applications by Local Councils” specifically addressed the situation where a council was both the developer and the consent authority. Issue 9 stated as follows: “Issue 9: What to do when council is both the developer and consent authority? Our concerns The Environmental Planning and Assessment Act 1979 is unusual in that it allows various bodies to determine their own development applications — councils are one of these bodies. In States such as South Australia, for instance, any application in which a council has an interest (whether as applicant or landowner or developer) is determined by a State Planning Commission or similar body. Because of the particular legislative situation in NSW, councils are under a special obligation to ensure that the assessment and determination of their own applications is an objective and transparent exercise. This obligation applies irrespective of whether an application is proposing a commercial development or a community facility. Some community facilities have a greater potential for significant adverse impacts than strictly commercial developments. If an application is for a commercial development then councils must be able to demonstrate to other developers or prospective commercial competitors that the same rules apply to all.

The same obligations apply to councils in respect to applications from third parties in which council has an interest and stands to benefit as a consequence of an approval (for instance, by gaining control over floorspace in a proposed development at no cost or at a subsidised rate). In these cases, councils must ensure that there is no perception that any undertaking to approve has been given. As with any application, the prescribed processes should not be pre-empted. Council should also be aware of the risks associated with entering into commercial arrangements which might imply development approval before the development application has been objectively assessed.4 Our view Councils must take every reasonable step to ensure that the conflicts of interest which are enshrined in legislation, that is councils preparing, assessing and determining their own applications for developments, are ameliorated to the greatest extent possible. The minimum requirements for achieving this outcome involve separating roles within the council. The senior officer responsible for managing a development project should not be the senior officer responsible for engaging an independent consultant or other independent party to assess the application and carry a recommendation to council. Councils should consider utilising independent parties to the greatest extent in the assessment and determination process. For example: • where appropriate, having regard to cost to council, public interest in the matter, value of the development and complexity of the project, council should engage a suitable independent expert to undertake the assessment. Councils should be mindful, however, that such arrangements can still create the perception that the assessment has been set up or influenced unless the process by which the expert is engaged is also distanced from the council or the party within council responsible for the development proposal. Otherwise, allegations may be made that the expert has been hand-

picked or otherwise unduly influenced. • council might ask another (neighbouring) council to undertake the assessment of the application for it. • the matter could be referred to an Independent Hearing and Advisory Panel established by a council (the Liverpool and Fairfield City Councils model) or by a group of councils (such as a regional organisation of councils). In addition councils should not enter into any contractual arrangements which purport to guarantee outcomes that are subject to a separate regulatory process”. The discussion paper sought comments from councils, councillors and other interested persons on their experiences with this situation. Although the ICAC produced a number of follow-up reports detailing the results of feedback from the discussion paper series, this particular issue was not addressed in these reports. Hence, there is no formal concluded view or recommendations by ICAC on this issue. Nonetheless, the discussion paper provides some valuable recommendations on how this situation should be addressed by consent authorities. Footnotes 2

For example, by increasing rate revenue by increasing the value of land through zoning changes.

3

The decision of Bignold J in Weal was overturned by the NSW Court of Appeal on appeal (see Weal v Bathurst City Council (2000) 111 LGERA 181). However, the issue of bias was not raised as an appellate point.

4

The case of Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1998) 98 LGERA 335 gives some guidance on this.

¶52-060 Improper purpose Such a challenge is based on the ground that a decision in relation to a DA was taken for a purpose not authorised by the EPA Act. These issues were considered in the discussion on the scope and power of an EPI in Chapter ¶3.

¶52-070 Absence of procedural fairness The applicability of the general administrative law principles on procedural fairness has been discussed earlier in relation to public exhibition and involvement in relation to DAs (see Chapter ¶47).

¶52-080 Absence of reasonableness This ground generally, unlike the other grounds, squarely addresses the merits of the decision itself rather than the processes by which the decision was taken. Until recently this ground has been described as Wednesbury unreasonableness, after the United Kingdom Court of Appeal decision of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 233. In this case, the Sunday Entertainments Act 1932 (UK) gave licensing authorities for picture houses the power to allow licensed premises to open on Sunday, subject to such conditions as the authority thought fit to impose. A picture house was approved to open on Sundays, subject to a condition that no children under 15 years of age could be admitted, irrespective of whether they were accompanied by an adult or not. The decision was challenged in the courts and the challenge was dismissed. Lord Greene MR (with whom Somerville LJ and Singleton J agreed) held at p 228–234: “What, then is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local

authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the court in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. [p 229] There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out.

Bad faith, dishonesty — those of course, stand by themselves — unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable’. … [p 233] In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarize once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take [p 234] into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs.” Lord Greene MR concluded that an administrative decision could not be challenged if it was within power and, within what he called, the four corners of the principles of discretion. But he observed that, even if a decision was properly made, “… it may be still possible to say that,

although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no responsible authority could ever have come to”. He then concluded that, in such a case, he considered the court can interfere with the decision by way of judicial review. From these small beginnings, the seed of Wednesbury unreasonableness developed into a giant tree. Save Our Street Incorporated v Settree In Save Our Street Incorporated v Settree [2006] NSWLEC 570, Biscoe J in the NSWLEC charted this growth at paragraphs [29]–[32] as follows: “29 The test of manifest (Wednesbury) unreasonableness has been stated in various ways. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock said that the test was whether the decision: ‘looked at objectively, [was] so devoid of any plausible justification that no reasonable body or persons could have reached [it]’. In Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410, Lord Diplock said that the decision must be ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. It has been said that ‘The test is stringent … The decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290)’: Weal v Bathurst City Council (2000) 111 LGERA 181 (NSWCA) at 188 [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 (NSWCA) at 312 [79]. In Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707 at 725 [91], Spigelman CJ (with whom Mason P agreed) said that the test was whether a decision ‘was so plainly incorrect as to satisfy the stringent requirements of the Wednesbury unreasonableness test’. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural

Resources (2005) 138 LGERA 11 at 45 [129], Spigelman CJ (with whom Beazley and Tobias JJA agreed) said: ‘Perhaps the most appropriate formulation is whether the decision is ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [52] and [37], [173]; see also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38]’. The formulation in Murrumbidgee was quoted in Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [71] by Tobias JA. In Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [10], the Full Court of the Federal Court thought there was a great deal of wisdom and practicality [sic. The word “in” appears to be omitted] Lord Cooke of Thorndon’s observations in R v Chief Constable of Sussex, Ex parte International Trader’s Ferry Ltd [1998] 3 WLR 1260. His Lordship said in that case at p 1228– 1289: ‘It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the Courts of United Kingdom and beyond. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, an apparently briefly-considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at pp 230 and 234) the tautologous formula ‘so unreasonable that no reasonable authority could ever have come to it’. Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014, the precise meaning of ‘unreasonably’ in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The

simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock, at p 1064 as ‘conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt’. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.’ 30 In Norbis v Norbis (1986) 161 CLR 513 at 541, Brennan J compared the appellate review of a judicial discretion with the review of an administrative discretion and concluded that: ‘it is harder to be satisfied that an administrative body has acted unreasonably, particularly when the administrative discretion is wide in its scope or is affected by policies of which the Court has no experience.’ 31 There is a distinction between a decision which the court considers is unreasonable, and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter requires ‘something overwhelming’: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 [44] per Gleeson CJ and McHugh J, citing Lord Greene MR in Wednesbury (above) at 230. I agree with Rares J in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [27]–[29] that there is a spectrum of unreasonableness and ‘that between its extreme ends are many categories of decision with which courts might not agree or which they could regard as unreasonable but which a reasonable person could have made. The latter category of decision is immunised from judicial review because the legislature has confided to the decision-maker the task of forming the opinion or arriving at the state of satisfaction on the materials before him or her … Administrative decision-making, of its nature, involves the formation of value judgements … Value judgements are ones in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: cf Norbis v Norbis (1986) 161 CLR 513 at 518 per Mason and Deane JJ;

540–541 per Brennan J; see too at 535 per Wilson and Dawson JJ’. 32 In the present case, the question is not whether the Court disagrees with the council’s decision or regards it as unreasonable. If it is a decision which a reasonable council could have made, it is immunised from judicial review on the Wednesbury unreasonableness ground because Parliament has given the council the task of formulating a judgement as to whether development consent should be granted.” Telstra Corporation Ltd v Hornsby Shire Council In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (Telstra), Preston CJ in the NSWLEC held in relation to a decision made concerning a DA without any probative evidence at paragraphs [199]–[204] as follows: “199 There is also a broader policy reason for the Court making its determination on the basis of reason and substantiated evidence. As Galligan notes: ‘A basic aspect of rational action is that facts on which decisions are founded should be supported by good evidence. … unless there is a substratum of objective evidence for the reasons and policies acted on, discretionary decisions are liable to the charge of arbitrariness’: D J Galligan, Discretionary Powers: A Legal Study of Official Discretion, Clarendon Press, Oxford, 1990 at pp. 314 and 316. 200 This is the foundation for the no evidence ground of judicial review in administrative law: see generally, M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd ed, Lawbook Co, 2004 at pp. 193–195 and 239–245. As Diplock CJ said in Regina v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488: ‘The requirement that a person exercising quasi-judicial functions must base his decisions on evidence means no more than it must be based upon material which tends

logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. See also Mahon v Air New Zealand [1984] 1 AC 808 at 820.’ 201 In Bruce v Cole (1998) 45 NSWLR 163 at 189, Spigelman CJ held: ‘In my opinion, at common law, a decision-maker who acts without probative evidence — to which conduct the work ‘perversely’ has appropriately been attached — does not make a valid decision. It is the equivalent of acting without evidence’. 202 In Hill v Green (1999) 48 NSWLR 161 at 174[72]–175, Spigelman CJ added: ‘In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the courts should approach the construction of the statute or regulation with a presumption that the parliament or author of the regulation intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words’. 203 The EPA Act does not confer an unfettered discretion on the consent authority (or this Court on a merits review appeal) to determine a development application. The EPA Act requires the consent authority to take into consideration the relevant matters, including those in s 79C(1): Weal v Bathurst City Council (2000) 111 LGERA 181 at 185[9]–[13] and 201[80]–[82]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601[62]–[63] and 602[75]–603[77]; and Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 (31 January 2006) at [74]–[79].

Consideration of the relevant matters must be based on probative evidence. The decision reached must also involve a process of logical reasoning. 204 In the present case, there is no probative evidence upon which the Court could make findings of adverse effects on the amenity of the locality or on the health and safety of persons in the locality or on the environment. Equally, there is no logical basis upon which a decision could reasonably be made to refuse consent to the proposed base station where there is no such probative evidence of effects. To make such a decision would be to infringe these principles of proper administrative decisionmaking. The charge of arbitrariness would be made out.” Telstra indicates that a determination of a DA with no probative evidence would not only breach the requirements of s 79C but would also be subject to challenge on administrative law grounds of Wednesbury unreasonableness (see also Central West Environment Council Inc. v Orange City Council [2003] NSWLEC 131 per Bignold J at paragraphs [62]–[68]). Minister for Immigration and Citizenship v SZMDS The law regarding Wednesbury unreasonableness is evolving in the light of the High Court decision in SZMDS. This case related to an application for a protection visa under the Migration Act 1958 (Cth) where the Minister is required to be satisfied that Australia has protection obligations under the Refugees Convention. Where the Minister is satisfied, he/she is to grant a visa; where he/she is not satisfied, he/she is to refuse to grant the visa. Thus, the requirement for satisfaction as a precondition to the exercise of a power would traditionally be regarded as jurisdictional. The case centred on the power of the courts to review the finding of satisfaction by the Refugee Review Tribunal (Tribunal). The Federal Court quashed the Tribunal decision on the grounds of jurisdictional error in that the finding that the person in question was not a refugee was based on illogical or irrational findings or inferences of fact. The Minister appealed against this decision to the High Court, which allowed the appeal. Gummow ACJ and Kieffel J, in the minority, and

Crennan and Bell JJ in the majority gave joint judgments surveying developments in this aspect of administrative law. Gummow ACJ and Kieffel J noted that in the UK, the distinction between jurisdictional and non-jurisdictional facts is no longer favoured, and broader grounds of review of administrative decisions have been developed, such as abuse of power, and proportionality, or (as in Canada) of different standards of substantive review. While perhaps tempted, they were discouraged from pursuing these approaches. Rather, they focused on the importance of reasons for decision-making, and where reasons are provided, whether those reasons were logical or rational. It is noted that this analysis was not dependent upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which did not apply to the decision in question. Gummow ACJ and Kieffel J dismissed the appeal on the grounds that the Federal Court was correct in quashing a decision where a critical finding was made by inference not supported on logical grounds. Thus, Gummow ACJ and Kieffel J indicate that, where a requirement of satisfaction is jurisdictional, there is an opportunity for the finding to be reviewed if it is not logical or rational. Heydon J allowed the appeal and held that there was no illogicality in the Tribunal decision. He held that the issue was one on which minds might differ, with the differences between the Tribunal and the Federal Court being matters of degree, impression and empirical judgment rather than an error in logic by the Tribunal. Hence, Heydon J accepted that a decision could be subject to judicial review if it was illogical. Crennan and Bell JJ in a joint judgment also allowed the appeal. They framed the principal question in the appeal as to whether illogicality, irrationality or lack of articulation in a finding of a jurisdictional fact is reviewable by the courts. They traced the origins of a right of judicial review in relation to jurisdictional facts of satisfaction of the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (paragraphs [102]– [104]). They suggest that administrative decision-makers must act in accordance with three free-standing standards:

(1) they must act reasonably (2) they must act rationally, and (3) they must act logically. (See discussion at paragraphs [121]–[131].) However, they noted that there is considerable overlap between these three standards. Crennan and Bell JJ suggest that the original Wednesbury unreasonableness was the basis for the standards of rationality, but there may well have emerged in Australia a broader standard of reasonableness evolved from Wednesbury but incorporating logicality and rationality. For a decision to be illogical or irrational, there must be more than just strong disagreement. It must be a decision that could not be formed by a reasonable person. They noted that “… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is made. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or unreasonable, simply because one conclusion has been preferred to another possible conclusion.” (paragraph [131]). Implications There are some noteworthy implications of the suggested approach of Crennan and Bell JJ: • At its foundation, a decision must be based upon probative evidence. Absent probative evidence, the decision fails to meet the test of reasonableness, logicality and rationality. • The pathway between the probative evidence and the ultimate decision must be one which a reasonable person could consider as demonstrating logic and reason, although not every gap in

logic and reason in such pathways will attract judicial review. • By requiring a reasonable person to be the determiner of whether a decision pathway is logical and rational, it requires an objective test as to whether that pathway could accord to something which standard practice would consider logical and reasonable. • It focused attention more on the process of decision-making rather than the outcome of the decision-making process, although the nature of that outcome could be an indicator of want of logic and reason as to how it was derived. No doubt the evolutionary development of this aspect of administrative law will continue, and the outcome of that evolutionary process will impact on the scope of judicial review of determinations on DAs. In Hale v Parramatta, Street CJ noted that, to establish a breach of the requirement to take into account the heads of consideration in what is now s 79C of the EPA Act, required meeting a less stringent test than establishing Wednesbury unreasonableness. Perhaps the change in administrative law heralded by SZMDS will result in aligning the bar for establishing that an administrative decision fails to meet the broader requirement of reasonableness more with that already applying to compliance with s 79C. And of course it leaves unresolved the question of whether the distinction between jurisdictional and nonjurisdictional facts remains valid, particularly insofar as it relates to requirements for satisfaction of certain facts as a precondition to the exercise of a power, rather than its more limited sense (such as in Pallas Newco) where the existence of certain facts is a precondition to the exercise of a power.

¶52-090 Principles regarding the application of general principles of administrative law to the determination of a development application Principle 1: In determining a DA, a consent authority must comply with the general principles of administrative law relating to the making of administrative decisions. A breach of those principles may result in

any ensuing consent being declared void. The key general administrative law grounds for judicial review of a decision of a consent authority are as follows: (1) Absence of power: In addition to grounds already considered, such as the determining body was not the consent authority for the DA in question, or the development was prohibited by an EPI, or the development did not require consent, or a failure to meet a precondition to the granting of consent, the main area is where the decision was taken by a delegate of the consent authority, whether the delegate had the appropriate delegated power and acted in accordance with the delegation (Lyons v Sutherland, Wyong S.C. v MCC Energy, Belmorgan). (2) Consideration of an irrelevant factor: The following have been held to be irrelevant factors in determining a DA: • the identity of the applicant or proposed user (House of Peace v Bankstown C.C.) • past planning law breaches (Ireland v Cessnock C.C.), and • potential legal liability of the consent authority (Noroton) or other self interest (Clifford v Wyong S.C.). (3) Reasonable apprehension of bias: The test is whether a fairminded, properly informed law observer might reasonably apprehend that the consent authority might not bring an impartial mind to the determination of a DA (Bonaccorso). Where the consent authority is a multi-member collegiate body, it is unclear whether the “one rotten apple in the barrel” test infecting all applies or the “but for”, or determinative test that it must have made the difference in the decision applies, or indeed, whether there are different tests if the claim is apprehension of bias or prejudgment (McGovern). But it is not unlawful for a consent authority to determine a DA, where the consent authority is also the applicant, unless it took into consideration an irrelevant matter (The Queen v Whyalla).

(4) Pre-determination: This is where the test is whether the decision-maker is not open to persuasion and the conclusion already formed is incapable of change, irrespective of what evidence or arguments are presented (McGovern). (5) Fetter on discretion: This is where the consent authority has fettered or restricted its capacity to exercise its discretion by contract or agreement (Bruce Kerr v Gosford C.C., Corkhill v Hope). (6) Absence of reasonableness: Traditionally, this was the sole basis on which the courts would look at the merits of the consent authority’s decision, despite the general principle that it is not the function of a court to substitute its own decision for that of the decision-maker (Peko-Wallsend). This basis was traditionally referred to as Wednesbury unreasonableness, where the court could quash an administrative decision if that decision was so unreasonable that no reasonable authority could ever have come to it. Such a basis includes where a DA was determined with no probative evidence to support the decision (Telstra). However, this traditional basis may be evolving to a broader test of reasonableness, logicality and rationality (SZMDS).

EXERCISING DISCRETION IN DEVELOPMENT CONTROL ¶53-010 Making a determination In making a determination under s 79C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), a consent authority is required to make a merit-based decision in relation to the particular development application (DA) under consideration. It is required to take into consideration the matters specified in the section, but is not required to determine a DA in any particular way. Only the provisions of an Environmental Planning Instrument (EPI) that prohibits development are binding and determinative by virtue of s

76B of the EPA Act. Not included in s 79C is any requirement explicitly to have regard to previous decisions in similar circumstances, although nothing would preclude such consideration under the head of consideration of the public interest. Given the exercise of discretion required under s 79C, the question arises as to whether a consent authority should be bound by or influenced by precedents in similar previous determinations, or whether a particular application, although inoffensive on its own, may create a precedent for others leading to a generally undesirable outcome.

¶53-020 Emmot v Ku-ring-gai Municipal Council The classic statement of the role of precedent in the merits determination of a DA is made by Sugerman J in Emmot v Ku-ring-gai Municipal Council (1954) 3 LGR 177 in a merit appeal regarding an application for subdivision of land at Lindfield to create a battle-axe allotment. Council had adopted a code in relation to battle-axe lots, although a number of subdivisions had been approved which did not comply with the code. Sugerman J held at p 182 as follows: “It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends, inter alia, upon the existence of a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if

what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves.” Thus, in effect, Sugerman J held that applications must be considered on their own merits. It was not appropriate to refuse an application that is unobjectionable on its individual merits because it may provide a precedent for similar later applications which, in their totality, may have an undesirable impact. Further, it is appropriate to refuse an application even if earlier applications had been approved if the later application would result in an objectionable outcome.

¶53-030 Arguments used by proponents and objectors to proposals Only inferentially does this decision refer to the need for consistency in decision-making. Rather, it is addressing one of a number of arguments used by proponents and objectors to proposals seeking to blur a merits-based decision on a particular application. These are: • The “Fall of Rome” argument, namely that, if this application is approved, it will result in further similar applications, the total effect of which would be undesirable, and therefore the current application should be refused. • The “One More Won’t Matter” argument, namely that, the current position in relation to some relevant issue (such as availability of parking or traffic congestion) is already poor, and hence, the approval of an application which adds to an already unsatisfactory impact won’t cause an adverse impact as the current situation is already bad. Both arguments have a small kernel of merit, but are largely subterfuges to avoid a merits-based decision of the particular

application under consideration. However, neither argument squarely addresses the broader question of whether in the determination of similar applications or applications raising similar issues, a consent authority (and any appellate body) should have regard to consistency in decision-making.

¶53-040 Consideration of a Development Control Plan In considering the requirement to take into consideration a Development Control Plan (DCP) in determining a DA under s 79C, McClellan CJ in the Land and Environment Court of NSW (NSWLEC) in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 held at paragraph [87]: “87 Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.”

¶53-050 Botany Bay Council v Premier Customs Services Pty Ltd This view was endorsed by Macfarlan JA (with whom Ipp JA and Hoeben J agreed) in Botany Bay Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 (Botany Bay v Premier Customs), where he held at paragraph [35] as follows: “35 I conclude on this aspect of the matter by indicating my respectful agreement with the views expressed by McClellan CJ, as he then was, in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 264 that ‘consistency of decision-making must be a fundamental objective

of those who make administrative decisions’ and that ‘that objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them’ (at [88]). The ability of an individual decision maker to reject the general policy underlying a development control plan would be antithetical to the achievement of the fundamental objective to which McClellan CJ referred.” These findings relate to the need to consider a DCP but are expressed in terms of general application.

¶53-060 Segal v Waverley Council — principle of consistency in administrative decision-making The issue of the principle of consistency in administrative decisionmaking was considered by the NSW Court of Appeal in Segal v Waverley Council [2005] NSWCA 310 (Segal). This case relates to two neighbours in Bronte who each lodged DAs to construct a garage on their adjoining properties. Each DA required an opening in a sandstone retaining wall identified as a landscape heritage item under the Local Environmental Plan. Both DAs were refused by Council and both applicants appealed to the NSWLEC. The appeal of one of the neighbours, the Darlings, was heard by Commissioner Moore who dismissed the appeal on the basis that the proposed opening in the retaining wall would have an unacceptable impact on its heritage significance. The appeal of the other neighbours, the Segals, was heard by Commissioner Watts who granted approval. Although pressed to follow Commissioner Moore on the grounds of maintaining consistency of decision-making, Commissioner Watts in granting approval did not refer to Commissioner Moore’s decision, nor did he explain why he reached a different conclusion. Council appealed on the grounds that Commissioner Watts made an error of law in failing to consider the decision of Commissioner Moore and/or failing to give reasons why he did not follow it. The Segals appealed to the NSW Court of Appeal which upheld the appeal.

Tobias JA (with whom Beazley JA and Basten JA agreed) held at paragraphs [48]–[56] and [95]–[96] as follows: “48 It can be accepted for present purposes that the Council argued before Commissioner Watts that the principle of consistency in decision-making required him to follow and apply the decision of Commissioner Moore to refuse to sanction a breach of the retaining wall. However, a question arises as to the nature of that so-called principle and its relevance to adversarial litigation in Class 1 appeals in the Land and Environment Court. It is, in my opinion, a different concept to the practice that, as a matter of judicial comity, judges at first instance should usually follow the decision of another judge at first instance of co-ordinate jurisdiction unless convinced that that decision was wrong. 49 There is no doubt that in the area of administrative law and, in particular, the jurisprudence relating to the duty of an administrative decision-maker to give reasons for his or her decision, the beneficial effects of that duty include the encouragement of good administration generally as well as a careful examination of the relevant issues, the elimination of extraneous considerations and, relevantly for present purposes, consistency in decision-making: de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), 459 [9042]. The learned authors also observed: ‘Moreover, if published, reasons can provide guidance to others on the body’s likely future decisions, and so deter applications which would be unsuccessful.’ 50 The rationale for the giving of reasons by administrative decision-makers was recently expressed in the following terms by Kirby J (who dissented in the result) in Re Minister for Immigration and Multicultural Affairs; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212 where his Honour, drawing upon de Smith, Woolfe and Jowell, said (at 242 [105]) (omitting citations): ‘Rationale for reasons: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a ‘salutary discipline for those who have to decide

anything that adversely affects others’. They encourage ‘a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decisionmaking’. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases ‘public confidence in, and the legitimacy of, the administrative process’.’ 51 It is, however, important to bear in mind that this concept of encouraging consistency in decision-making is, firstly, but one of the reasons why administrative decision-makers should be required to give reasons and, secondly, is properly related to the context of administrators called upon to make what are truly administrative decisions as distinct from a judge or other judicial or quasi-judicial officer (such as a Commissioner of the Land and Environment Court) who is called upon to decide issues raised by the parties in adversarial litigation. As already noted in [40] above, the distinction between the two was emphasised by Gummow and Hayne JJ in Wang. 52 Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, affirmed by the Full Federal Court [1979] AATA 179; (1979) 24 ALR 577, and cited by the primary judge at [14], involved a decision of the Administrative Appeals Tribunal (AAT) concerning the review of the Minister’s decision under the Migration Act to deport the applicant. That review did not involve proceedings of an adversarial nature. The passage

from the judgment of Brennan J, the President of the AAT, cited by the primary judge was in the context of the AAT applying ministerial policy as such a policy was said by the President to be ‘one of the most useful aids in achieving consistency’ with other decisions in comparable cases. To the same effect, Deane J in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 646–647, in referring to the desirability of consistency in decision-making, was at pains to emphasise that, although the AAT was entitled to pay regard to its previous decisions, it was not bound to do so as each applicant was entitled to have his or her application for review decided on its own particular merits. 53 In Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37, the Tribunal refused to grant the appellant a protection visa. It did so on the basis that it did not regard the appellant as a witness of truth, his evidence being inconsistent with that of his sister. The latter had been granted a protection visa by a differently constituted Tribunal some 10 months previously. The Tribunal did not refer to that decision in its reasons refusing a visa to the appellant. The latter appealed to the Full Federal Court and raised as a ground of appeal the failure of the Tribunal to adopt an approach consistent with the facts found by that Tribunal which had heard his sister’s application. 54 The Full Federal Court (Burchett, Goldberg and Finkelstein JJ) rejected the submission that the Tribunal was obliged to adopt an approach to fact finding on the objective aspects of the circumstances of the appellant’s case consistent with the fact finding of the Tribunal which determined his sister’s application. Their Honours said (at 41 [15]): ‘Although consistency may be an important element of good administrative decision-making, each case must be considered in the context of its individual circumstances.’ 55 It is true that in Ibrahim, it was not contended that the Tribunal erred in law in failing to refer in its reasons to the decision of the Tribunal on the sister’s application or to explain why it would not

follow that decision. This is not surprising given that the Court found that there was no merit in the appellant’s submission that the Tribunal was obliged to adopt the approach of the Tribunal in his sister’s case. In my opinion, if it was not an error of law by the Tribunal to fail to follow its previous decision with respect to the sister’s application, then notwithstanding that it may have been desirable for the Tribunal to have referred to that decision and, if considered appropriate, to have distinguished it on its facts or otherwise opined that it was wrong, it cannot have been an error of law for the Tribunal to have failed to have referred to it its reasons which are otherwise unexceptionable. 56 It follows from the above discussion that Commissioner Watts was neither obliged to accept the Council’s submission that consistency in administrative decision-making required him to follow the decision of Commissioner Moore, nor was he obliged to refer to that decision in order to then distinguish it on its facts or to otherwise opine that it was wrong. This is not to say that it was not desirable for Commissioner Watts to have referred to that decision given the somewhat unique circumstances under which the two decisions were made: on the contrary, his doing so may well have avoided the present appeal. Nevertheless, it cannot be said that he committed an error of law in failing to refer to it. … 95 Furthermore, I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed in [51] above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. 96 My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of

planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above). In the present case, the planning principles in question were common to both appeals and were duly taken into consideration by each Commissioner. But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends. This is particularly so when dealing with heritage issues such as the acceptability or otherwise of the impact of a particular proposal upon the heritage significance of a heritage item which clearly involves a value judgment of a particularly subjective kind. Commissioner Watts made that judgment in the present case and his reasons for coming to that conclusion were more than adequately expressed.” Conclusions The following conclusions may be derived from the decision in Segal: • One of the benefits of a requirement for administrative decisionmakers to give reasons for a decision is the encouragement of consistency in decision-making. Reasons provide guidance for future decision-making and promote public confidence in the administrative process. • There is a distinction between the role of an administrative decision-maker such as a consent authority and an appellate body such as the NSWLEC. The concept of encouraging consistency of decision-making is more directed at administrative decision-makers rather than appellate bodies. It has no application to adversarial proceedings such as a planning appeal. • There is no obligation on an appellate body to adopt a consistent approach to merits decisions, even though it is desirable. Not adopting a consistent approach to decision-making does not

constitute an error of law. • The consistent application of planning principles is a desirable objective. But the consistent application of principles may not result in the same outcome in different cases, as each depends upon its particular fact and the evidence called by the parties. As noted by Tobias JA, consistency in decision-making requires the development of well-articulated principles and policies of general application, rather than comparing the outcome in different particular instances. A policy-based approach does not replace the exercise of discretion and makes its exercise more explicable and consistent. Since 2003, the NSWLEC has developed planning principles for application in the exercise of its merit appeal jurisdiction. The court explains what principles are as follows: “A planning principle is: • statement of a desirable outcome from; • a chain of reasoning aimed at reaching; or • a list of appropriate matters to be considered in making a planning decision. While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils’ plans and policies. Planning principles assist when making a planning decision — including: • where there is a void in policy; or • where policies expressed in qualitative terms allow for more than one interpretation; or • where policies lack clarity.”1

The then Senior Commissioner of the NSWLEC, Dr J Roseth, noted that planning principles are not the outcomes in a particular case but rather, the criteria or principles which were often implicit, not explicit, and which guided the making of the particular decision: “The word principle derives from the Latin principium, meaning the beginning, origin or source. This has given rise to many meanings of the word; however, I use it in the sense of a general assumption or belief forming the basis of a chain of reasoning. A planning principle therefore applies to a situation that arises frequently and can be applied to assist in reaching a decision in a particular case. While legal principles have always been the basis of decisions by judges, they are a new phenomenon in merit decisions by commissioners. (As far as I can tell, they are a new phenomenon in merit decisions generally; even those made by consent authorities other than the Court.) This is not to say that in the past planning policies were absent in the assessments of development proposals. They hovered in the background of most assessments, but they were usually not explicitly stated. Let me give an example. Assume that there is a proposal for a two-storey house in a street in which the existing houses are single-storey and where the only objection to the proposal is its impact on the streetscape. Where a commissioner (or anyone else) considers the proposal, he or she is likely to take into account factors such as the scale and character of the street, whether or not it is in a conservation area, the setback of the proposed house in relation to other houses, and the likelihood that one day the existing houses might also be extended to two-storeys. Assume that these considerations have led to the conclusion that the impact of a two-storey building in the street is acceptable. One way to explain this conclusion in a judgment is to state the reasoning only in relation to the particular two-storey building proposed in the particular street. An obvious disadvantage of this approach is that no one can guess what a decision is likely to be

on another two-storey building proposed in another street of single-storey buildings, even if the circumstances were fairly similar. Nor would the commissioner hearing the second case be able to apply the criteria that were applied to reach a decision in the first. The point I would like to make is that, even where a decision is expressed only with reference to a particular case, the reasons are likely to be based on criteria that have wider application and are implicit in the decision. In the present example, the criteria are likely to be those outlined above, ie the character of the street, whether or not it is in a conservation area, the setback and the likelihood of two-storey extensions. However, the decision may not explicitly state these criteria. When it does, it establishes a planning principle. This makes the decision clearer to those who are affected by it. It also assists in making future decisions of a similar kind consistent with the first.”2 While this approach relates to a planning appellate body, given the higher priority accorded to the principle of consistency in decisionmaking by consent authorities as stated by Tobias JA in Segal, they are even more applicable to consent authorities and emphasise the need for consent authorities to develop a comprehensive policy basis for the exercise of discretion in determining DAs under s 79C. The extent to which discretion plays a role in the operation of the planning system has been a matter of controversy.3 Footnotes 1

NSW Government, Land and Environment Court of NSW, accessed 1 December 2011, “Planning Principles”, Lawlink, see www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples

2

Roseth, J, 15 February 2005, “Planning principles and consistency of decisions”, Talk delivered by Dr John Roseth, Senior Commissioner, Land and Environment Court of New South Wales to the Law Society’s Local Government and Planning Law Seminar, Lawlink, see www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples

3

NSW Government, Planning NSW, August 2001 (updated April 2002), Guiding Development — Practice Notes, Exercising Discretion, Sydney.

¶53-070 Independent Commission Against Corruption — reports Such controversy has usually related to the relationship between the exercise of discretion and corruption and alleged lack of consistency in decision-making. The first issue has been raised by the Independent Commission Against Corruption (NSW) (ICAC). In its report in relation to Wollongong City Council, the ICAC noted:4 “Although council planning departments are regulators of developers, planners must also work with developers in a negotiating relationship. This is the danger: planners have high levels of discretion, developers are highly motivated to maximise profit, and the two are in an extended relationship of give and take.” The countermeasures proposed by the ICAC were as follows:5 “The strongest defences against predatory behaviour by developers are: • To create internal and external firewalls that separate, weaken or otherwise interfere with potentially corrupt relationships between developers and public officials • To create a transparent external oversight system that detects when corruption breaches the firewalls.” The first involves a separation of the assessment function from the decision-making function, while the second involves the external oversight roles of bodies such as the Department of Planning as well as joint regional planning panels and Independent Hearing and

Assessment Panels. In responses to a Discussion Paper entitled “Corruption Risks in NSW Development Approval Processes”, the ICAC noted an argument in submission to it as follows:6 “The other line of argument in submissions is that section 79C as currently drafted allows for an excessive degree of discretion in the planning system, and that of itself may be conducive to corruption, because it is difficult for observers to know what decision might or might not reasonably be expected in particular circumstances. This lack of transparency is seen as facilitating the masking of corrupt motivations.” The ICAC response to this submission was as follows: “The second line of argument in favour of limiting the discretion available under section 79C is, however, that the section allows for the consideration of matters which are not simply irrelevant, but which could be conducive to corruption. The argument appears to be that if councillors have less discretion, applicants are less likely to be either tempted or extorted into corrupt practices to ease their way through the system. There is evidence from several Commission investigations, and from literature on corruption prevention, that a high level of discretion, particularly coupled with low transparency, is conducive to corruption. The Commission does, therefore, see a need to address the issue of whether section 79C affords excessive discretion which reduces the transparency of the system and can provide a cloak for corrupt decisions, and if so, what should be done to manage the risk. The less transparent the system, the more likelihood there is of delay, and delay is also a recognised trigger for corruption — individuals needing to access a service in which delays are common may be tempted to bribe the official involved in order to move up the queue or to short-cut the process. … On the other hand, the Commission is conscious that the availability of broad discretion is a deliberate feature of the current

system, intended to produce better planning outcomes. It is also seen as allowing for the operation of local democracy. The Commission also notes that the claimed misuse of section 79C is said to result in refusals of applications which conform with relevant standards, whereas corrupt arrangements are more likely to be directed at securing approvals for developments which do not conform. The ability of the general considerations in section 79C to result in refusal of an application has in any case been moderated since the discussion paper was published. Section 79C(2) now limits the discretion of the consent authority where non-discretionary development standards apply. The Commission does not consider that the case for a fundamental redrafting of section 79C has been made on corruption prevention grounds. The Commission concludes that there is more to be gained in terms of corruption prevention by other means, for example reviewing the safeguards surrounding the use of State Environmental Planning Policy No. 1 (SEPP 1), which is the subject of separate consideration in Chapter 9. However the Commission agrees that transparency would be enhanced if reasons were required for all decisions on development applications, as was suggested in several submissions.”7 The attention of the ICAC was confined to whether s 79C should be amended, rather than looking at the interrelationship between EPIs and development control. In assessing the role of discretion under the planning system, the initial starting point is to note that the extent to which the discretionary powers in the development control process are available is dependent upon the extent to which plans do not provide fixed rules. Discretion only operates in the space vacated by fixed rules. The greater the role of fixed rules, the lesser the role for discretion in the development control process and vice versa. Of course added to this is the additional discretionary scope afforded to vary fixed development standards by SEPP No 1 or its equivalents. The second issue is where decisions are discretionary, to what extent should the exercise of that discretion be constrained or guided.

The ICAC proposed a report entitled “Anti-Corruption Safeguards and the NSW Planning System” in February 2012 (ICAC Report).8 Interestingly, the ICAC Report notes that, while complaints to the ICAC relating to planning matters are the second highest in number in relation to various categories, this high number does not directly demonstrate a high level of corruption.9 The ICAC considers that this suggests fundamental issues of concern with the planning system, although this may simply reflect the highly adversarial approach of many stakeholders in the system. The ICAC Report proposed a series of general principles as recommendations with an underlying thrust of a greater emphasis on a rules-based approach. These principles are: • providing certainty • balancing competing public interests • ensuring transparency • reducing complexity • meaningful community participation and consultation, and • expanding the scope of third party merit appeals. The interplay between the plan making provisions and the development control provisions was noted by the author of this book elsewhere.10 “In looking at the relationship between plan making and development control under the New South Wales system, the extent to which planning authorities rely upon development control as the principal planning technique is a matter of choice for the planning practitioners unconstrained by the terms of the statute. Thus the perceived trend towards an excessive reliance upon development control, as opposed to plan making, has been as a result of choice by planning practitioners. That choice may be either conscious or accidental. But you may well ask why is plan-making considered a more lofty activity than development

control; is in fact there anything wrong with utilising development control as the principal planning tool? And anyway, is there a difference between plan making and development control? The theory behind the distinction between plan making and development control is based upon the distinction between formulation and enunciation of policies in the plan making process versus a ‘merits of the case’ evaluation of individual development applications within the development control process. Thus the distinction may be posed as one between a predictive rather than reactive approach. Of course such a broad generalisation of the distinction between plan making and development control is highly simplistic as the two are not separate and distinct, but merely two ends of a spectrum in planning. And of course, in a planning system with a well established policy framework, the role of discretion within the development control process is not eliminated. Rather it focuses on the translation of broad policy objectives into specific decisions and deals with the application of principles to specific development proposals. What is to be decried is the application of discretion in the development control process in the absence of a firm policy basis. Evaluation in planning is not an objective science, but one which relies heavily upon values, upon the weight which the decision-maker gives to the various competing objectives. A policy based approach makes explicit the value choices involved in planning decision making rather than shielding such value choices in the obscurity of individual development control decisions. I am a strong advocate of a policy based approach to planning, where policy directions are made clear and explicit in plans and where plans contain some vision for the future. The features of a planning system which avoid such a policy approach and rely principally on development control in isolation as its evaluative technique, include the following: First, the absence of discernable policy approaches in plans. Second, a system where plans provide that the vast majority of development is permissible with consent, but provide no guidance for exercise of discretion in the development control process. Third, where

plans themselves are little more than development control devices directed towards either approving or prohibiting specific development proposals.” As Galligan noted in his major work — Discretionary Powers: A Legal Study of Official Discretion:11 “According to its etymological origins, the idea of discretion is judgment, in particular good judgment. In its modern legal usage, however, discretion has come to connote, perhaps unfortunately, rather autonomy in judgment and decision. To have discretion is, then, in its broadest sense, to have a sphere of autonomy within which one’s decisions are in some degree a matter of personal judgment and assessment.” Footnotes 4

NSW Independent Commission Against Corruption (ICAC), October 2008, Report on Investigation into Corruption Allegations Affecting Wollongong City Council, Part 3, Sydney, p 10.

5

ibid.

6

NSW Independent Commission Against Corruption (ICAC), September 2007, “Corruption Risks in NSW Development Approval Processes”, ICAC Position Paper, Sydney, p 23.

7

ibid, p 24.

8

NSW Independent Commission Against Corruption (ICAC), February 2012, “Anti-Corruption Safeguards and the NSW Planning System”, ICAC Report, Sydney.

9

ibid, p 5.

10

Whitehouse, JF, 1985, “Discretion in Environmental

Planning: New South Wales Experiments”, University of Western Australia Law Review, Volume 16, p 290, 291–2. 11

Galligan, DJ, 1990, Discretionary Powers. A Legal Study of Official Discretion, Clarendon Press, Oxford, p 8.

¶53-080 Benefits of providing an element of discretion on the determination of development application The benefits of providing an element of discretion on the determination of DAs may be argued as follows: • Fixed rules may have unintended consequences when applied to individual circumstances and discretion permits flexibility in avoiding unintended consequences. • Individual cases may have varied factual contexts which are not wholly applicable for the application of a general fixed policy, and discretion enables decisions to be crafted to address the particular factual circumstances in an individual case. • Where a fixed rule relates to a standard by which development must be undertaken in order to achieve a certain outcome, that outcome may be capable of being achieved by other means not envisaged by the makers of the fixed rules, and the exercise of discretion enables the desired outcome to be achieved by different means. • Discretion enables a decision-maker to take into account new information and ideas in circumstances where a fixed rule has become outdated or was formulated without the benefit of new information and ideas.

¶53-090 Disadvantages of providing a broad discretion in the determination of development applications

The disadvantages of providing a broad discretion in the determination of DAs may be argued as follows: • Broad discretion provides circumstances where corruption may occur. • Broad discretion may lead to inconsistent decision-making, undermining public confidence in the decision-making process. • Broad discretion gives no element of predictability in decisionmaking, leading applicants and objectors to expend effort and expense which could have been avoided if there were fixed rules. • Broad discretion may lead to an incremental undesirable change by the tyranny of small decisions.

¶53-100 Exercise of discretion — legal constraints The exercise of discretion is constrained by administrative law relating to: • exercising powers for a lawful purpose • not exceeding power • considering irrelevant factors • failing to consider relevant factors • avoiding actual or apprehended bias • pre-determination • fetter on discretion • failure to accord procedural fairness • failure to comply with required decision-making processes, and • lack of reasonableness.

Within these legal constraints, the disadvantage of broad discretion may be countered and the benefits of discretion may be obtained by addressing the following questions: • How are decisions made?: This involves considering a separation between assessment and determination, and by providing a level of collegiality and externality in decision-making • Who makes decisions?: This involves ensuring that decisionmakers possess the requisite level of both skill and experience, so that discretionary decisions are truly the application of expert judgment • What guides decisions?: This involves providing a comprehensive policy basis or context to both inform and guide the exercise of discretion in individual matters without those policies having the inflexibility of fixed rules. Where there is a separation between the assessment role and the determination role in development control, the question arises as to the extent to which a decision-maker can rely upon assessments undertaken by others.

¶53-110 Leichhardt Municipal Council v Minister for Planning and Director of Planning In Leichhardt Municipal Council v Minister for Planning and Director of Planning (1992) 78 LGERA 306 (Leichhardt v Minister), the NSW Court of Appeal provided some comments on how matters are considered by Ministers, and by extension of those same principles, by departmental heads and corporate bodies like a council. Sheller JA said at p 331: “As part of this argument it was submitted that consideration of matters relevant to the decisions to make the environmental planning instruments could not be left by the Minister to his department. The force of this argument has to be considered against the principles enunciated in Carltona v Commissioners of

Works [1943] 2 All ER 560 and 563, Bushell v Secretary of State for the Environment [1981] AC 75 at 95E–96A, Guthega Development Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 363 at 368D–E; 61 LGRA 401 at 417, R v Secretary of State for the Home Department; Ex parte Oladehinde [1991] 1 AC 254 at 300 and Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 65–66. In Bushell’s case, in a passage which was quoted with approval by Brennan J in Peko Wallsend (at 66) Lord Diplock said (at 95): ‘Discretion in making administrative decisions is conferred upon a Minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department for which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the Minister’s own knowledge, his own expertise.’ It can be assumed that parliament, in providing for the exercise by a minister of an administrative power or discretion, would be aware of the practicalities and constraints involved in administering the Act. On the one hand proper consideration by department officers will acquit the minister of the need to engage in independent scrutiny: Guthega Developments Pty Ltd v The Minister (at 368E). On the other hand the minister’s decision will be tainted by any short-comings in his departmental officers’ consideration of the matters.”

¶53-120 City of Botany Bay v New South Wales Land and Housing Corporation In City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160 (Botany Bay v Land and Housing Corporation), Sheahan J in the NSWLEC heard a challenge to an approval (in this case under Pt 5 of the EPA Act) on the basis of an

absence of proper consideration. In this case, the public authority had outsourced its consideration to private consultants, and then subject to independent review by other private consultants before approval by an official of the corporation. Sheahan J held that no breach of law occurred in the corporation relying on external assessment. Sheahan J held at paragraphs [86]–[87]: “86 Accordingly, there is nothing to forbid or preclude the Corporation or its delegate, using expert external advisors, such as SMEC,12 to prepare such material for its consideration, nor someone such as Bushby13 to review it. Indeed, there is some merit in Mr Tomasetti’s submission that when a government agency is empowered to grant itself an approval, this practice adds appropriate transparency to the process. The materials also make clear that the ‘collective knowledge experience and expertise’ available to it within Housing NSW was also drawn upon. See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; In re Golden Chemical Products Ltd [1976] Ch 300; Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75, at 95G; Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; and Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121; but c.f. Tickner v Chapman (‘Tickner’) (1995) 57 FCR 451, Hamman v Lake Macquarie City Council [1999] NSWCA 82, and GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303; (2006) 151 LGERA 116 where there were specific strictures on how the decision-maker must personally act. Even so, Tickner does not totally exclude the decision-maker’s capacity to consider a matter, relying on another person’s description or summary of it — see discussion in cases such as Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396, at [168]ff, and Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381, at 426 [211]. 87 All the material prepared as I have described was checklisted, and then collated by Shanahan to be placed before Hicks.14 She was entitled to rely upon it. There is no evidence that she did other than give it her close attention ‘to the fullest extent possible’.

There is no evidence that she ‘abdicated’ her precise responsibilities. No adverse interference can or should be drawn from the dates on the various documents involved — suspicion is not enough (see Parramatta City Council v Hale (1982) 47 LGRA 319, at 345) — and there is a presumption of regularity.” Hence, Botany Bay v Land and Housing Corporation authorises a decision-maker in considering a matter to rely upon another person’s assessment, including external consultants, provided that the decision-maker does not abdicate its responsibilities but gives the matter close attention. Footnotes 12

CCH comment: SMEC are private consultants.

13

CCH comment: Bushby was a private consultant.

14

CCH comment: Hicks was the officer in the corporation who made the decision.

¶53-130 Schroders Australia Property Management Ltd v Shoalhaven City Council In Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (Schroders), Ipp JA (with whom Spigelman CJ and Sheller JA agreed) held at paragraph [67]: “67 The terms of Mr Webster’s advice made it crystal clear that the decision was for the Council itself. There is no direct evidence that the councillors, individually, had read Mr Webster’s advice. Nevertheless, material in the possession of the Council will, generally, be treated as being in the possession of the councillors: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31 per Gibbs CJ.”

¶53-140 Centro Properties Ltd v Hurstville City Council Further attention is directed to the decision of Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 (Centro Properties), referred to in the discussion of s 79C, where McClellan CJ held that the Carltona15 principle (see ¶48-160) did not apply to decisions of councils relating to DAs. He held that a council must itself consider the relevant matters required but it may be informed about those matters by its officers’ report in summary form. He held that, if an officers’ report is silent on a matter, then a council could not have considered that matter. Footnotes 15

Carltona v Commissioners of Works [1943] 2 All ER 560 and 563.

¶53-150 Principle regarding the reliance upon staff to assist the consent authority in determining a development application Principle 1: Where a decision is made by a Minister, proper consideration by officers of the Minister’s department will acquit the Minister of the need to engage in independent scrutiny (Carltona). However, any deficiencies in the departmental officers’ consideration will taint the Minister’s consideration (Leichhardt v Minister, Guthega Development Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 363). The collective knowledge, information and expertise of the departmental officers should be treated as the Minister’s own knowledge, information and expertise (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40). However, the Carltona principle does not apply to councils in determining a DA (Centro Properties). In determining a DA, a council must itself consider the relevant matters. However, it may be informed

about these matters by its officers’ reports (or consultants or contactors) (Botany Bay v Land and Housing Corporation) in summary form. But if the officers’ reports before the council are silent on a matter, then a council cannot be said to have considered the matter (Centro Properties).

PART H NATURE OF A CONSENT ¶54-010 Granting a development consent The consent authority’s powers to determine a development application (DA) are provided in s 80(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as follows: “80 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.” Thus, a consent authority determines a DA by either granting a development consent, with or without conditions, or refusing it. Where a DA is for subdivision, the consent authority is required to refuse it if the subdivision would result in a contravention of the EPA Act, regulations or an Environmental Planning Instrument (EPI), whether or not the contravention would arise out of the DA or any other development (s 80(2)). This provision is required where the subdivision DA itself would not contravene the EPA Act, etc, but would result in a contravention for another development. An example of this would be where a DA for subdivision created two lots of 42 ha and 40 ha, in an area where there is a minimum lot size of 40 ha. Subsequently, a DA is lodged for subdivision of the 42 ha lot to create a new lot of 40 ha. Thus, the DA itself is compliant but the effect would be to make the residual lot non-compliant. Section 80(2) would require the consent authority to refuse such a DA for subdivision.

In granting a development consent, in addition to the power to condition a consent, the consent authority has the power to: • grant a “Deferred Commencement” Consent, which is a consent which is granted “… subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition (s 80(3))”, and • grant a total or partial consent (s 80(4)). Where a consent is partial, the consent authority may not (but does not have to) refuse consent for the part not approved, and it may subsequently grant a consent for that part not approved. Where this is what was applied for by the applicant in the DA, it is known as a staged development consent and is subject to additional provisions by s 83A–83D, which were discussed previously in relation to staged DAs (see Chapter ¶45). In addition to any conditions imposed by the consent authority, if a development consent is granted to a building where, additionally, a construction certificate is issued (either by the consent authority or an accredited certifier), any approved plans or specifications issued as part of the construction certificate are taken to be part of the development consent (except for the purposes of a modification application under s 96) (s 80(12) of EPA Act). This means that the consent authority’s enforcement powers in relation to a development consent also apply to the construction certificates, approved plans or specifications as if they formed part of the development consent.

¶54-020 Notification following a determination Following a determination of a DA by the consent authority, the consent authority is required to notify various persons under s 81 including: • the applicant • persons who made submissions (if the DA was for designated

development), and • the relevant council, if the consent authority is not the Council. With regard to persons who made submissions (if the DA was for designated development), in such notification to objectors, they must be advised of their appeal rights and the applicant’s appeal rights. This also applies to DAs for State significant development, which would otherwise have been designated development. Additionally, the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) requires notice to be sent to any person who made a submission on the DA, irrespective of whether the DA was designated development or not (cl 102(2) of EPA Regulation). The contents of any notification of the determination of a DA are further expanded by cl 100 of the EPA Regulation. Additionally, if the DA affects a critical habitat, or is likely to significantly affect threatened species, etc, the consent authority must notify the Director-General of National Parks and Wildlife or the Director of NSW Fisheries (cl 100(6) of EPA Regulation). If the DA relates to land owned by a Local Aboriginal Land Council, notification of determination needs to also be given to the NSW Aboriginal Land Council (cl 100(7) of EPA Regulation). Notification is required to be sent within 14 days after the date of determination of the DA, but a failure to send the notice within the 14day period does not affect the validity of the notice or any consent to which it relates (cl 102 of EPA Regulation). Where a development consent has been granted, the following effects or requirements: • A consent which authorises the erection of a building also authorises the use of that building for the purpose specified in the DA (s 81A of EPA Act). The effect of this provision is discussed earlier in Chapter ¶37 in relation to DAs. • Where the development consent authorises the erection of a building, the erection of the building must not commence until a

Principal Certifying Authority (PCA) has been appointed, a construction certificate has been issued, the PCA has given at least two days’ notice to the consent authority of the appointment, and the Council has been given at least two days’ notice of the intention to commence erection of the building (s 81A(2) of EPA Act). This does not apply to Crown building work (s 81A(6) of EPA Act). • Where the development consent authorises subdivision it may also authorise the carrying out of works in connection with the subdivision, including construction of roads and drains (s 81A(3) of EPA Act). • Where the development consent authorises subdivision, this work must not commence until a PCA has been appointed, a construction certificate has been issued, the PCA has given at least two days’ notice to the consent authority of the appointment, and the Council has been given at least two days’ notice of the intention to commence the subdivision work (s 81A(4) of EPA Act). This does not apply to Crown building works (s 81A(6) of EPA Act). A development consent is not a personal right held by the applicant only and incapable of being utilised by other persons. A development consent runs with the land and is available to be utilised by any person lawfully entitled to the use and enjoyment of the land to which the consent relates. Thus, Else-Mitchell J held in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 (Royal Ryde Homes) at p 324: “It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.” Similarly, Hope J held in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at p 433–434:

“… a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers …”

¶54-030 Parramatta City Council v Shell Co In Parramatta City Council v Shell Co [1972] 2 NSWLR 632 (Parramatta v Shell), Hope JA in the NSW Court of Appeal (with whom Jacobs JA and Manning JA agreed) held that the construction of a development consent should not be approached “… in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and occupiers of the land” (at p 637). The description of a development consent as operating in a manner, in rem, refers to the Latin term “against or about a thing”, referring to an action directed towards property, rather than towards a particular person (in personam). An action in rem is upon the property itself and does not attach to a particular person. It operates at large in relation to the property in question, irrespective of the persons involved. By using this analogy in relation to a development consent, Hope JA is highlighting the fact that a development consent applies to the land itself, irrespective of which particular persons may be in a position to act on it, or be affected by it, in the course of time.

¶54-040 Wingecarribee Shire Council v Concrite Quarries Pty Ltd In the Land and Environment Court of NSW (NSWLEC) in Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97, Lloyd J held at paragraph [21]: “The nature of a determination which operates in rem is explained in Spencer Bower and Turner: Res Judicata, 2nd ed (1969) at 213: ‘[A decision in rem] is one which declares, defines, or otherwise determines the status of a person, or of a thing,

that is to say, the jural relation of the person, or thing, to the world generally, and therefore is conclusive for, or against, everybody, as distinct from those decisions which purport to determine the jural relation of the parties only to one another, and their personal rights and equities inter se, and which, therefore, are commonly termed decisions in personam.’”

¶54-050 Winn v Director General of National Parks and Wildlife In Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 (Winn), Stein JA held at paragraph [199] that “… a consent is issued in rem …”. Spigelman CJ (with whom Powell JA agreed) held at paragraph [4]: “4 A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.” Conclusion From Winn, it can be concluded that: • A development consent constitutes a unilateral act on the part of a consent authority expressed in a formal manner to the world at large with enduring functions. In some respects, a development consent is equivalent to a document of title.

¶54-060 Auburn Council v Nehme In Auburn Council v Nehme [1999] NSWCA 383 (Nehme) in the NSW Court of Appeal, Handley JA (with whom Meagher JA and Beazley JA

agreed) held at paragraph [25]: “25 However a consent is not a general licence to carry out development, and in particular is not a general licence to continue to use the land for the authorised purpose. It is a particular licence to carry out development which is conditionally prohibited by a planning instrument. Its function is merely to make lawful development which is prohibited by that instrument without consent.”

¶54-070 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd Some caution, in relation to referring to development consents as giving rise to rights “in rem”, is required, as indicated by McHugh ACJ, Heyden JJ (with Kirby J and Callinan J in dissent) in the High Court in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; 220 CLR 472 at paragraph [50]: “50 The operation of the EPAA to forbid any person using land otherwise than in accordance with the use permitted by a development consent has sometimes been described by drawing analogies with principles of the law of real property. References may be found in the decided cases to planning restrictions ‘enur[ing] for the benefit of all future owners or occupiers’ (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433–434) or giving rise to rights ‘in rem’. (Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 at [199] per Stein JA.) Drawing analogies of that kind may, in the particular facts of an individual case, provide a familiar or convenient summary of the result of applying the relevant statutory provisions. Such analogies, however, provide no satisfactory basis for the consideration of any novel case. It is the applicable statutory provisions, and those alone, which must be examined in order to determine the rights of the parties. In particular, to say as Meagher JA did in the Court of Appeal (2002) 55 NSWLR 446 at 449 [13] [emphasis added] that ‘the council’s consent to the subdivision operates to create a right in rem, so that it may be relied on (inter alia) by all later transferees of any lot’ is to express

a conclusion which, if valid, must find its justification in the relevant statutes.” The majority of the High Court in Hillpalm held that, in the case of a development consent for a subdivision, it did not create a right in rem in the context of the Torrens Title system under the Real Property Act 1900 (NSW), but rather in that particular context, if any right was created, it was a right in personam.

¶54-080 Miller-Mead v Minister for Local Government In the United Kingdom Court of Appeal decision of Miller-Mead v Minister for Local Government [1963] 2 QB 196 (Miller-Mead), a number of important principles about the nature of a planning permission were made. Lord Denning MR said at p 215: “A grant of permission runs with the land and may come into the hands of people who have never seen the application.” Upjohn LJ and at p 223–224 as follows: “It is said that we must construe this permission in the light of the application for permission which was made on October 1 and that application was plainly confined to the parking of caravans which were not being used for human habitation. But I cannot accept that argument. It must always be remembered that the grant of permission runs with the land under section 18(4) of the Town and Country Planning Act, 1947, and a successor in title is [p 224] entitled to rely on the actual words of the grant: he will not have seen the application. But in any event the principle sought to be established seems to me unsound. The application may ask for too much or, as Mr Megarry submits in this case, too little, but it is entirely a matter for the planning authority to consider what permission is to be granted and I do not see how logically one can construe the permission by reference to the application made.”

Putting aside until later the extent to which reference can be made to the application in construing a consent, Miller-Mead notes that a planning permission runs with the land to which it applies and may be utilised by any person who has the rights to that land. Thus, a development consent differs from other statutory approvals such as an environment protection licence under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) or an approval of a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), which are personal and hence, require an additional approval for their transfer to another person to be used, rather than running with the land.1 Footnotes 1

See EPBC Act, s 145B and POEO Act, s 54.

¶54-090 F Lucas & Sons Ltd v Darking and Horley Rural District Council Where a development consent is granted for development, but that development approval is only partially implemented, is there any obligation of the person with the benefit of the development consent to complete the entire development as approved, or can that person merely implement part of the approved development without being in breach of the development consent? This question was addressed in an English decision in F Lucas & Sons Ltd v Darking and Horley Rural District Council (1964) 17 PQ CR QBD 111 (Lucas), a decision of Winn J in the UK High Court, Queen’s Bench Division. The plaintiffs sought a declaration that a planning permission granted by the Council for a residential subdivision at the delightfully named Hogspudding Lane, Newdigate, Surrey was still valid, despite only two of 28 approved houses having been erected. Winn J granted the declaration and held at p 116–118 as follows:

“The more basis matter, I think, is that, whilst a planning authority may well have as its object in granting planning permission for a contemplated housing estate upon a lay-out, considered by the planners, the achievement of a whole, it does not follow as a matter of law that development conforming with that lay-out is only permitted if the whole lay-out is completed and conditionally upon its completion. The motive for acceptance of a change of use — for example from agricultural land to residential use — may well be the achievement by the planning authorities, in their area of jurisdiction, of a well-laid out, symmetrical, balanced housing estate; but, as I see it, those are matters of motivation, matters of planning policy which operate in the minds of the planning authorities, but are not the subject or defining scope of the planning permission which for those reasons they see fit to grant. The authorities do not permit the development of a housing estate of, e.g. twenty-eight houses, they permit the development of sites of land delineated upon the plan respectively and separately by the erection upon them of dwelling-houses to be occupied as such with those areas of land, contemplating that cumulatively such items or exercises of development will produce the intended housing estate. What would be contrary to the statute, unless done in pursuance [p 117] of planning permission, would be the erection of any one of those houses, or occupancy of any building erected upon any of these sites, otherwise than in conjunction with the area of land shown on the application or otherwise than for use as a dwelling-house. Without, as I say, going into any detailed consideration of inconvenience, I think that it is right to approach this problem on the basis of an assumption that Parliament cannot have intended to leave individual owners of separate plots comprised in the contemplated total housing scheme dependent upon completion of the whole of the scheme by the original developer, or by some purchase from him so that they would be vulnerable, were the whole scheme not completed, separately to enforcement

procedure which might deprive them of their houses and of the money which they would have invested in those houses, whether or not they built them themselves. While it has been said by Mr Stuart Shields, and I have paid full attention to this, that such an appalling occurrence can be avoided if expert advice and great care is taken before a plot or house, as the case may be, is bought by an incoming dweller upon only a partially completed housing estate and by taking express covenants from the developer, I cannot overlook the practical difficulty of obtaining any real redress against a developer who may have failed financially or of obtaining by specific performance proceedings the actual completion of the whole estate. That is only a consideration. All other examples of convenience or inconvenience are only considerations which tend one way or another to make it more probable that the intention of Parliament to be derived from the statutory provision was, on the one hand, to treat such permission as was given in 1952 as comprising individual development permissions and user permissions for the several plots included in the area of the permission, or, on the other hand, as permission the validity of which and the immunity afforded by which would depend as a condition precedent or subsequent on the completion of the whole project in contemplation of which the permission was granted. I prefer the former interpretation of the intention of Parliament. It seems to me, too, that the point made by Mr Bridge, which, again, does not need to be fully developed, that one should, before adopting the interpretation which Mr Stuart Shields contends for, have regard to the practical difficulties of applying it, has very considerable force. Were it right to say that the grantee of such a planning permission as this 1952 planning permission was only enabled thereby to develop the area of land conditional upon his completing the whole contemplated development, it would be very difficult at any given moment to say whether (assuming that some [p 118]

houses had been built but that not all the sites included in the scheme had been filled) the development already achieved was permitted development or development without permission, in so far as it could possibly in those circumstances be said to depend upon the intention of the developer, or upon such considerations as whether he was now too old to carry through the scheme or financially too weak to do so, or too busy in other areas with other buildings of a more profitable kind. It would, I think, present a quite insoluble problem from the practical point of view when an enforcement notice, which ex hypothesi is supposed to have been served, was challenged and the Minister, who now exercises that jurisdiction, was called upon to consider whether the allegations in the enforcement notice of development without permission, or contrary to some condition attached to the permission, have been established. This is one of the reasons why I think that the right view is that this planning permission in 1952 permitted each and every item comprised in the application made and granted. Those are considerations which may perhaps be said to be rather arguments as to the convenience or suitability of one interpretation rather than the other. Fundamentally the problem is: what does the statute say? In my judgment, the statute says no more than that ‘development’ is the development defined in section 12(1) and by section 18(1) planning permission is required for the carrying out of any such development. By consequential provisions, it is enacted that development carried out without permission or in contravention of the condition is contrary to the statute and can be dealt with by enforcement notice subject, of course, to a time-limit.” The EPA Act has a similar structure to the UK provisions considered in Lucas, from which the following conclusion may be derived. Where a development consent authorises a development, it is open to the person having the benefit of that consent to only complete or undertake a part or component of the approved development. In doing so, the person, having the benefit of the development consent, is not in breach of the consent, nor is there any obligation on the person to complete the entire development as authorised by the development

consent. Thus, a development consent should be seen as an authorisation permitting the holder to undertake the whole or part of the development so approved, rather than a requirement to do so. Provided the part of the development undertaken is not in breach of a condition of the consent, there is no obligation or requirement on the holder of the development consent to carry out the whole of the development approved by the consent. The holder of the consent may take no action at all (in which case the consent may lapse, having regard to the later discussion of the lapsing of development consents) or the holder of the consent may undertake only part of the development approved by the development consent and provided undertaking only part of the approved development does not involve any breach of a condition of the consent, there is no breach of the consent if the holder does not undertake the remainder of the development authorised by the consent.

¶54-100 Auburn Municipal Council v Szabo In Auburn Municipal Council v Szabo (1971) 67 LGRA 427 (Auburn v Szabo), a number of development consents applied to the same property. These development consents approved a range of uses including uses as a garage, wheel-alignment and balancing business, and a gymnasium for boxing training. In this case, Hope J in the Supreme Court of NSW was required to consider the effect of a later development approval on the operation of an earlier approval. Hope J held at p 433: “I do not think that if a consent has been given by a council under the provisions of the County of Cumberland Planning Scheme Ordinance, a later consent for a different use operates in any way to determine or revoke the earlier consent. Apart from the provisions of cl 41(5), there are no limitations to be found in that ordinance on the temporal operation of a consent. That subclause requires that a development the subject of a consent in respect of land situated within a living area zone must be substantially commenced within two years of the date of consent, and that if it

is not so substantially commenced, the consent is to be void unless the Council extends that period. There is no issue in the present case that the use approved by the various consents other than the consent granted in September 1958, was substantially commenced within the necessary period of two years. If then a consent, not expressed to be for a limited period, has been granted which does not become void by reason of cl 41(5), that consent continues indefinitely in operation. Although the County of Cumberland Planning Scheme Ordinance could have been drafted so as to authorise councils to revoke consents, it was not so drafted, and they have no power to revoke consents. In these circumstances it seems to me that the granting by a council of a consent for a different use from that approved by an earlier consent, and the early use can continue, or if it ceases can be recommenced at any later date, and it can be continued or so recommenced by authority of the original consent, so long as the County of Cumberland Planning Scheme Ordinance remains in force in respect of the land. If, for example, the owner of a shop applied for the council’s approval to use the shop as a greengrocer’s shop and commenced the use for that purpose, he will be entitled to continue to use it for that purpose even though the Council, on a later application, had given him approval to use the shop for some other purpose, such as that of a grocery. Moreover, if he does, pursuant to such an approval, cease to use the shop for the purposes of greengrocer’s business and commenced to use the premises as a grocer’s shop, he can cease to use it as a grocer’s shop and recommence to use it as a greengrocer’s shop by virtue of the authority of the original consent. Accordingly, whether or not the use of the premises for the purpose of a wheel-alignment and balancing business was intended either by Mr McGregor or by the Council to be exclusive, a consent to use the premises for that purpose would not operate to determine, limit or revoke the earlier consent, whatever that consent authorised.” Conclusions The following conclusions may be derived from Auburn v Szabo:

• The granting of a later development consent does not operate to revoke an earlier development consent. • Where a development consent is granted without any condition limiting its duration, and that consent has not lapsed for want of physical commencement, the consent continues to operate indefinitely. • Where a development consent is granted for one use, and a subsequent development consent is granted for another use, the first use may be continued despite the grant of a consent for the second use, or if the second use is commenced and the first use ceases then at a later time the first use can be resumed in reliance on the first consent. In Auburn v Szabo it was held that, where a development consent is granted without conditions limiting its duration, and that consent has not lapsed for want of physical commencement, the consent continues indefinitely. This recognises that a development consent may contain conditions limiting its duration. Such conditions may take a number of forms including: • a condition which time-limits the consent, such as a condition providing that the consent expires on a specified date or after a specified period from its grant or commencement. • where the nature of the development itself is limited, not by time, but where the development is capable of being spent and exhausted and hence, has no more work to do. An example of this would be a development consent granted to quarry a resource within a specified three dimensional space. In this case, the development consent would be spent and exhausted when this three dimensional space has been exhausted.

¶54-110 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment Other than such conditions limiting the duration of a consent, the

question arises as to whether a development consent may be abandoned by some act of the person with the benefit of the consent. This question was considered by the UK House of Lords in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 All ER 358 (Pioneer Aggregates), where Lord Scarman (with whom Lord Fraser of Tullybelton, Lord Roskill, Lord Bridge of Harwick and Lord Brandon of Oakbrook agreed) held at p 362–363: “The first question: abandonment If the board is right, a valid planning permission can be abandoned by the conduct of a landowner or occupier of land; and the effect of the party’s conduct will be to void all persons interested in the land now or hereafter whether or not they have notice of the abandonment. The planning permission would be entered in a public register; but not so its abandonment. Nor would it be possible by inspection of the land to discover whether the permission had been abandoned, for the absence of implementation of a planning permission is no evidence that a valid permission does not exist. It is perhaps not surprising that no trace of any such rule can be found in the planning legislation. If there be such a rule, it has been imported into the planning law by judicial decision. The case on which the appellant relies for the existence of such a rule is Slough Estates Ltd v Slough BC (No 2) (1968) 19 P & CR 326, Megarry J; affd [1969] 2 All ER 988, [1969] 2 CH 305; affd [1970] 2 All ER 216, [1971] AC 958. It is the only reported case in which a rule of abandonment has been recognised as applicable to a planning permission. … On appeal, this House held that the purported permission of 1945 was ineffective because it failed to identify the land to which it related. Lord Pearson, with whose speech the other members of the House agreed, expressly reserved the question whether a planning permission could be abandoned. …

My Lords, on the question of abandonment I find myself in agreement with both courts below that there is no general rule in the planning law. In certain exceptional situations not covered by legislation, to which I shall refer, the courts have held that a landowner by developing his land can plan an important part in bringing to an end or making incapable of implementation a valid planning permission. But I am satisfied that [p 363] the Court of Appeal in the Slough case erred in law in holding that the doctrine of election between inconsistent rights is to be incorporated into the planning law either as the basis of a general rule of abandonment or (which the courts below were constrained to accept) as an exception to the general rule that the duration of a valid planning permission is governed by the provisions of the planning legislation. I propose now to give my reasons for reaching this conclusion. Planning control is the creature of statute. It is an imposition in the public interest of restrictions on private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury DC v Secretary of State for the Environment [1980] 1 All ER 731, [1981] AC 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. Planning law, though a comprehensive code imposed in the public interest, is, of course, based on the law. Where the code is silent or ambiguous, resort to the principles of private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament

as evinced by the statute, or statutory code, considered as a whole.” Conclusions The following conclusions may be derived from Pioneer Aggregates: • There is no general rule in planning law that a development consent can be abandoned by the conduct of the landowner or occupier of the land. The duration of a valid development consent is governed solely by the planning legislation. • Planning control is a creature of statute having a public character. As such, principles of private law, such as election, should not be imported into planning law unless expressly authorised by statute.

¶54-120 Abandonment of development consents The decision in Pioneer Aggregates in relation to abandonment of development consents has been followed in New South Wales. In Nehme, Handley JA (with whom Meagher JA and Beazley JA agreed) after citing relevant extracts of Lord Scarman’s decision in Pioneer Aggregates held at paragraphs [22]–[24]: “22 I find this reasoning both relevant and compelling in its application to the Act in its form relevant to this appeal. It was followed by the Appeal Division in Park Street Properties Ltd v City of South Melbourne [1990] VR 545 in relation to similar legislation. That Court distinguished the later decision of the English Court of Appeal in Cynon Valley B C v Secretary of State for Wales (1986) 85 LGR 36, as depending on the terms of special legislation, and I adopt their reasoning on this point. 23 Mr Ayling, who very properly had referred the Court to Pioneer Aggregates, sought to rely upon some Australian authority to the contrary including Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 and Tannous v Canterbury Municipal Council (1984) 52 LGRA 308, 316. The first dealt with the effect of existing use provisions and not with a consent as such. The second contained a dictum of Perignon J

that a consent could be abandoned, but his Honour did not have the benefit of argument on this question. The other decisions he referred to were considered, but not followed, by the Appeal Division in Park Street Properties Pty Ltd v The City of South Melbourne. 24 In my judgment there is no general principle of planning law in this State that a valid consent which has not lapsed and is capable of being implemented can be extinguished by abandonment. See also Penrith City Council v Penrith Waste Services Pty Ltd (19/12/95 unrep) per Talbot J at p 35, affirmed but not expressly on this point (1998) 101 LGERA 98. On the contrary, subject to the express provisions of the Act, such a consent remains in force indefinitely.” Thus, the principle in Pioneer Aggregates in relation to abandonment of development consents has been endorsed in New South Wales. However, the EPA Act provides a specific power for the surrender of development consents. Section 80A(1)(b) authorises a consent authority to impose as a condition on the grant of a development consent a requirement for the modification or surrender of a development consent applying to the land to which the DA being determined applies. Any such surrender or modification of a development consent is required by s 80A(5) to be undertaken in accordance with the regulations. Clause 97 of the EPA Regulation requires a specific notice including the information specified in that clause. Auburn v Szabo recognised that multiple development consents may apply to the same property.

¶54-130 Pilkington v Secretary of State for the Environment The issue of the lawfulness of multiple development consents applying to the same land and how those consents operate one against the other has been considered in the UK in Pilkington v Secretary of State for the Environment [1974] 1 All ER 283 (Pilkington), a decision of the

Queen’s Bench Division. In Pilkington, a planning permission was granted in 1953 (No 601) for the erection of a bungalow and garage on what was described as Site A and the use of the land as a smallholding. That bungalow was not built. In 1954, after a change in ownership of the land, a planning permission (No 756) was granted for the erection of a bungalow on Site B with the remainder of the land as its curtilage. This permission was implemented and a bungalow built on Site B. Later, a further planning permission was granted to build another bungalow on Site C, and a bungalow was built on Site C. The owner then became aware of the 1953 permission (No 601) and sought to build a third bungalow on Site A. This action prompted an enforcement notice from the local authority. The Secretary of State determined that planning permission No 756 was inconsistent with and an alternative to permission No 601 and when the former was implemented, the latter became incapable of implementation. Lord Widgery CJ (with whom Bridge J and May J agreed) held at p 286–288: “There is, perhaps surprisingly, not very much authority on this point which one would think could often arise in practice, so I venture to start at the beginning with the more elementary principles which arise. In the first place I have no doubt that a landowner is entitled to make any number of applications for planning permission which his fancy dictates, even though the development referred to is quite different when one compares one application to another. It is open to a landowner to test the market by putting in a number of applications and seeing what the attitude of the planning authority is to his proposals. Equally it seems to me that a planning authority receiving a number of planning applications in respect of the same land is required to deal with them, and to deal with them even though they are mutually inconsistent one with the other. … [p 287]

What is the consequence here? The fact that application 756 related to a bungalow central in the site, and the fact that it contemplated only one bungalow on the whole site, and the fact that that permission has now been implemented, means in my judgment that one must look back at permission 601, and see whether in fact that development there contemplated can now be carried out consistently with the development sanctioned in the implemented application number 756. For this purpose I think one looks to see what is the development authorised in the permission which has been implemented. One looks first of all to see the full scope of that which has been done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented. Accordingly, one now looks back at permission 601 to see whether the development there contemplated is a practical possibility having regard to what has been done or may be done under number 756. I have no doubt in my mind that it is quite clear that the development contemplated by number 601 cannot now be carried out. As I endeavoured to explain earlier, the development contemplated by number 601 was the building of a bungalow, but the building of a bungalow in a particular site as ancillary to the smallholding which was to occupy the rest of the site. It is not now possible to build a bungalow on number 601 subject to those terms, and it does not follow in the least that if the local planning authority had been asked to give permission for a bungalow on site A that they would have done so if they had known that the remainder of the site was not to be made available for the smallholding which was clearly in contemplation all the way through. I find that if one looks at the development sanctioned by number 601 and asks oneself whether that can now be carried out having

regard to the activities pursuant to permission number 756, it seems to me the answer must be no, and I think that if that is the position the effect is that permission 601 is no longer capable of being implemented. Whether or not it should be regarded as in suspense and possibly available at a future time should the development carried out pursuant to number 756 be removed is something which I do not feel compelled to express an opinion about. What I am clear about is that it is not now possible to implement number 601 for the reasons I have endeavoured to give. … [p 288] My views on this matter are not based on any election on the part of Mr. Pilkington; they are not based on any abandonment of an earlier permission, and they do not in any way depend on the fact that the building on site A may have been a breach of the condition in number 756. I base my decision on the physical impossibility of carrying out that which was authorised in number 601.” Conclusions The following conclusions may be derived from Pilkington: • Multiple DAs may be made in relation to the same land and as a result multiple development consents may apply to the same land. • Where multiple development consents apply to the same land, all of these consents may operate unless it is not possible to carry out development permitted by one consent, due to development already carried out pursuant to another consent. Thus, where there are multiple consents applying to land, they all operate unless the implementation of one consent is no longer a practical possibility due to development already undertaken pursuant to another consent.

• However, the status of the consent no longer capable of being implemented is unclear. It may be held in suspense and thus available for use at some time in the future or fully spent.

¶54-140 Liverpool City Council v Home Units Australia Pty Ltd In Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 (Liverpool v Home Units), Hutley JA in the Supreme Court of NSW held that a person can have two development consents in relation to the same development. Hutley JA held at p 70: “There is nothing to prevent a person having two authorities to do the one act, and, for his own protection, he may find it expedient to seek and add a second authority to the one still current.” Thus, from Liverpool v Home Units, multiple development consents may be held in relation to the same development, in addition to multiple consents applying to the same land but for different development proposals.

¶54-150 Drummoyne Municipal Council v Page Similarly, in Drummoyne Municipal Council v Page (1973) 2 NSWLR 566 (Drummoyne v Page), in the NSW Court of Appeal, Jacobs P held at p 574: “There is nothing to prevent a responsible authority from granting a fresh consent to development, even if a current development consent exists.” The other two appellate judges (Hardie JA and Hutley JA) did not express a view on this question.

¶54-160 Drummoyne Municipal Council v Lebnan One appeal to the High Court, in Drummoyne Municipal Council v Lebnan [1974] HCA 34, Gibbs J (with whom Barwick CJ, Stephen J, Mason J and on this aspect Menzies J agreed) implicitly accepted the

correctness of the view of Jacobs P in the NSW Court of Appeal at paragraph [7]. A development consent that has been commenced must not be undertaken in breach of any condition of that consent, otherwise civil and criminal enforcement is available under s 123 and s 125 of the EPA Act. As such this is an application of the maxim qui sentit commodum sentire debet et onus or “he who takes the benefit must accept it with the burdens that go with it”. Where a person has the benefits of a development consent being the landowner or a person authorised by the landowner, that person is bound to comply with the consent and its conditions, although (as previously indicated), once commenced, there is no obligation to fully implement a consent provided that in undertaking part of the development authorised by the consent there has been no breach of a condition of the consent.

¶54-170 Rao v Canterbury City Council This position was outlined in Rao v Canterbury City Council [2000] NSWCCA 471 (Rao v Canterbury) in the NSW Court of Criminal Appeal where Mason P (with whom Dowd J agreed) held at paragraphs [20]–[21] as follows: “20 At trial a slightly different point was taken to the one now advanced. It was accepted that there was a development consent and that it was in force under the Act. (A similar concession is made on appeal.) The submission at trial was that the development which was the subject of that consent was still to be carried out. Accordingly, where the summons charged that the consent had been implemented contrary to the specified conditions then it was raising an offence not known to the law because, the consent not having been completed, it could not be said to be implemented contrary to the conditions of the consent. The submission was rejected. Her Honour pointed out that s 76(2) speaks of development that ‘is carried out’. Although the work consented to had not been completely finalised, it was in train and the charge alleged departure from conditions regulating the development work itself.

21 The submission is repeated on appeal. In my view her Honour was perfectly correct. Some conditions are capable of breach in the course of implementation of the consent. Stipulations that specific trees are to be retained or protected by ‘a suitable barrier erected prior to and maintained during building operations’ are clearly such as of their nature are capable of infraction during development work. Likewise with a prohibition against cutting down existing trees.” Austin J held at paragraph [75]: “75 Obviously the directions and prohibitions in a case such as the present one are not absolute and unqualified. Since the applicant for development consent is not obliged to undertake the development once consent is granted, there is no absolute obligation to comply with the conditions of the consent. But in my view, once the development commences, the obligation to comply with the conditions becomes unqualified. That being so, the conditions are properly described as directions and prohibitions for the purposes of s 125(1).” While Austin J correctly noted that, once granted a development consent is not required to be implemented, he did not address the circumstances where: • a consent is in the process of implementation, but has not as yet been completely implemented, or • a consent has only partially been implemented and there is no current intention by the owner to complete the development. Instead, he suggested that, once a development commences, the obligation to comply with the conditions becomes unqualified, although Austin J was not considering a scenario of only partial implementation. However, Mason P more correctly limited that view in holding that a breach occurs (and hence, the holder of a consent is bound) when that part of the development which is being carried out, is being carried out contrary to a condition of the consent. Thus, the person implementing a consent is bound by any conditions of the consent relating to or governing that component of the development being

implemented.

¶54-180 Mandalong Progress Inc v Minister for Planning In the NSWLEC, in Mandalong Progress Inc v Minister for Planning [2003] NSWLEC 142 (Mandalong), Bignold J heard an application seeking a declaration and injunctive relief against the Director-General of the Department of Planning in relation to a condition of a development consent granted by the Minister for Planning to a coal company for the Mandalong Valley Mine, an underground coal mine. Condition 67 of the development consent granted by the Minister required the applicant to participate in, and contribute funds to, a flood study to be undertaken by the Director-General of the Department of Planning. The aim of the study was to determine the 1 in 100 year flood level and to define existing and potential flood hazards as a result of mining. The study undertaken did not meet the requirements of condition 67 of the development consent. It was argued that a breach of condition 67 did not give rise to a justifiable and enforceable claim. Part of that submission relates to issues of jurisdiction of the court not relevant to the current discussion. But in relation to the question of whether a development consent can impose obligations on a third party, Bignold J held at paragraphs [87]–[90], [95] and [98]–[99] as follows: “87 The first reason advanced by the Respondents raises the question of the legitimacy of the scope of conditions that were imposed by the Minister upon the grant of the development consent, and in particular asserts that it is beyond the competence of the consent authority to impose as conditions of development consent obligations requiring a third party to the development consent to do something etc in connection with the carrying out of the development. 88 In my judgment, this submission unintentionally distorts the true effect of the functions imposed on the Director-General by Condition 67, or at the very least unjustifiably assigns to the Director-General the dubious status of being a ‘third party’ to the development consent.

89 The true and obvious effect of Condition 67 is that it imposes a function on the Director-General in her capacity as the Department Head of the Minister’s Department: see Div 2 of Part 2 of the EP&A Act. Section 15 refers to ‘the functions’ conferred or imposed on the Director-General ‘by or under this or any other Act’ and that expression is wide enough (‘functions’ is defined by s 4(1) to include ‘powers, authorities and duties’) to comprehend a function imposed by a condition of development consent granted by the Minister: cf Austin J’s analysis in Rao of the similar statutory expression in the EP&A Act, s 125. 90 Moreover, by s 13(2) the Director-General in the exercise of any function conferred upon her ‘by or under this Act’ is ‘subject to the control and direction of the Minister’ (subject to an immaterial ‘exception’ in respect of the content of a recommendation or report made to the Minister). Where, as in the present case, the Minister has relevantly granted the development consent, it is obvious that any function imposed on the Director-General by conditions of that development consent (as will be shown, there are multiple functions so imposed by numerous conditions of the development consent) is imposed by the Minister, as the relevant consent authority, that she is created his authorised agent to administer the relevant conditions of consent as part and parcel of the overall implementation and supervision of the development consent. … 95 Once the true nature and effect of the Director-General’s functions under the conditions of the development consent are appreciated (in the manner that I have earlier analysed them) the Respondents’ argument based upon the lack of competence in terms of the EP&A Act, s 80A for a condition of development consent to ‘impose obligations on a third party to the development consent’ is at once seen to be legally and factually irrelevant to the decision called for in the present case. The Director-General’s functions under the conditions of the development consent are clearly undertaken on behalf of the Minister who granted the development consent for the legitimate purpose of properly

supervising and implementing the conditions of development consent imposed by the Minister. … 98 In view of my conclusion as to the true nature and effect of the functions imposed upon the Director-General by the conditions of the development consent (including Condition 67) no serious question truly arises as to whether condition 67 in particular exceeds the scope and ambit of a condition competently imposed pursuant to s 80A of the EP&A Act (or its pre 1998 counterparts namely ss 91, 91AA and 91AB that were applicable to the development consent granted by the Minister pursuant to s 101(8) and (11) as continued in force by the savings and transitional provisions contained in the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998). 99 Clearly, the conditions of the development consent imposing functions on the Director-General in the proper administration, supervision and implementation of the conditions imposed by the Minister in granting the development consent were within the competence of the power for the Minister to impose conditions on the grant of development consent. Accordingly, no occasion here arises for reading down pursuant to the Interpretation Act 1987, s 32 the conditions imposing functions on the Director-General (and condition 67 in particular) so that they only operate within the ambit of the relevant power, as was submitted on behalf of the Respondents.” In Mandalong, Bignold J appeared to assume that it was beyond power to impose a condition of a development consent imposing obligations on a third party. But he held that the Director-General of the Department of Planning was not, in reality, a “third party” in the context of a consent issued by the Minister. He held that it was lawful for a consent authority to impose a condition of consent conferring an obligation on an arm of the consent authority’s administration in relation to the proper administration, supervision and implementation of a condition of consent. Further, limitations on a development consent arise (from the earlier

discussion) in relation to what is a DA and when is one required. These limitations are as follows: • A development consent can only be issued which approves “development”, as defined in s 4(1) of the EPA Act. A development consent cannot be granted which purports to approve something which is not “development” (as defined), such as an amendment to a condition of a development consent (Gordon & Valich Pty Ltd v City of Sydney [2007] NSWLEC 780 (Gordon & Valich)) or an approval in principle, or approval to a master plan (Brooklyn Resort Pty Ltd v Hornsby Shire Council [1999] NSWLEC 214 (Brooklyn Resort v Hornsby)). • A development consent may be granted for anything which constitutes a “development” (as defined in s 4(1)), including the erection of part of a building or part of a structure (see definition of “building” in s 4(1)), and the making of alterations or enlargement or extension of a building (see s 4(2)(b) of EPA Act). • A development consent may be granted for development which depends upon another DA which is, as yet, unapproved (Seyffer v Shoalhaven City Council [2006] NSWLEC 564 (Seyffer v Shoalhaven)). • A development consent may be granted for a stand-alone development not dependent upon pre-existing development. A development consent may be granted for development which is dependent upon pre-existing development or a pre-existing development consent in force, but not yet implemented. A development consent may be granted to change or alter parts of an existing development or parts of a development subject to a development consent which is in force, but has not been implemented (Waverley Council v Hairis Architects [2002] NSWLEC 180 (Waverley v Hairis Architects)). Consideration will now be given to what constitutes a consent and how a decision of the consent authority is processed.

¶54-190 Ex-parte Wright; re Concord Municipal Council In Ex-parte Wright; re Concord Municipal Council (1925) 7 LGR 79 (Ex parte Wright), the Supreme Court of NSW heard an application for mandamus directing the Council to require its engineer to undertake inspections required to complete a subdivision. The Council had resolved to approve a subdivision application subject to some conditions and the applicant had been advised of the approval. The applicant had intended to use the subdivided lots for shops. No approval had been granted for such a use, and in fact an application for such a use had been refused by Council. Subsequent to the approval of the subdivision, the subject land was included in a residential district proclamation under which the erection of shops on the land was prohibited. The approved subdivision resulted in lots of a size which did not meet Council’s requirements for the erection of residences. Council purported then to rescind its approval for the subdivision. Street CJ (with whom James J and Campbell J agreed) held at p 82 as follows: “I think that the purported rescission of that resolution after permission had been given to him to subdivide the land in the way proposed, and after he had incurred expenditure in complying with the requirements of the Council, as the terms on which permission was given, was ineffective, and I think that Mr Hammond was right in admitting that the applicant had a legal right to subdivide the land in accordance with the plans submitted to the Council and approved by it.” While Ex parte Wright relates to a subdivision approval and not a development consent, as the case dates prior to the introduction of planning control, it is equally applicable to development consents in indicating that a development consent, once formally granted by a consent authority, cannot be withdrawn or rescinded. Any such rescission is ineffective and the holder of the consent is entitled to undertake the development so approved.

¶54-200 Ex parte Forssberg; in re Warringah Shire Council In Ex parte Forssberg; in re Warringah Shire Council (1927) 8 LGR 74 (Ex parte Forssberg), the Supreme Court of NSW heard an application for mandamus to direct Council to affix its seal to a plan of subdivision. An application had been lodged to subdivide land at Palm Beach. At the time, s 331 of the Local Government Act 1919 (NSW) (LG Act 1919) provided that a Council may approve a subdivision application, or approve it subject to conditions or refuse it, and that Council shall notify the applicant of its decision. The Ordinances (under the LG Act 1919) required the applicant to submit two copies of the plans and specifications, one copy of which was to be returned to the applicant, and if approved, with the Council’s seal affixed to it. The Ordinances also specified the procedure for such applications including the submission of an “as built” survey to be stamped by Council prior to submission to the Registrar General. Council had resolved at a meeting to approve the application, subject to some minor amendments. However, Council failed to formally notify the applicant of the resolution. The Council did, however, write to the applicant to advise them of the minor amendments required and also advised them that there was no need to submit further amended plans until such time as the applicant required the Council seal to be affixed to the “as built” survey. The Council’s letter also returned one set of the plans and specifications without the seal affixed. The applicant then proceeded to construct the roads for the subdivision. The Council wrote to the applicant directing a change to the road alignment previously agreed to. The applicant resubmitted the plan for the Council to affix its seal to but the Council replied, advising the applicant that the Council had not approved the plan of subdivision. The applicant contended that an approval had been granted and the subdivision had been carried out and they were entitled to have the Council’s seal affixed. Council argued it was not bound by the original plan as the notification was not made under seal. Ferguson J (with

whom Campbell J and Davidson J agreed) held at p 78: “The Council further contends, however, that no notification of approval has been given to the applicant at all. It is not denied that the Council did by resolution approve of the plan, but it is denied that approval was communicated to the applicants. Now it is true that there was no formal statement in terms that the Council had passed the resolution, but I think it is idle to contend that the shire clerk’s letter of 30th August, 1923, read in conjunction with the letter to which it was an answer, was not a notification of the Council’s decision. It was intended to be acted upon as such and was so acted upon both by the applicants and by the Council itself. No other approval was ever asked for or given in respect of No 2 Subdivision, and the intimation that there was no necessity to submit plans until it was desired to have the seal affixed to the ‘deposited plan’ is meaningless unless it means that the applicants were at liberty to proceed with the work of construction and survey on which the deposited plan was to be based. It is not competent for the Council after giving its approval of the plan, and after the work has been carried out on the faith of that approval to require the applicants to alter it. If this could be done in respect of part of a single road, the applicant might equally be required to recast the whole plan of subdivision, and incur the expense of a fresh survey and of reconstructing the whole of the roads and drainage works.” Conclusions While the decision in Ex parte Forssberg relates to a subdivision approval, it is considered that similar principles apply to a development consent and indicates the following conclusions: • Where a development consent is granted by a consent authority and notified to the applicant, the applicant is entitled to act upon the consent, even if there is a formal defect in the notification. • Where a consent authority has granted a development consent and notified the applicant, the consent authority cannot seek to

alter the terms of that consent once granted.

¶54-210 Little v Fairfield Municipal Council In Little v Fairfield Municipal Council (1962) 8 LGR 64 (Little), Richardson J in the Supreme Court of NSW heard an application for mandamus seeking Council to affix its seal to a plan of subdivision. Council had approved a subdivision application and subsequently sought to add a further condition requiring contributions for garden and recreation space, kerbing and guttering. Richardson J held at p 67 as follows (footnotes excluded): “The principle of law to be applied in this case is succinctly set out in Ex parte Forssberg; In re Council of Shire of Warringah in which the Full Court held that a council cannot disavow approval given and notified. … In my opinion, the principle in Forssberg’s Case did not rest upon the matter of expense involved in preparing a new plan and specifications or inconvenience in undertaking additional constructional work, but upon the principle that a council, having accepted a plan of subdivision and communicated that acceptance, cannot afterwards reject it.” The decision in Little clarifies the decision in Ex parte Forssberg by clearly indicating that the conclusion in that case rested on the principle that a consent authority, having approved a proposal and notified that approval, cannot seek to afterwards reverse it. The issue of the extent of expense or inconvenience to the applicant is not a relevant issue.

¶54-220 Shanahan v Strathfield Municipal Council In Shanahan v Strathfield Municipal Council (1973) 2 NSWLR 740 (Shanahan), Street CJ in Eq heard an application for a declaration that the applicant had been granted the necessary building approvals for the erection of a building. A building application (BA) was made to the council. The Council resolved to approve the application, however, before the conclusion of the meeting, a notice of motion to rescind the resolution was given. At a subsequent meeting, the rescission motion

was discussed and lost but later the Council resolved to refer the BA to external consultants for advice. No formal notification was given of any of the Council resolutions to the applicants. The question before the court was whether an approval had been granted. Street CJ in Eq held at p 745 as follows: “There is a series of decisions in the courts of this State indicating that the communication by the council of its approval will result in the successful applicant being placed in a position in which he is entitled, as against the council, to continue to enjoy that approval, notwithstanding subsequent attempts by the council to revoke or vary it. It may be open to argument upon this line of authority whether it is necessary in addition that the successful applicant should have acted on the faith of the approval after formal communication to him, but I need not stay to consider whether this additional ingredient must also be present in order to deny to the council freedom to review its approval. It is sufficient for present purposes for me to accept that the authorities establish that formal communication is a necessary ingredient before the council’s hands are tied.” Street CJ in Eq then referred to a number of authorities including Ex parte Renouf (1924) SR (NSW) 463 as well as Ex parte Wright, Ex parte Forssberg and Little (all previously discussed) and held at p 744 as follows: “Running throughout this line of cases is the requirement of a decision, and a communication of that decision, by a council before approval, such as is here under consideration, passes beyond the subsequent control of the council, whether by way of rescission or alteration, and equally running throughout that line of cases is the necessity for the communication of the approval to have some formal character as being authenticated on behalf of the council. Admittedly it need not be under the seal of the council. But clearly enough it must be more than that which took place in the present case, namely a mere informal ascertainment by the second plaintiff, an alderman of the council, of what had taken place in the council meeting during his absence. I consider, accordingly, that the decision by this council that the building

approval be granted had not gone beyond the recall of the council, in that it had not been the subject of notice to the applicants so as to tie the council’s hands.” Conclusions The following conclusions may be derived from Shanahan: • Where a consent authority has communicated its decision to an applicant to grant development consent, the applicant is entitled to act upon the consent, and the consent authority cannot withdraw it. The key ingredient in tying the consent authority’s hands is the formal communication of the consent to the applicant. • There are two elements in the granting of a consent, namely: (1) a decision by the consent authority, and (2) its formal communication to the applicants, both of which are required. • Prior to the formal communication of a consent to the applicant, the decision to grant consent can be recalled and rescinded or altered by the consent authority.

¶54-230 Townsend v Evans Shire Council In Townsend v Evans Shire Council [2000] NSWLEC 163 (Townsend), Lloyd J in the NSWLEC heard a challenge to the validity of a development consent for a subdivision at Evans Plains. One of the issues in the proceedings was whether a council resolution to approve a subdivision constituted a development consent. The Council resolved at a meeting to grant consent to a DA for subdivision. The DA applicants were present at the meeting and were told by the Mayor “Well you have got your concessional lot ...”. Council then later rescinded its resolution to grant consent prior to any notice of determination being given.

Lloyd J held at paragraphs [17]–[21] as follows: “17 Section 80(1) of the EP&A Act is as follows: ‘(1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditional or subject to condition, or (b) refusing consent to the application.’ 18 Section 81(1) (a) of the Act provides that the consent authority must, in accordance with the regulations, notify its determination of a development application to the applicant. Clause 68A of the Regulation prescribes the form of the notice of determination of a development application and further provides that the date on which the development application was determined and the date from which the development consent operates (if development consent is granted) must be endorsed on the notice. Clause 69(1) of the Regulation provides that the notice of determination must be sent to the applicant within fourteen (14) days after the date of determination of the development application. (In Mr Robertson’s submission the council is in breach of clause 69(1) because it failed to send to the applicants the notice of determination within fourteen days or at all). Sub-clause (2) of clause 69 provides that failure to send a notice within fourteen-day period does not affect the validity of the notice or the development consent (if any) to which it relates. As Mr Clay pointed out, however, sub-clause (2) of clause 69 merely validates a late notice. 19 The provisions of the Act and Regulation to which I have referred show that there is no effective development consent until a formal notice of determination is given to the applicant. It is necessary that the communication of the consent have some formal character as being authenticated on behalf of the council (Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744, Panagopoulos v Willoughby City Council (1992) 78

LGERA 270 at 273). In Shanahan, Street CJ in Eq held (at 744) that a mere informal ascertainment of a member the council of what had taken place in the council was not notice to the applicants so as to tie the council hands. In the present case it cannot be said, in my opinion, that the statement made by the Mayor to the applicants following the meeting was of such formal character as to tie the council hands. 20 In ex parte Renouf (1924) 24 SR (NSW) 463, a local government council rescinded a resolution approving an application for the subdivision of land. Street ACJ said at 466– 467: ‘Before a decision on an application has been communicated to the applicant, and therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to. Without alleging anything in the nature of want of good faith, circumstances will readily suggest themselves in which in the interests of good municipal government it would be proper and desirable that an application should be reconsidered, and it would be unreasonable that the council should not have the power of reconsideration. I do not overlook the argument that applications of this kind are not matters of mere domestic or internal concern, but that, in such cases, the council is exercising a statutory power of interfering with individuals in the exercise of their rights of ownership over land, and that no power of reconsideration is conferred in terms by the Act; but I do not think that this concludes the matter. I think, on the contrary, that as long as the council acts in good faith it has an inherent power to reconsider its determination before notifying its decision to an applicant, and the Legislature seems to have contemplated this, and to have provided against undue delay, by enacting in s 341 that if a decision is not given within 40 days an applicant may appeal to a district court judge, whose decision shall be deemed to be the final decision of the council. It must arrive at a decision within 40 days after an application is made, but

a decision is not effective until the applicant is notified of it, and, as long as the council keeps within the period of 40 days mentioned in s 341, I see nothing in the language of the Act to prevent it from reconsidering an uncommunicated determination, which may have been ill-considered or too hastily formed.’ 21 I see no reason why the above-mentioned judgement of Street ACJ should not be as valid today as it was then. Moreover, section 372 of the Local Government Act 1993 expressly allows the rescinding or altering of resolutions of a council. In [sic.] present case the rescission motion was lodged with the council within 14 days of the resolution to grant consent to Mr and Mrs Townsend’s application. That is to say, the rescission motion was lodged before the council was required by clause 69(1) of the Regulation to issue a notice of determination. In my opinion the council was not acting unlawfully in failing to issue a notice of determination pending the outcome of the rescission motion, particularly since the determination of the development application is not effective until formally communicated to the applicants. Moreover, sub-clause (2) of clause 69 of the Regulation recognises that there may be circumstances when the notice of determination may not be issued within 14 days. It follows that the resolution to rescind the first consent is valid.” Conclusions Townsend provides that the previous decisions of Shanahan and Renouf are applicable to development consents under the EPA Act. Further it notes: • An oral statement by the Mayor at a meeting is not a formal communication of the decision of the consent authority, such as would prevent the consent authority from reconsidering and rescinding the decision. • Where notice of a rescission motion is properly given to a resolution of a consent authority to approve a DA, there is no breach of law if the consent authority fails to issue a notice of

determination until after the rescission motion is dealt with.

¶54-240 Hopkins v Tweed Shire Council In Hopkins v Tweed Shire Council [2001] NSWLEC 75 (Hopkins), Talbot J in the NSWLEC heard a challenge to the validity of a development consent. One of the issues raised was a difference between how the development was characterised in the resolution of the consent authority and in the notice of determination communicating the decision of the consent authority. The issue in this case was that in the Council’s resolution the DA was described as being for an extractive industry, which was prohibited in the zone, while the notice of determination described it as earthworks, which was permissible in the zone. Talbot J held at paragraphs [24]–[27] as follows: “24 The provisions of the EP&A Act in relation to notification, therefore, demonstrate that a development consent is not effective until a notice of determination is given in accordance with the Act (Townsend & Anor v Evans Shire Council & Ors [2000] NSWLEC 163). 25 In this case there has been a determination by the council to grant consent to an ‘extractive industry’. The council then carried out the process of notification as required under s 81. Each notice under s 81 refers to the council’s determination to grant consent to ‘earthworks’. 26 The Court agrees with the applicants that the council’s decision was the resolution represented in written form as the minute. Thus, council purported to grant consent to an ‘extractive industry’, a form of development prohibited within the zone under the LEP. It is illogical to attempt to rationalise the decision of the council as an intention to grant consent to earthworks when it specifically did otherwise in terms. 27 The notice, as a notification of the council’s determination, is not in accordance with s 81 of the EP&A Act. It does not reflect the determination of the council. As the consent only operates

and becomes effective from, in this case, 28 days after the date endorsed on the notification which is to be in accordance with s 81, in the opinion of the Court, no effective consent is in operation as there has been a failure to comply with the provisions of the EP&A Act. There is no date from which the consent can be said to operate.” Hopkins identifies that, while a development is not effective until it has been formally communicated to the applicant, the process of communication involves simply the transmission of what has been resolved. If a notification is given in terms substantially different to the actual decision as resolved by the consent authority, there is no effective consent as what was notified did not reflect the decision.

¶54-250 Pselletes v Randwick City Council In Pselletes v Randwick City Council [2009] NSWCA 262 (Pselletes) the NSW Court of Appeal considered further the distinction between the decision of the consent authority for a DA and the notice of determination communicating that decision to the applicant. Pselletes involved proceedings by the applicant for a DA against an order by Council to demolish a partially constructed balcony. The applicant lodged a DA for alterations and additions to a dwelling at Little Bay. Part of the DA proposed a first floor balcony. A neighbour objected to the balcony and the applicant withdrew the part of the DA that related to the balcony. The Council issued a notice of determination which approved the balcony. The applicant commenced to construct the balcony and the Council issued an order in relation to which the applicant appealed to the Court. Tobias JA (with whom Ipp JA and Sackville AJA agreed) held at paragraphs [44]–[45] and [47]–[48] as follows: “44 However, in my view there are authorities to the contrary of the proposition advanced by the appellants in Stebbins, which establish that the development consent is the actual determination of the relevant consent authority under s 80(1) of the EPA Act which should be regarded as quite distinct from the notification of that determination under s 81. Thus in Hopkins v

Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406 at 410 [26], Talbot J accepted the submission that the council’s decision (granting development consent) was its resolution represented in written form by a council minute. Where, however, the s 81 notice does not correctly reflect the council’s decision as so represented, then that notice is invalid as a consequence whereof the consent does not become operative for the purpose of s 83(1) of the EPA Act. 45 In this latter respect Hopkins was cited with approval by Hodgson JA, with whom Mason P and myself relevantly agreed, in Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 at 235 [13]. Furthermore, in Elarosa Investments Pty Ltd v South Sydney City Council (1994) 83 LGERA 211 at 214 Stein J, then a judge of the Land and Environment Court, agreed with the analysis of the relevant statutory provisions by Bignold J in Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 273 where his Honour said: ‘In my opinion the combined effect of sections 91, 92 and 93 of the Environmental Planning and Assessment Act [the then equivalents of the current s 80, 81 and 83] in respect of the grant of development consent, is that the determination of the consent authority though made under s 91 when the consent authority passes the relevant resolution, is not effective until communicated in a notice given under s 92 bearing the endorsement of the ‘date of consent’ under s 93.’ … 47 Although dealing with a different issue, the authorities to which I have referred in the preceding paragraphs make it clear that as a matter of statutory construction it was the determination of the consent authority under s 80(1)(a) to grant consent to a development application which constitutes the development consent and that the notice of determination issued pursuant to s 81(1) does not itself constitute that consent but is merely evidence of it. The juxtaposition, as well as the text of each of

these provisions, make this clear as a matter of statutory interpretation. 48 Section 81(1) refers to the consent authority notifying its determination of a development application, this being a reference back to the authority’s determination, if such it be, to grant consent pursuant to s 80(1)(a). The latter precedes the former and it is the latter that constitutes the terms of the authority’s consent to the relevant application. The notice of determination is no substitute for that determination although an inconsistency between the terms of the authority’s determination under s 80(1)(a) and those of the notification under s 81(1) may have legal consequences such as those referred to in Hopkins.” Conclusions Pselletes approved the conclusions in Hopkins and is authority for the following conclusions: • A notice of determination of a DA which does not correctly reflect the decision of the consent authority is invalid and thus the consent does not become operative. • It is the determination of the consent authority under s 80(1)(a) to grant consent that is the development consent, and the notice of determination under s 81(1) does not constitute the consent, but is merely evidence of the consent and is no substitute for the determination.

¶54-260 Correspondence from or conduct by the consent authority A further issue is whether certain correspondence from or conduct by the consent authority constitutes a development consent or not. A number of earlier cases addressed this issue at a time when the formal requirements regarding development applicants and their consideration were scant. The likelihood of such issues arising under the EPA Act is reduced because of the formal requirements for DAs and their processing. Further, the principles derived from these earlier

cases as to what conduct constitutes a consent are the mirror image of the requirements for finality and certainty for a valid consent. This ground is the approach generally taken today to establish that the development consent is invalid, rather than the earlier approach, namely that it is not a development consent at all. However, the earlier cases are instructive in identifying the qualities required in a development consent.

¶54-270 Rocca v Ryde Municipal Council In Rocca v Ryde Municipal Council (1961) 7 LGRA 1 (Rocca), Sugerman J in the Land and Valuation Court of NSW heard an appeal by stated case by the owners of land at Ryde against the refusal by Council of a BA. The owner had lodged a DA under the County of Cumberland Planning Scheme Ordinance (County Scheme) for approval to erect four shops and a service station, and later added professional rooms to the application, but no plans or specific details were provided of the professional rooms, as required under the County Scheme. Council wrote to the applicant granting consent to the service station and shops. Council advised, in relation to the professional rooms that it was approved, with Council to consider further the desirability of setting back the professional chambers by the imposition of a building line, subject to conditions relating to the service station and the professional rooms. The applicant’s architect submitted BA plans thereafter for a threestorey block of professional rooms. Council advised the applicant that this amended plan was refused. The applicant claimed it had consent for the erection of professional chambers and the Council could not refuse a BA for reasons which were properly considered at the DA stage. The applicant contended that the original consent gave approval to the professional rooms. The applicant appealed and the matter was referred to the Court for determination of the disputed points of law. The issue was whether the original development consent approved the erection of a building as proposed in the BA plans. Sugerman J held the Council’s letter did not constitute a development

consent for the professional rooms. Sugerman J held at p 8–9 as follows: “In my opinion, the consent to the erection of a building intended and required by the County of Cumberland Planning Scheme Ordinance is a consent to the erection of a proposed building as specified with sufficient certainty of description for the purpose in hand by the applicant for consent, and not a consent to the erection of any building which may fall within a class of building designated by a class description. … It may be conceded, as it has been contended, that if a consent to the erection of a sufficiently specified building has been granted, its granting is not invalidated by a failure on the part of the responsible authority to do all that is required of it by cl 27 and other provisions mentioned (e.g., taking certain matters into consideration, consultation with the Cumberland County Council), or by an irregularity or informality in following the procedure prescribed by cl 41. It may be also conceded that sufficiency of a description within the meaning and for the purpose of cl 41(1)(b) is a matter for the responsible authority. But such concessions do not touch the [p 9] quality or the form of consent proper to be granted or acted upon, namely consent to the erection of some specified building as proposed. That provisions of the various clauses may be ignored by the responsible authority without affecting the validity of a consent which itself is of this quality does not deprive those provisions of significance as indications of what is intended by the Ordinance as the proper subject matter of consideration by the responsible authority and the proper subject matter of a consent pursuant to such consideration. It is clear in my opinion, whether these provisions be read in their amended or unamended form, that this subject matter is a specified building envisaged as that in respect of which consent is sought by the applicant. Indeed it would be impossible for the responsible authority to perform, in

accordance with the requirements of the Ordinance, the duties and exercise the discretion imposed and conferred upon it unless the subject matter of its consideration was a sufficiently specified building. The present case is not one of such a mere informality or irregularity as I have mentioned. The defect here goes to the quality of what is relied upon as the giving of a consent and to its conformity with the character of what is intended, authorised, and required as a ‘consent’ in terms of the Ordinance. It is moreover, a defect which is apparent on the face of the document relied upon as a consent, whether read alone or with what is relied upon as having constituted an application for consent. The sufficiency of a description is, of course, itself a variable matter, depending very much upon the circumstances of the case. But I find it impossible to say that such expressions as ‘block of professional chambers’ or ‘professional block’, or ‘professional rooms’ or ‘professional chambers’ are in themselves a sufficient description to enable the responsible authority to perform the duties required of it by the Ordinance in considering the application; and, in the end, sufficiency in that sense must, I think, be the test of a sufficiency of a description.” These principles were cited with approval by Hardie J in AttorneyGeneral v Bristva Pty Ltd (1964) 10 LGRA 348 at p 354–355, although in that case, it was held the Council’s decision while in “brief and general language”, was a sufficient description of the proposal to constitute a development consent. Conclusions The following conclusions may be derived from Rocca: • For a development consent to be granted, the proposed development must be specified with sufficient certainty of description, such that the decision of the consent authority can attract the quality or form of a consent capable of being granted and acted upon. • The test of sufficiency of description of a proposed development

upon which a development consent may be founded, is variable and depends on the circumstance of a particular case, but does not extend to a class of building designated by a class description, eg professional rooms. • An absence of a sufficient description of a proposed development makes it impossible for a consent authority to perform its duties under s 79C of considering the heads of consideration.

¶54-280 Holmes v Ryde Municipal Council In Holmes v Ryde Municipal Council (1969) 90 WN (Pt 1) (NSW) 290 (Holmes), Else-Mitchell J in the Equity Division of the Supreme Court of NSW held at p 293–294 as follows (footnotes excluded): “There remains for consideration the question whether there has in fact been a grant of consent under the County of Cumberland Planning Scheme Ordinance by reason of the correspondence which has taken place in each matter between the relevant plaintiff, his architect or solicitor, and the defendant council. Upon this matter counsel referred to various decisions in which the requirements of a valid development consent have been discussed, namely Rocca v Ryde Municipal Council, AttorneyGeneral v Bristva Pty Ltd, and Gange v Sullivan. It seems clear as a result of the discussion in these cases that it is a question of fact whether a particular letter or document constitutes a development consent for the purposes of a planning Ordinance, and no doubt there are certain basic matters which must be incorporated in a letter or other document before it will be adequate as a consent. Moreover, the terms of the relevant document itself may show that the responsible authority has reserved a discretion in wide enough terms to militate against its being regarded as anything more than an expression [p 294] of opinion as distinct from a consent of an unconditional nature. In each instance prior to a proper development application or building application under Pt XI being lodged with the defendant

council letters were written by its town clerk to the plaintiffs’ representative stating that the site in question was considered to be a ‘suitable one for villa home development’, but in two cases it was said that this was subject to compliance with certain requirements including the design of the buildings being ‘of high standard and to the satisfaction of council’ and in the third case that a building application should be submitted for consideration. Apart from the fact that none of these letters was sufficiently unequivocal to constitute a consent, because it reserved to the council a discretion to consider the application or to be satisfied with further matters of substance, the claim that there was a consent seems to me to founder upon the provisions of cl 41 of the County of Cumberland Planning Scheme Ordinance, which requires a proper development application conforming with sub-cl (1) or a building application under Pt XI in any instance where ‘the matter to which it relates requires the consent of the responsible authority under this Ordinance’ (cl 41(2)). There was in no case a proper development application, and even if the building application should be treated as one under cl 41(2) there was no consent of any sort to those applications so that after forty days they must, as development applications, be deemed to have been refused under cl 41(4). It seems to me not to matter that the council dealt with any of the plaintiffs upon the assumption that the proposed buildings were dwelling houses which could be erected without consent in a living area because if, as I have held, development consent was necessary in law the council’s misconception as to the construction of the Ordinance cannot operate as such a consent — at least not unless and until the building application were in fact approved (cf Randwick Municipal Council v Broten; Hornsby Shire Council v Devery).” Conclusions The following conclusions may be derived from Holmes: • It is a question of fact as to whether a particular document constitutes a development consent, and there are certain basic matters required to be incorporated before a document will be

adequate as a development consent. • However, if a document indicates the consent authority has reserved a discretion in wide terms to consider or be satisfied with further matters of substance, the document is not a development consent but rather, is nothing more than an expression of opinion. • Where a proper DA does not exist, a document issued by the consent authority cannot constitute a development consent. In effect, a development consent is responsive to a DA. Where there is no DA, there can be no development consent.

¶54-290 Loretta Constructions & Investments Pty Ltd v Gosford Shire Council In Loretta Constructions & Investments Pty Ltd v Gosford Shire Council (1972) 2 NSWLR 340 (Loretta v Gosford), Else-Mitchell J in the Supreme Court of NSW heard an application for a declaration that the Council had granted development consent for the erection of flats at East Gosford. Council had resolved to advise the applicant that “it would be prepared to grant consent to the erection of a multi-storey home unit development generally in accordance with the plans as submitted”, subject to a number of conditions, and advised the applicant accordingly. The question before the Court was whether this letter constituted a development consent. Else-Mitchell J held at p 343–344 as follows: “The requirements of a valid and effective consent under the provisions of a prescribed planning scheme have been discussed in several decisions, chiefly Rocca v Ryde Municipal Council ((1961) 79 WN (NSW) 299); Attorney-General (NSW) v Bristva Pty Ltd ((1964) 10 LGRA 348); Gange v Sullivan ((1966) 116 CLR 418); Edgar v Lane Cove Municipal Council ((1961) 7 LGRA 45) and Holmes v Ryde Municipal Council ((1969) 90 WN (Pt 1) (NSW) 290). These decisions point to the factors which may prevent a document having the qualities of a consent and, for present purposes, I should regard as important three matters which appear on the face of the letter of 21st October, 1970. First

is the futurity of language — the council ‘would be prepared to grant consent’; second is the lack of specificity in the development to which the consent would relate — ‘generally in accordance with the plans as submitted’; third is the fact that the plans did not comply with certain provisions of ord 71 of the council’s code to control the siting, design and erection of residential flat buildings. These matters appear to me sufficient to deprive the letter of those unconditional and immediate qualities which are essential to a valid consent under cl 19 of the Shire of Gosford Planning Scheme Ordinance. The letter may, accordingly, be regarded as a step towards the granting of a [p 344] final consent; it certainly was not a final expression of the council’s power to grant or refuse development consent for it envisaged further action being taken by the applicant to obtain approval, whether that step was the submission of fresh plans or the specification of amendments which would make the development acceptable.” Conclusions The following conclusions may be derived from Loretta v Gosford: • The following factors may prevent a document having the qualities of a development consent: – the futurity of the language used – the lack of specificity in the development and the subject of the alleged consent, and/or – the fact that the plans did not comply with relevant statutory requirements. • For a document to constitute a consent, it is required to have immediate and unconditional (or perhaps better phrased as specific and precise) qualities and to constitute a final expression of the consent authority’s power to grant a consent, rather than something which envisages further action being taken by the

applicant before a final approval is considered.

¶54-300 Baiada v Waste Recycling and Processing Service of NSW In Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139 (Baiada), the NSW Court of Appeal heard an appeal regarding an application to restrain the use of the Grange Avenue Waste Management Centre in Marsden Park as a putrescible solid waste depot on the grounds that it did not have the benefit of a development consent. The site was resumed by Blacktown Council for use as a tip. The Council used it as a tip from 1974, and after 1977, it was operated by the Waste Service that was ultimately under lease from the Council. The Blacktown Planning Scheme Ordinance (BPSO) (gazetted in 1968) required development consent for a tip on the land. The Waste Service had obtained a number of development consents for matters such as a weighbridge, office, truck bay, toilet block and amenities buildings, but the Council’s registers contained no record of a development consent for the tip itself. At first instance, Talbot J held that there was no general development consent ever granted to the Waste Service, but the appellants had failed to prove that Council had not granted consent to itself. Also, at first instance the issue of discretionary issues, as to whether relief should be granted if breach was established, were deferred. The case was unusual because of the way the parties approached the matter, the issue of the evidentiary burden and the conduct of the appeal. This clearly irritated the President of the Court of Appeal, Mason P, who stated at paragraphs [3]–[4]: “3 There is an air of total unreality about this case. It has the appearance of a moot set by an examiner with the philosophical interests of a medieval schoolman who has little knowledge of the rules of procedure and evidence. The pleadings reveal confusion about the location of the onus of proof. Overt acts clearly indicating approval of conduct are said not to represent or evidence development consent, because they were done alio intuit. Conversely, the very acts as between lessor and lessee

held not to constitute or establish consent from the lessor to the lessee are said nevertheless to constitute or establish consent from the lessor to itself. The ancient fiction of a ‘lost modern grant’ has been invoked. 4 At each stage of the proceedings the parties have joined issue in a manner which (despite good intentions) has impeded the Court from addressing the substantial merits of the whole dispute. I refer to the decision (at trial) to defer consideration of discretionary issues and the decision of the respondent (on appeal) to file no notice of contention in relation to the finding that the Council did not grant consent to the respondent. This Court must assume, in an adversary system, that each of those decisions was properly taken. But each decision has contributed in its own way to my feeling of substantial unease in being confined in the Court of Appeal to addressing the limited matters raised for consideration.” Mason P (with whom Sheller JA agreed and with Powell JA in dissent) held at paragraphs [37]–[43] as follows: “37 Surprisingly, there was no notice of contention raised to challenge the finding that the Council’s dealings with the respondent did not constitute or evidence development consent to the respondent. I would have thought it strongly arguable that the Lease itself constituted consent given that it expressly authorised use of the Council’s land as a tip (cf Holloway Brothers Ltd v Hill [1902] 2 Ch 612). 38 There is a body of case law discussing what constitutes consent under a prescribed scheme such as the BPSO. There is also a parallel line of authorities discussing what constitutes approval of a subdivision application. See generally Wilcox, The Law of Land Development pp 126–130, 392–397. The question whether a consent has been given is one of fact that is capable of proof by evidence of express consent by the responsible authority (or a duly authorised delegate) or by conduct evidencing consent (Brickworks Ltd v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 at 576–7 per Windeyer J. See also Pearson v

Leichhardt MC (1997) 93 LGERA 206 at 211). Several cases discuss whether particular correspondence from a council identified with sufficient specificity the development approved of, or whether the words of approval in a particular case had sufficient finality (see eg Holmes v Ryde MC (1969) 90 WN (NSW) Pt 1 290 at 293–4; Loretta Constructions and Investments Pty Ltd v Gosford SC [1972] 2 NSWLR 340 at 343–4; Foote v Browne (1977) 35 LGRA 146; Trehy and Ingold v Gosford City Council (1990) 69 LGRA 295). These cases indicate that a letter or other document may constitute consent notwithstanding the absence of formal reference to the provision giving authority to consent in the particular case. 39 Since there is clear evidence that the Council did in fact approve of the garbage depot, the clearest evidence being the resolution authorising the lease to that effect, this case does not throw up any issue of an unauthorised agent purporting to estop the consent authority by representing, contrary to the fact, that consent had been given (cf Russell v Brisbane City Council [1955] St R (Qd) 419; Maurice v Bankstown Municipal Council (1962) 8 LGRA 173). 40 Nevertheless, the present case is distinguishable because it is not possible to point to any document indicative of the Council adverting to its power to grant or withhold consent. We have not been referred to any case in which conduct clearly evincing and evidencing consent for one purpose (eg the grant of a lease) is said to constitute consent or approval for another (eg a development application). Here of course there was no direct evidence of any application for consent in terms. But equally there was no direct evidence of the absence of any such application. 41 The respondent’s letter of 28 April 1977 (para 13 above) was an application of sorts, albeit that it fell short in some respects of the formalities stipulated in clause 33 of the BPSO (para 17 above). Non-compliance with formalities touching the manner in which an application is made or dealt with or in which a consent is recorded does not itself necessarily invalidate a consent. Indeed, proof that a consent has issued may enliven an obligation by the

consent authority to complete and perfect any necessary formalities (Ex parte Forssberg; In re Warringah Shire Council (1927) 27 SR (NSW) 200; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1). 42 In other contexts at least, a public authority may purport to act in reliance upon one source of authority and thereby satisfy the requirements of an additional or alternative source of authority (Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85–6). Of course the present context is slightly different in that there is said to be no direct evidence of the Council intending to grant general consent for the purposes of the BPSO. In Holroyd Municipal Council v Rogers (1969) 17 LGRA 388, the issue by council of refreshment room licences under Ordinance 69 was held not to operate as a consent to the use of the land under the County of Cumberland Planning Scheme Ordinance. However, this decision turned upon grounds other than the contention that an act done by council with one purpose could not serve the dual purpose of constituting planning consent (see at 392). 43 This said, the point has not been debated in the Court of Appeal. The finding that the appellants established that no relevant consent had been granted to the respondent stands unchallenged.” Mason P then addressed the issue of how the appellant could prove a negative, namely that there was no consent. He held at paragraphs [53]–[55] and paragraph [57]: “53 It was submitted that there was lacking the type of evidence referred to by Waddell J in Jones v Sutherland SC (1978) 38 LGRA 432 at 437 namely: • the calling of a person who is able to state what was the system of record-keeping at the Council during the relevant period; and • who could say that, if any consent had been granted, it would have been recorded in a particular way; and

• go on to say that he or she had searched the record and that there was no record of any consent being given to the use in question. Proving a negative: subpoena to record-keeper 54 It is common ground that the appellants bore the onus of proving the negative proposition which they tendered, namely that no relevant consent existed. This onus did not shift, despite the respondent’s assertions that consent existed in its Defence and in the letter of particulars (cf Coshott v Sakic, NSWCA, unreported, 3 September 1998). 55 Where, however, relevant facts are peculiarly in the knowledge of a defendant or where the defendant has the greater means to produce evidence relating to those facts, then provided the plaintiff establishes sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden (Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 391; Apollo Shower Screens Pty Ltd v Building and Industry Long Service Payments Corporation (1985) 1 NSWLR 561). This principle would have assisted the appellants in seeking to disprove the existence of consent granted to the respondent. However, they succeeded on this point and no notice of contention has been raised against them. … 57 … In my view Talbot J was correct to regard the registers as providing evidence of the non-existence of consents other than those recorded therein. The principle is stated in Wigmore on Evidence (Chadbourn rev) at §1633(6): ‘Since the assumption of the fulfilment of duty is the foundation of the exception, it would seem to follow that if a duty exists to record certain matters when they occur, and if no record of such matters is found, then the about them [sic.] is evidence that they did not occur; or, to put it another way, the record, taken as a whole, is evidence that the matters recorded, and those only, occurred.’”

Mason P then concluded that the appellants had met the required burden of proof that no consent had been granted by the Council to itself. He held at paragraph [60] as follows: “60 Nevertheless, in my view the appellants did establish to the requisite standard that no consent had been granted by the Council to itself. My reasons follow: (a) The registers were as probative in relation to the nonexistence of consent to the Council as they were in relation to the non-existence of the relevant consent to the respondent. That is because they purported on their face to record all development consents for the area that included the land covering the period within which consent by the Council to itself (had it been given) would have been given. The Council did not acquire the land until May 1974, ie after the first entry in the first register. Notwithstanding the submissions to the contrary of the respondent, I think it unlikely that the Council would have addressed the issue of development consent prior to acquisition of the land and independently by the negotiation with the Department of Health (para 9 above). The small gap between the last entry of the first register and the first entry in the second is probably explicable by the absence of any consents during that period. But in any event it covers a time (1979–1980) after the control of the tip had passed to the respondent and after particular consents had been granted on the application of the respondent. (b) Talbot J cited Windeyer J in Brickworks (at 577) in support of the proposition that it is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. However, this particular application of the presumption of regularity cuts both ways in the present case. True it is that the appellants bear the onus of establishing the failure to do an action (ie obtain consent) the breach whereof is punishable at law. But the same can be said about the Council’s obligations stemming from the BPSO and Ordinance 32 to record any consent in the

register. In Brickworks there was no doubt that an application for consent had been presented to Council. (c) The evidentiary groundwork was not laid for drawing the distinction that was ultimately critical to the determination of this case at trial. Indeed, it is somewhat unclear why his Honour was prepared to infer that no consent had been granted to the respondent, but was not prepared to infer that no consent was granted by the Council to itself. The same primary material is relevant to each. The appellants submitted that the Council may have assumed that it had attended to this formality or it may have believed that (in the light of the concurrence of the State Authority: cf AB 213) it was unnecessary for a consent authority to provide or record by resolution or otherwise the granting of consent to itself. Ultimately, this submission was almost entirely speculative. But so too, in my view, was the contrary submission that the Council would not have overlooked the matter. (d) This was a case where it was proper to infer that, if the respondent held a relevant consent or evidence thereof, then it would have been produced. The proceedings were civil proceedings in which the appellants established evidence from which an inference favourable to their ultimate contention was clearly capable of being drawn. The respondent had it within its means to produce evidence of consent if it had it. Its failure to do so leads to an inference that no such evidence exists (Jones at 226). In the concluding portion of his judgment (set out at para 36 above) Talbot J suggested that this principle was inapplicable because no challenge had been raised ‘at any relevant time prior to the time related to the commencement of these proceedings’. In these circumstances he was not prepared to draw any inference against the respondent for not having produced the consent. With respect to his Honour, I do not understand any basis for limiting the relevant period to that prior to the commencement of the proceedings (cf Jones v

Dunkel [1959] HCA 8; (1959) 101 CLR 298, Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389). (e) In my view the inference of lack of consent can more safely be drawn in the light of the letters of particulars from the Crown Solicitor’s office which are extracted above. Coming from the solicitor for a party in the context of providing a response to a request for particulars, the letters are properly to be read as admissions that no ‘relevant approval’ was obtained other than the approvals identified in the letter of 13 December 1997 (none of which were found to constitute an approval under the BPSO). The point is made even clearer in the letter of 9 April 1997 which stipulated that: ‘The dates on which the Blacktown Council first granted development consent are referred to in the particulars provided … in the letter dated 13 December 1996. Those particulars give the relevant alternative dates.’ Although the onus remained with the appellants, these responses had probative force (cf Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134 at 143). (f) It is true that the appellant did not call anyone to prove the system of record keeping at the Council during the relevant period. But the appellants were not obliged to do so having regard to the probative effect of the registers produced. (g) Talbot J considered that the accuracy of the register was undermined by the absence of any record relating to the development consent referred to in para (g) of the particulars provided by the Crown Solicitor’s Office on 13 December 1996 where it was stated that: ‘On 9.4.1981 … the Blacktown Council approved an amenities building on the land (DA 3481).’ I am prepared to assume that this letter provides some evidence that there was a development consent given on this

occasion. If so, the register is deficient because it contains no reference to it. However, I am not prepared to regard this omission as a sufficient basis for outweighing the probative effect of the other matters tending to prove that there was no relevant consent. I therefore find it unnecessary to address the appellants’ submission that it was unfair for an inference to be drawn based upon the omission of the register to record any dealing relating to the 1981 consent because the matter was not raised at trial. (h) To my mind, this is an area where the law should lean in favour of doing things ‘by the book’. A Council is not above the law, and should as a general proposition stand accountable for its actions. The creation of proper records evidencing the seeking and granting of consent serves several functions, including that of being the means of forcing a decision-maker to ensure due consideration of relevant issues and interests. Bearing in mind that the civil onus is involved, I see no reason why a court should hasten to draw a favourable inference in circumstances where the Council itself was shown to have been unable to produce the ultimately relevant consent.” Conclusions The following conclusions may be derived from the decision in Baiada: • The question of whether a development consent has been given is one of fact that is capable of proof by: – express conduct of the consent authority, or – conduct evidencing consent. • A letter or other document may constitute a consent, despite an absence of a formal reference to the giving of consent. Such correspondence must have a sufficient level of specificity and finality.

• The question of whether conduct clearly evincing and evidencing consent for one purpose (eg the grant of a lease) can constitute consent for another (eg the grant of a development consent) is not settled, although it is noted that in other contexts an alternative source of power argument has been successful. • Non-compliance with the formalities regarding a DA, or how it is dealt with, or the way a consent is recorded, does not necessarily invalidate a consent. • In proceedings where an applicant seeks a remedy based on an absence of development consent, the onus of proving the negative proposition rests on the applicant. However, where the relevant facts are peculiar to the knowledge of a respondent, or the respondent has greater means to produce evidence of such facts, then provided the applicant establishes sufficient evidence from which the negative proposition may be inferred, the defendant will bear an evidential burden. The contents of the registers of development consents can provide sufficient evidence of the non-existence of consents not included in the registers. Given the probative effect of the registers, it is not necessary to call evidence to prove the system of record keeping by Council at the relevant time. The presumption of regularity is of limited assistance to assume a consent exists. This is an area where the law should lean in favour of doing things “by the book” in terms of evidencing a development consent and inferring that if a consent is not in the register it does not exist. Baiada noted the importance of the register of development consents held by the council required by s 100 of the EPA Act, and cl 264 of the EPA Regulation. Further, cl 266 of the EPA Regulation requires a Council to keep certain documents relating to DAs and consents. The register of consents in cl 264 and the documents under cl 266 must be available for public inspection free of charge at the council’s office, and copies or extracts may be made on payment of a reasonable charge (cl 268 of EPA Regulation).

It will be noted that, while the register is required to include the conditions of consent and the DAs, there is no clarity that the register must also include any extrinsic documents referred to in a consent, such as plans, reports, etc. Section 101 of Div 9 of the EPA Act provides as follows: “Division 9 Miscellaneous … 101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.” The notification procedures under s 101 are provided in cl 124 of the EPA Regulation requiring notice in a local newspaper by the consent authority. Section 101 is a privative clause, similar to s 35. The operation and limitations on such privative clauses have been discussed in Chapter ¶7.

¶54-310 Principles regarding the nature of a development consent The key principles derived from the discussion on the nature of a development consent are as follows: Principle 1: In determining a DA, a consent authority may either refuse consent or it may grant consent, with or without conditions. In granting development consent, the consent authority may grant consent: • for the development for which consent is sought

• for that development, minus a specified part or aspect, and/or • for a specified part or aspect of that development. (Section 80(1) and (4) of EPA Act) Principle 2: A development consent may be granted subject to a “Deferred Commencement” Consent, being a consent subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition (s 80(3) of EPA Act). Principle 3: Where a DA has sought a staged development consent a consent authority may decide not to initially grant consent for a specified part or aspect of a development, but subsequently may grant a consent for that specified part or aspect (s 80(5) of EPA Act). Principle 4: Following the determination of a DA, the consent authority is required to notify the applicant, objectors who made submissions in relation to designated development, all other persons who made submissions, and the Council (if the consent authority is not the Council) (s 81 of EPA Act and cl 102(2) of EPA Regulation). The notification is required to contain the information specified in the regulation (cl 100 of EPA Regulation) and to be issued within 14 days of the date of determination (cl 102 of EPA Regulation). Principle 5: Where development consent has been granted for the erection of a building, that consent also authorises the use of that building for the purposes specified in the DA (s 81A of EPA Act). Principle 6: Where development consent has been granted for the erection of a building, the erection of the building must not commence until a PCA has been appointed, a Construction Certificate has been issued by the PCA, and if the PCA is not the Council, then the Council has been given two days’ notice of commencement. This does not apply to Crown building works (s 81A of EPA Act). Principle 7: A development consent is not personal to the applicant but runs with the land and may be used by subsequent owners or occupiers (Royal Ryde Homes, Auburn v Szabo, Miller-Mead). As such it operates, as it were, in rem applying to the land itself,

irrespective of which particular persons may be in a position to act on it or be affected by it in the course of time (Parramatta v Shell). Principle 8: A development consent constitutes a unilateral act on the part of a consent authority expressed in a formal manner to the world at large with enduring functions. In some respects a development consent is equivalent to a document of title (Winn). Principle 9: A development consent is an authorisation permitting the holder to undertake the whole or part of the development, as approved, but it is not a requirement to do so. Provided the part of the development undertaken is not in breach of a condition of the consent, there is no obligation or requirement on the holder of the development consent to carry out the whole of the development approved by the consent. The holder of the consent may take no action at all (in which case the consent may lapse, having regard to the lapsing of development consents) or the holder of the consent may undertake only part of the development approved by the development consent. Provided that, in undertaking only part of the approved development, this work does not involve any breach of a condition of the consent, there is no breach of the consent if the holder does not undertake the remainder of the development authorised by the consent (Lucas). Principle 10: The granting of a later development consent does not operate to revoke an earlier development consent, unless there is a specific condition to that effect, which complies with s 80A(1)(b) of the EPA Act (Auburn v Szabo). Principle 11: Where a development consent is granted without any condition limiting its duration, and that consent has not lapsed for want of physical commencement, the consent continues to operate indefinitely (Auburn v Szabo). A consent may contain a condition which time limits its duration, such as a condition providing that the consent expires on a specified date, or after a specified period from its grant or commencement. Additionally, a consent may have limited duration where the nature of the development itself is limited, not by time, but where the development is capable of being spent and exhausted and hence, has

no more work to do. An example of this would be a development consent granted to quarry a resource within a specified three dimensional space. In this case, the development consent would be spent and exhausted when this three dimensional space has been extracted. Principle 12: There is no general rule in planning law that a development consent can be abandoned by the conduct of the landowner or occupier of the land. The duration of a valid development consent is governed solely by the planning legislation (Pioneer Aggregates, Nehme). Principle 13: Multiple DAs may be made in relation to the same land and as a result multiple development consents may apply to the same land (Pilkington). Principle 14: Where a development is granted for one use, and a subsequent development consent is granted for another use, the first use may be continued despite the grant of consent for the second use, or if the second use is commenced and the first use ceases then at a later time the first use can be resumed in reliance on the first consent (Auburn v Szabo). Principle 15: Where multiple development consents apply to the same land, all of these consents may operate unless it is not possible to carry out development permitted by one consent, due to development already carried out pursuant to another consent. Thus, where there are multiple consents applying to land, they all operate unless the implementation of one consent is no longer a practical possibility due to development already undertaken pursuant to another consent. However, the status of the consent no longer capable of being implemented is unclear. It may be held in suspense and thus available for use at some time in the future or fully spent (Pilkington). Principle 16: Multiple development consents may be held in relation to the same development, in addition to multiple consents applying to the same land but for different development proposals (Liverpool v Home Units, Drummoyne v Page). Principle 17: Where a person has the benefits of a development

consent, that person is bound to comply with the consent and its conditions. Once commenced, there is no obligation to fully implement a consent provided that, in undertaking part of the development authorised by the consent, there has been no breach of a condition of the consent. The person implementing a consent is bound by any condition of the consent relating to or governing that component of the development being implemented (Rao v Canterbury). Principle 18: It is likely that a development consent cannot impose obligations on a third party but it is lawful for a consent authority to impose a condition of consent conferring an obligation on an arm of the consent authority’s administration in relation to the proper administration, subdivision and implementation of a condition of consent (Mandalong). Principle 19: A development consent can only be issued which approves “development” as defined in s 4(1) of the EPA Act. A development consent cannot be granted which purports to approve something which is not “development”, as defined, such as an amendment to a condition of a development consent (Gordon & Valich), or an approval in principle, or approval to a master plan (Brooklyn Resort v Hornsby). Principle 20: A development consent may be granted for anything which constitutes “development”, as defined in s 4(1), including the erection of part of a building or part of a structure (see definition of “building” in s 4(1), and the making of alterations or arrangement or extension of a building (see s 4(2)(b) of EPA Act)). Principle 21: A development consent may be granted for development which depends upon another DA which is, as yet, unapproved (Seyffer v Shoalhaven). Principle 22: A development consent may be granted for a standalone development not dependent upon pre-existing development. A development consent may be granted for development which is dependent upon pre-existing development or a pre-existing development consent in force but not as yet implemented.

A development consent may be granted to change or alter parts of an existing development or parts of a development, subject to a development consent which is in force but has not been implemented (Waverley v Hairis Architects). Principle 23: There are two elements in the granting of a consent, namely a decision by the consent authority, and its formal communication to the applicants, both of which are required (Shanahan). It is the determination of the consent authority under s 80(1)(a) to grant consent that is the development consent, and the notice of determination under s 81(1) does not constitute the consent, but is merely evidence of the consent and is no substitute for the determination (Pselletes). Principle 24: Prior to the formal communication of a consent to the applicant, the decision to grant consent can be recalled and rescinded or altered by the consent authority (Shanahan, Townsend). Where notice of a rescission motion is properly given to a resolution of a consent authority to approve a DA, there is no breach of law if the consent authority fails to issue a notice of determination until after the rescission motion is dealt with (Townsend). Principle 25: Where a consent authority has communicated its decision to an applicant to grant development consent, the applicant is entitled to act upon the consent and the consent authority cannot withdraw it. The key ingredient in tying the consent authority’s hands is the formal communication of the consent to the applicant (even if there is a defect in the notification). (Shanahan, Ex parte Wright, Ex parte Forssberg). The process of notification of a consent involves simply the transmission of what has been resolved (Hopkins). A notice of determination of a DA which does not correctly reflect the decision of the consent authority is invalid and thus, the consent does not become operative (Pselletes, Hopkins). Where a consent authority has granted a development consent and notified the applicant, the consent authority cannot seek to alter the

terms of the consent granted (Ex parte Forssberg, Little). Principle 26: For a development consent to be granted, the proposed development must be specified with sufficient certainty of description, such that the decision of the consent authority can attract the quality or form of a consent capable of being granted and acted upon. The test of sufficiency of description of a proposed development upon which a development consent may be founded is variable, depending on the circumstances of a particular case, but does not extend to a class of building designated by a class description, eg professional rooms. An absence of a sufficient description of a proposed development makes it impossible for a consent authority to perform its duties under s 79C of considering the heads of consideration (Rocca). Principle 27: It is a question of fact as to whether a particular document constitutes a development consent, and there are certain basic matters required to be incorporated before a document will be adequate as a development consent. However, if a document indicates that the consent authority has reserved a discretion in wide terms to consider or be satisfied with further matters of substance, the document is not a development consent but rather, is nothing more than an expression of opinion. Where no proper DA exists, a document issued by the consent authority cannot constitute a development consent. In effect, a development consent is responsive to a DA. Where there is no DA, there can be no development consent (Holmes). Principle 28: The following factors may prevent a document having the qualities of a development consent: (a) the futurity of the language (b) the lack of specificity in the development and subject of the alleged consent, and/or (c) the fact that the plans did not comply with relevant statutory requirements.

For a document to constitute a consent it is required to have immediate and unconditional (or perhaps better phased as specific and precise) qualities, and to constitute a final expression of the consent authority’s power to grant a consent, rather than something which envisages further action being taken by the applicant before a final approval is considered (Loretta v Gosford). Principle 29: The question of whether a development consent has been given is one of fact that is capable of proof by: • express conduct of the consent authority, or • conduct evidencing consent. A letter or other document may constitute a consent despite an absence of a formal reference to the giving of consent. Such correspondence must have a sufficient level of specificity and finality. The question of whether conduct clearly evincing and evidencing consent for one purpose (eg the grant of a lease) can constitute consent for another (eg the grant of a development consent) is not settled, although it is noted that, in other contexts, an alternative source of power argument has been successful. Non-compliance with the formalities regarding a DA, or how it is dealt with, or the way a consent is recorded, does not necessarily invalidate a consent (Baiada). Principle 30: The contents of the registers of development consent can provide sufficient evidence of the non-existence of consents not included in the registers. The presumption of regularity is of limited assistance to assume a consent exists. This is an area where the law should lean in favour of doing things “by the book” in terms of evidencing a development consent and inferring, that if a consent is not in the register, it does not exist (Baiada). Principle 31: The Council is required to keep a register of DA and notices of determination of development consents available for public inspection free of charge, but it is unclear whether such register is required to include any extrinsic document incorporated in a development consent (s 100 EPA Act, and cl 264 and 266 of EPA

Regulation). Principle 32: Where a consent authority gives public notice of the granting of a development consent, a privative clause seeks to prevent the validity of the consent being subject to judicial review, except in proceedings commenced within three months of the date of the public notice. The operation of this privative clause has been addressed in relation to the private clause on challenges to the validity of EPIs (s 101 of EPA Act).

INCORPORATION OF EXTRINSIC MATERIALS IN A CONSENT ¶55-010 Looking beyond the notice of determination Given the importance of a development consent, the question arises as to whether, in construing the terms of a development consent, a person can refer to documents and materials other than the terms of the notice of determination issued by the consent authority. Clearly, in construing the development consent you need to construe the document granting the consent, namely the notice of determination. In construing the notice of determination, the usual principle of statutory interpretation applies, particularly the need to look at the document as a whole and the interrelationship of its various provisions. The issue remains as to whether one can go beyond this and whether one is entitled or required to look beyond the notice of determination to grant a consent to other matters, such as for example in construing a contract, where the intentions of the parties may be called in aid of construing a contract.

¶55-020 Miller-Mead v Minister for Local Government In the discussion on the nature of a consent, reference was made to the United Kingdom Court of Appeal decision of Miller-Mead v Minister for Local Government [1963] 2 QB 196 (Miller-Mead) at p 223–224, where Lord Upjohn LJ held that, in construing a planning permission,

you are not entitled to refer to the application lodged by the applicant. The UK position is outlined by Lord Lowry in the House of Lords (with whom Lord Bridge of Harwick, Lord Brandon of Oakbrook, Lord Griffiths and Lord Oliver of Aylmerton agreed) in Wyre Forest District Council v Secretary of State for the Environment [1990] 1 All ER 780 (Wyre Forest D.C.) at p 789–790 as follows: “The arguments on either side should also be considered in the light of an important principle of planning law: a planning permission is not a mere personal licence granted to the applicant but can be said to run with the land. A purchaser of land has an interest to know what development is permitted thereon but neither the planning application (if available) nor the planning permission will reveal the history of the use of the land. How then can the document granting permission best be construed? In Slough Estates Ltd v Slough BC (No 2) [1970] 2 All ER 216 at 217–218, [1971] AC 958 at 962 Lord Reid made the following observations: ‘My Lords, for the reasons given by my noble and learned friend, Lord Pearson, I would dismiss this appeal. But I wish to add a few observations about a question of law which is involved. The company argued that in construing the planning permission with which we are concerned it is proper to have regard to all relevant facts known to the planning authority when the permission was given-in this case correspondence which had passed between the parties. We did look at this correspondence before deciding whether it was admissible, and in my view it does not help the company so it is unnecessary to reach a decision. But as the matter was argued and is of general importance I think I should state my opinion. It is well settled that the court in construing a will or a contract must put itself in the shoes of the testator or the parties by admitting in evidence all relevant facts known at the time by the testator or by both the parties. But in my view it does not at all follow that the same applies to a public document. It could not possibly apply to a Minister making a statutory instrument. How far can it apply to a

written grant of planning permission? This is available to purchasers from the person who originally obtained the permission. They may have no means of discovering what facts were known to the planning authority. It is true that the person who originally obtained the permission would be likely to know. But the question may arise after many years. And it could hardly be that the permission could mean one thing in the hands of the original owner and something different in the hands of a purchaser from him. There is not much authority on the matter. We were referred to two cases. In Miller-Mead v Minister of Housing and Local Government [1963] 1 All ER 459; [1963] 2 QB 196 the permission granted was, if its words were given their ordinary meaning, [p 790] wider than what had been asked for in the owner’s application. But it was held not proper to use the application to cut down the ordinary meaning of the permission. On the other hand, in Sussex Caravan Parks Ltd v Richardson [1961] 1 All ER 731 at 735, [1961] 1 WLR 561 at 566–567 there are observations by Harman LJ, at 566–567, to the effect that in construing an entry in a valuation list it is permissible to have regard to extrinsic evidence and the company relied on them. They were not essential to the decision and are not supported by the judgment of Holroyd Pearce LJ. Of course, extrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence.’ And in R v Secretary of State for the Environment, ex p Reinisch (1971) 22 P & CR 1022 at 1029 (a case relied on by the council to show that a plan may be a guide to the meaning of a planning

permission) Lord Widgery CJ said: ‘Planning permissions are not construed by the canons appropriate to contracts; the intention of the parties, which is all important in the construction of a contract, has little meaning in the construction of a planning permission. A planning permission is effective if it so accurately describes the development to be carried out that anyone taking the permission and its accompanying plans and applications to the land together will be able to see, without doubt, precisely what it was which had been authorised.’ Therefore, in a case like the present, any uncertainty which exists or could be claimed to exist as to the meaning of the planning permission should, it seems, be resolved by adhering to the statutory definitions which prima facie represent the meaning of the words defined.” The UK position is based upon the particularly important status of a development consent, thus requiring a stricter approach towards its construction. The important features of a development consent are as follows: • A development consent runs with the land and hence, can be relied upon and may bind successors in title who may not have been involved in the lodging of the development application (DA) or the circumstances surrounding the grant of the development consent. Indeed, they may not even be able to access the DA documents. • A development consent is a public document and a statutory instrument binding the world at large, rather than a private contract between the parties, which only binds the parties to that contract. • Given the fact that a development consent runs with the land, construing the consent by reference to extrinsic materials raises practical difficulties after the passage of time when relevant documents and/or persons may not be available.

• A development consent is a document which not only affects persons entitled to use the land in question, but also affects the public at large, including neighbours. They should be able to rely on the publicly available development consent and be able to appreciate its terms, without any risk that its meaning may be altered by material of which they are not aware. • Although unstated in the UK decision, a development consent may give rise to actions for civil and criminal enforcement in the event of breach. Where the breach of a development consent can give rise to civil or criminal action, its terms need to be capable of clear and precise understanding.

¶55-030 Ryde Municipal Council v The Royal Ryde Homes In New South Wales, the principles for interpreting a development consent have followed similar lines to those in the UK. In Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 (Royal Ryde Homes), Else-Mitchell J in the Supreme Court of NSW heard proceedings to restrain The Royal Ryde Homes from operating a laundry at Ryde outside the hours of 7.30 am to 4.30 pm, Mondays to Fridays. The Royal Ryde Homes had lodged a DA in 1965 for a hospital laundry. On the DA form, the applicant, under a heading of proposed working hours, stated Weekdays 7.30–4.30. The Council granted development consent for a hospital laundry subject to no conditions. The Council argued that the development consent was an approval to the application lodged in the terms in which that application was framed. Else-Mitchell J held at p 323–324 as follows (footnotes not included): “It was submitted on the basis of decisions such as Rocca v Ryde Municipal Council and Attorney-General v Bristva Pty Ltd that it was not necessary for all the conditions of a development consent to be incorporated in the consent or other document which purported to operate as a consent, and that in the absence of any

limitation or express statement to the contrary the consent to the application should be read and construed as incorporating as conditions all the matters set out in the form of application. I have no doubt that the first of these submissions is sound and that a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council [p 324] of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent. In the present case, the fact that there was no formal consent was urged as a reason for treating the terms of the application as conditions of the consent, but that fact seems to me to point in the contrary direction; and indeed, for what it is worth, the only conditions recorded in the council’s register are simply not capable of being construed in an extensive fashion. It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title. I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of

clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.” Conclusions The following conclusions may be derived from Royal Ryde Homes: • The mere approval of a DA does not have the effect of incorporating all matters contained within the DA. • Serious inconvenience, ambiguity and confusion would be caused by regarding general statements of fact, assertions of intention, or other statements in support of a DA as terms and conditions of a development consent. • In concluding that the application was not incorporated as a condition of consent simply by the approval of the DA, the court was influenced by the fact that a consent is not personal to the applicant, but runs with the land. In some respects a development consent is equivalent to a document of title. • The legal qualities of a consent and which flow from a consent are significant. Hence, care needs to be taken to draft consents in clear terms with conditions specified with certainty.

¶55-040 Auburn Municipal Council v Szabo In Auburn Municipal Council v Szabo (1989) 67 LGRA 427 (Auburn v Szabo), delivered in 1971 some 18 years earlier than the case being reported, Hope J in the Supreme Court of NSW heard an application by the Council seeking a declaration that premises at Lidcombe cannot be used to store motor vehicles, and an order requiring the removal of the motor vehicles. A number of development consents had been granted by the Council. One of the issues in the proceedings was whether the Court was able to consider the DA or any other document in order to construe a consent.

Hope J held at p 433–434 as follows: “The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all [p 434] future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent.” Having said this, Hope J then continued: “On some occasions no doubt there is such an incorporation. Thus, if an application were made and a council did no more than approve the application, it seems to me that by necessary implication the terms of the application must be incorporated.” Thus, Hope J held that where a development consent simply approves an application, by necessary implication the terms of the DA must be

incorporated. Conclusions The following conclusions may be drawn from Auburn v Szabo: • In interpreting a development consent, the task is to look primarily at the notification of consent and construe it. This is based on the need to avoid confusion and difficulties because a development consent runs with the land. • However, the terms of another document may be incorporated into a development consent, either expressly or by necessary implication. Otherwise, it is not possible to go to other documents, such as the application form, in order to construe a development consent. • Where a development consent is granted that simply approves an application, in these circumstances the consent must by necessary implication incorporate the terms of the DA.

¶55-050 Parramatta City Council v Shell Co In Parramatta City Council v Shell Co [1972] 2 NSWLEC 632 (Parramatta v Shell), the NSW Court of Appeal heard a challenge as to whether an approval for the construction of a service station on sloping land authorised the filling of the land on which the service station was to be built. Hope JA (with whom Jacobs P and Manning JA agreed) held at p 637: “As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in

relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks. Construing the subject instrument of approval, I have come to the conclusion that the learned judge was right in holding that the development approved by the State Planning Authority was that of a service station on a flat or horizontal surface at a level approximating the level of the roads to which the site has frontages, and that it authorized any filling which was necessary for the purpose of producing such a surface.” Thus, Parramatta v Shell concluded that a development consent must be construed using the consent itself and any plans or documents incorporated in it. Recourse may be had to other documents to establish the true meaning of the consent. Included in this would be evidence of the nature of the site.

¶55-060 Stebbins v Lismore City Council In Stebbins v Lismore City Council [1988] NSWCA 146 (Stebbins), the NSW Court of Appeal heard an application for a declaration and orders seeking compliance with the terms of a development consent for a motel at Lismore. The motel proprietors, the Stebbins, lodged a DA for an extension to a motel, which at the time was located between the new Bruxner Highway and the old highway, with the only entrance to the motel from the old highway. The DA plans showed a driveway from the motel to the new highway with the words “new entrance” written on the plan beside the depiction of the driveway. The Council adopted the officers’ report recommending approval, but with no condition relating to the new entrance with the report stating that Council had no authority to approve access from the motel to the Bruxner Highway. Stebbins was notified of the granting of the development with a condition requiring that full design plans be

submitted for approval by the City Engineer before commencement of construction. One set of the plans submitted with the DA was returned to Stebbins by the Council with the plans stamped covering the entrance stating “amendment required here, refer to consent …”. A building application was lodged and was approved with the part of the plan showing the entrance stamped over with the word “Cancelled”. The Council wrote to Stebbins’ engineer advising that development consent had not been granted for the new entrance. Despite this Stebbins constructed the new entrance and Council commenced proceedings. On appeal, Stebbins argued that the Council had granted development consent for the new entrance, as the notification of consent contained no condition regarding the new entrance and hence, the stamped endorsement on the plan should be disregarded. Rejecting this submission, Mahoney, Priestley and Clarke JJA held at p 4: “The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan on which, at the time of consent, a marking had been placed showing that the development being approved did not include the new entrance. Read together the documents returned to the appellants informed them that the works shown on the plan were the subject of the development consent except insofar as an amendment was required in relation to the new entrance to the Bruxner Highway. The consent could not, in view of the stamp, be regarded as allowing for development in that area in the precise terms shown by the plan. If the written notice of consent alone is to be regarded as the consent so that it alone would appear on the public register the fact inescapably remains that it could not be understood by a searcher without recourse to the application itself, including the

accompanying plans. The searcher wishing to gain a full appreciation of the terms of the consent would then see a plan showing that no approval had been given to the new entrance. The point is that consent was not in fact given to the new entrance nor can the notice of consent accompanied by the stamped plan be regarded as an unqualified approval of the application to develop the new entrance as originally but no longer shown on the plan. The appellants’ case depends upon a conclusion that the written notice of consent, properly construed, constituted an unqualified consent to all the work originally shown on the plan. As we disagree with such a conclusion we think the appeal fails.” In Stebbins, the Court held that, as the terms of the consent were meaningless unless recourse was made to the DA and the accompanying plans, they were incorporated in the consent by necessary implication.

¶55-070 Wollongong City Council v Australian Iron & Steel Pty Ltd In Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 (Wollongong v AI&S), Holland J in the Land and Environment Court of NSW (NSWLEC) heard an application for declarations regarding the interpretation of a development consent for a waste emplacement at Wongawilli. The development consent contained a condition requiring all waste material to be hauled to the site by rail, subject to road haulage in emergency conditions. The company hauled huge quantities of blast furnace slag to the site by road on the basis that this was construction material and not waste and was to be used to construct a base course and a drainage blanket. Holland J held that the blast furnace slag was waste. Holland J considered the extent to which the DA and supporting Environmental Impact Statement (EIS) could be considered. He held at p 57 as follows:

“If it is permissible in this case to look also at the application and EIS documents the same conclusion follows and, in my opinion, with little room for doubt. I do not think that it has been decided that application documents may not be looked at for any purpose in construing or determining the application of conditions in a development consent. In the Royal Ryde Homes case, Else-Mitchell J said (at 323): ‘… the mere approval of an application does not I think necessarily have the effect of incorporating all the matters stated in the application’. In the Terminals Pty Ltd [Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44] case Hope J spoke in qualified terms when he said (at 50): ‘… generally speaking regard cannot be had to extrinsic evidence, other than evidence to identify a thing or place referred to in order to interpret such a document as a planning approval …’ and (at 51): ‘It may be, however, that in a case such as the present one reference may be had to extrinsic evidence in those circumstances in which that evidence is admissible in relation to an ordinary inter partes document’. Documents that are incorporated in the consent by reference are a permissible aid to construction as is ‘evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council’: Shell Co of Australia Ltd v Parramatta City Council [1972] 2 NSWLR 632 at 637; 27 LGRA 102 at 107. The references in the recitals contained in the determination to the application for development approval and the supplemental environmental impact statement, whilst not expressly incorporating their contents, except the plan referred to, into the determination, expressly identify the matter under consideration by the Minister that resulted in the determination. In my opinion that makes it permissible to look at them for assistance in, at least, ascertaining the subject matter of the conditions as distinct from adding to or modifying the conditions, their operation or the restriction or requirements contained in them.”

Conclusions The following conclusions may be derived from Wollongong v AI&S: • The DA documents may be looked at for the purposes of construing a development consent in some circumstances, such as: – evidence to identify a thing or place referred to in a consent – where the extrinsic documents are specifically incorporated by reference, and – to ascertain the subject matter of a condition, as opposed to modifying or altering the operation of a condition.

¶55-080 Halglide Pty Ltd v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd In Halglide Pty Ltd v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215 (Halglide), Hemmings J in the NSWLEC heard an application for a declaration and orders in relation to a pedestrian corridor running through two shopping centres at Blacktown. The owner of one centre had constructed the pedestrian corridor in accordance with the plans, but had a roller shutter preventing pedestrian movement between the two shopping centres. This was due to the owner’s concerns that use of the corridor may direct pedestrian flow away from the entry to their shopping centre. The development consent made no specific reference to the pedestrian mall, or obligation to maintain an interconnection with the adjoining centre. A condition required the development to take place generally in accordance with specified plans. The plans specified in the condition of consent referred to the corridor as a “link” and Hemming J held that these plans sufficiently indicated that the corridor was to be used as a pedestrian mall. Thus, in Halglide the issue was resolved on the basis of the expressly incorporated extrinsic documents, namely the plans. However, Hemmings J considered the general issue and held at p

217–219 as follows: “The parties are at issue as to the circumstances in which the nature and extent of this development approval can only be determined within the four corners of the notice of determination of the development application, or by [p 218] reference to plans or other documents which it might incorporate: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, at 637; (1972) 27 LGRA 102 at 107. Documents such as the development application or accompanying documents not actually referred to in the notice are said by the first respondent to be not relevant. For that submission it relies primarily upon the decision in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 … It was, and still is, common practice for councils to resolve merely to approve a development application when completely satisfied as to the details of the development specified in the application. It is notorious that the said legalistic approach to the construction of a development approval led councils to believe that in many cases development approved in that way was thereafter virtually uncontrolled. In later proceedings with respect to an approval granted pursuant to the EP&A Act, the Court of Appeal assumed, but did not decide, that the said Royal Ryde Homes’ approach to construction of a notice of approval was correct: Stebbins v Lismore City Council (1988) 64 LGRA 132. The subject notice made no reference to any restriction upon access to a highway, but the approved plan had an endorsement thereon to that effect. The Court said that such notice was not the only document of consent to which reference could be made, and was meaningless without reference to the plan accompanying the application. Such consent may alter or limit the development described in such plans, and when referring to such plan it was proper to inquire

into the actual meaning of any marks thereon. However, even before the EP&A Act and as early as 1971, the question of the implied incorporation of details of the development application in a subsequent consent had been considered, but unfortunately not reported until 1989: Auburn Municipal Council v Szabo (1989) 67 LGRA 427. Whilst Hope J accepted that primarily one looks at the document of consent to construe it, nevertheless it was held that where a Council did no more than approve the application, then by necessary implication the terms of the application must be incorporated in the approval. Szabo was not referred to in Stebbins or Wollongong City Council v Australia Iron and Steel (1988) 67 LGRA 51. Nevertheless, in the latter the Court was satisfied that it had not been previously decided that application documents may not be looked at for any purpose in construing or determining the application of conditions in a development consent. The Wollongong case concerned the meaning of a word in a condition of the consent. That same word had also been extensively referred to in an environmental impact statement which accompanied the application. The only reference to that document in the approval was to one of its plans, but only to identify the site. However, such reference was accepted as sufficient incorporation to enable consideration of that document to determine the meaning of the word in the condition. The word in the condition was construed as having the same meaning as that of the same word in the environmental impact statement. Most, if not all decisions which employ the Royal Ryde Homes’ legalistic approach to the construction of a consent preceded the EP&A Act. The precise specification of details of the proposed development on a prescribed application form is now compulsory: see the regulations, form 3. That Act also expressly enables reference to documents other than the notice of determination in order to construe the consent. Section 94(4) provides that a consent shall be sufficient to authorise the use of the building for the purpose for which it was

erected where the purpose is specified in the development application. A ‘development application’ is not defined, but its necessary contents are provided for by s 77 of the EP&A Act and the regulations. In line with authority, in appropriate circumstances this Court will go beyond the written notice of determination to ascertain the nature and extent of the consent. Without express reference thereto in such notice, plans accompanying the development application are most often taken into consideration and included as part of the approval. There are many examples, but see Baulkham Hills Shire Council v Hall 29 June 1990 (unreported) and Skyline Australia (Finances) Pty Ltd v Pluteus (No 301) Pty Ltd (31 August 1990, unreported). In this matter I have no doubt that I am entitled to refer to the approved plans in order to construe the consent. Even if I was primarily limited to an examination of the notice of determination, the plans referred to in condition 3 are expressly incorporated in that approval. The applicant, however, seeks to go beyond the plans referred to in condition 3. The provisions of s 77 have been amended, but at the time of the grant of the subject consent in 1986 required that a development application shall also embody such information as the applicant considers suitable to demonstrate that appropriate consideration has been given to the impact that the development will have on the environment (s 77(3)(c)). In fact, the subject development application was accompanied by an environmental assessment and other documents which, if relevant, would have probably further assisted in the resolution of the extent of the approval. However, those documents described what is already obvious from the plans.” Halglide drew attention to that part of Auburn v Szabo providing that recourse was available to extrinsic documents which were incorporated, not only expressly, but by necessary implication. That qualified the general proposition in Royal Ryde Homes that the mere approval of a DA does not have the effect of incorporating all the

matters contained in the DA.

¶55-090 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia In Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FLR 213 (Hubertus), Wilcox J in the Federal Court heard a claim for compensation in relation to land resumed by the Commonwealth at Badgery Creek for a proposed airport. In determining the quantum of compensation, Wilcox J was required to consider whether the former owner had a development consent for an outdoor rifle range. Wilcox J discussed the principal authorities at p 219–222 and concluded at p 222 as follows: “The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent. For example, where the council simply approves an application without describing the development, it is permissible to look at the application to determine what it was that the applicant sought to have approved (as in Szabo (supra) and Shell Company (supra)). It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins (supra) is consistent with the last-stated proposition. On the view of the case taken by the Court of Appeal, in order to learn the terms of the council’s consent it was necessary for a person to read the notification of consent in conjunction with the copy of the plan endorsed by the council. When the documents were read together, it became apparent that the unrestricted consent suggested by the letter of notification was in fact given subject to the elimination of the new entrance.

Applying these principles to the present case, it seems to me that, if a question ever arose as to what Liverpool City Council intended by its reference, in the letter of 10 October 1973 or the subsequent formal consent, to ‘club building’, ‘beer garden’ or ‘children’s playground’, it would be legitimate to look at the plan dated January 1973 in which each of these facilities was graphically described. To look at the plan for that purpose would be to use it to interpret the consent. But it is not legitimate, in my opinion, to look at the plan for the purpose of extending the consent; for the purpose of adding a facility that was not mentioned in the consent document to those listed as approved. This would be to use the plan to contradict the document, not to interpret it.” Wilcox J’s judgment in Hubertus is useful in explaining the scope of incorporation of an extrinsic document by inference (as opposed to express incorporation). He emphasises that incorporation by inference only arises where recourse to an extrinsic document is necessary to interpret a development consent. But recourse to an extrinsic document is not available to contradict the scope of a consent given in clear terms, whether that contradiction is to extend or limit the scope of the consent. He held that one cannot look at plans to extend the scope of the consent as this would be using the plan to contradict the consent, not to interpret it. Stebbins, according to Wilcox J, was an instance not of contradiction, but where the consent was unclear as to what was proposed. It is noted that Wilcox J’s decision in Hubertus was the subject of a successful appeal to the Full Bench of the Federal Court on different grounds (see Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1995) 130 ALR 447).

¶55-100 Loreto Normanhurst Association Inc v Hornsby Shire Council In Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45 (Loreto Normanhurst), Bignold J in the NSWLEC heard an application for a declaration that the development consent for the

Loreto Normanhurst College authorised the use of the gymnasium and swimming pool by organisations other than the school. At issue in the proceedings was whether the DA documents could be considered in interpreting the consents. Bignold J noted that the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) required a consent authority to notify an applicant of its determination of a DA in accordance with the regulations (the current requirement is in s 81(1) and, at the time of Bignold J’s judgment, before the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) commenced, it was s 92). At the time of Bignold J’s judgment, the Environmental Planning and Assessment Regulation 1980 (NSW) applied and required notice in accordance with Form 7. The current Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) does not contain a form for notifications of determination of a DA, but requires comparable information in cl 100. Bignold J claimed that the DAs were expressly incorporated in the consents because of the form of notification required under the EPA Regulation, which stated that a specified DA had been determined by the granting of consent. Bignold J held at paragraphs [30]–[34] as follows: “30 In my judgment, the very comprehensive and detailed statutory regime contained in the EPA Act and Regulation for the making of a development application and for the determination of that application and for the notification of the determination and for the public availability of the register of development consents necessarily means when that statutory regime is implemented that the development application (and its supporting materials that constitute the due ‘form’ of the application and the due ‘manner’ in which the application is made) is incorporated by express reference in the s 92(1) Notice and that it provides the full and proper description of the approved development (while recognising the legitimacy of details of the development so described, being modified by the imposition of conditions on the grant of development consent, as was held to have occurred in Woolworths) [Woolworths Ltd v Campbells Cash and Carry (1996) 92 LGERA 244].

31 The relevant provisions of the EPA Act and Regulation that I have cited are of course those that applied at the respective dates when the 1982 and 1997 development consents were respectively granted. They continue to constitute the detailed and comprehensive statutory regime under the EPA Act and Regulation as currently in force. 32 Importantly, the statutory regime has been in place since the original commencement of the EPA Act on 1 September 1980 and it has continued since then albeit expressed in the current form of the relevant provisions. The significance of the detailed and comprehensive regime has not generally been observed in the decided cases, which generally have sustained principles that were established in cases pre-dating the enactment of the EPA Act when the relevant town and country planning legislation lacked any real counterpart (even embryonically) to the comprehensive statutory regime governing development applications and development consents that was provided by the EPA Act from the time of its commencement in 1980. The decisions of the Court of Appeal in Stebbins and in Woolworths that I have earlier noted, come closest of all the cases to a consideration of the statutory regime, and they support the approach that I have taken of regarding the development applications to be incorporated by express reference into the s 92(1) Notices and to fully and properly describe the development that each of the 1982 and 1997 development consents approved. 33 Having regard to the statutory regime in force at the time that the s 92(1) Notices were issued in respect of both the 1982 and 1997 development consents and to the fact that each Notice incorporates by express reference the development application made in each case, it is legitimate, in my judgment, to have regard to the terms of the development application in construing the development consent, the subject of the s 92(1) Notices, in order to properly appreciate the nature and description of the developments that were approved, particularly bearing in mind that the full and accurate description of the proposed development is the centre piece of the prescribed form for

development applications. 34 When regard is had to the development application which is incorporated by express reference in the s 92(1) Notice given in respect of the 1982 development consent, it is apparent that the proposed gymnasium development was intended for use by the School.” The decision in Loreto Normanhurst interprets what is now is s 81(1) of the EPA Act and cl 100 of the EPA Regulation referring to the DA as a point of reference of a notice of determination as somehow amounting to an incorporation of the DA, an interpretation not supported by the statutory provisions. It is considered that to expressly incorporate a document requires direct language in doing so, such as requiring that the development shall be undertaken in accordance with a specified document or plan. It appears that Loreto Normanhurst is an aberrant decision, not subsequently followed and at odds with the statutory provisions and the line of authority.

¶55-110 Tipfast Pty Ltd v South Sydney City Council In Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85 (Tipfast), Pain J in the NSWLEC held at paragraphs [22]–[24] as follows: “22 The parties filed a Notice of Motion after the hearing of this matter in order to raise for consideration the decision of Bignold J in Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45, which had been handed down a few days prior to this case being heard. In that decision his Honour was required to construe the contents of two development consents. His Honour found that the s 92(1) EPA Act Notices issued in that case incorporated by express reference the development application in each case and, accordingly, it was legitimate to have regard to the terms of the development application and, in an extension of previous case law, additional documents which formed part of the development application, such as the statement of environmental effects. His Honour’s stated reason for doing so was because of the detailed statutory regime in the

EPA Act and Regulations for the making and determination of a development application and the public availability of the register of development consents. The statement of environmental effects was required by cl 45 of the 1994 Regulation to accompany the development application and was relevantly part of the development application incorporated by express reference in the s 92(1) Notice. In his Honour’s view, the significance of the detailed and comprehensive statutory regime in the EPA Act had not been observed in the decided cases which generally referred to the situation pre-dating the EPA Act. The decisions of the Court of Appeal in Stebbins and in Woolworths Ltd v Campbells Cash and Carry (1996) 92 LGERA 244 were referred to in support of this approach by his Honour. 23 The cases cited by the parties emphasise that only in limited situations should additional documentation be relied on, essentially when there is clear incorporation of further documents on the face of the development consent. 24 I do not think that the Loreto decision assists the Respondent’s case. The key factual difference is that in that case it was held there was express incorporation of the development application in the terms of the s 92(1) Notice. This is not the same situation as in this matter because I find that there is no express or implied incorporation of the DA, only the plans attached to the DA. While there is reference to the number of the application for development in the s 92 Notice, the wording of the Notice when viewed as a whole does not suggest that the DA is incorporated either expressly or by implication. I would describe the s 92 Notice as ‘self contained’, including as it does the description of the application for which consent is being given and specific reference to the plan, accompanying the application. No additional documentation is needed to clarify the content of the s 92 Notice.” However, an examination of the two notices does not reveal the clear distinction divined by Pain J. The first notice in Loreto Normanhurst refers to the DA number and the land, while the second notice in Loreto Normanhurst refers to the DA number and land but additionally,

has a brief description of the application: The notice in Tipfast is structurally the same as the second notice in Loreto Normanhurst.

¶55-120 Winn v Director General of National Parks and Wildlife In Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 (Winn), Stein JA held at paragraphs [198]–[202] as follows: “198 In construing a development consent it is only permissible to have regard to extrinsic material in limited circumstances. 199 As Hope J observed in Auburn Municipal Council v Szabo (1971) 67 LGRA 427, in determining what development a consent authorises, one looks primarily at the approval and construes it. The reason for this is that a consent is issued in rem and it would be inconvenient, to say the least, if one had to have regard to a series of documents to know what the consent authority intended to approve. The consent may incorporate another document if it does so expressly (not here relevant) or by necessary implication. In Szabo Hope J gave the example (at 434) of a council merely approving an application and no more. In such a case, the terms of the application would be incorporated by necessary implication. Szabo was applied by the Court of Appeal in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407–408. 200 When one examines the consent here in question, it is apparent that it is deficient in one respect only. It does not state the use which is being approved. The instrument of consent describes the location of the land the subject of the approval, and also refers to ML594, which had by that time been granted. It states that ‘the application to use the above land has been … approved, subject to any conditions that may appear in Schedule 1’. Reading the 67 conditions leaves no doubt as to the nature of the development being approved, and by necessary implication, the description of the development ‘Mineral Sands Mine’ in the

development application is incorporated. 201 The submission of Mr Robertson goes further. He submits that the consent incorporates, by necessary implication, the letter from RZM1 to the Council dated 1 February 1978, which accompanied the formal development application form. This letter (and an enclosed plan) described the proposal in some detail. It is submitted that it is necessary to incorporate the contents of the letter, indeed also a subsequent letter to the PEC2 in support of obtaining its concurrence, in order to determine the scope of the consent. I do not agree. Leaving aside the necessary incorporation of the description of the development from the development application, as a mineral sands mine, nothing further is needed. 202 The consent and its conditions are sufficient to delineate what it was that the Council was approving. There is no justification or necessity to refer to the letter which accompanied the development application, or any other extrinsic documents, in order to construe the consent.” Spigelman CJ (with whom Powell JA agreed) held at paragraphs [2]– [5] as follows: “2 His Honour refers to authorities which establish that the documents accompanying an application for consent are not taken as incorporated in the consent, unless incorporated expressly or by necessary implication. His Honour refers to Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, 408. 3 In addition to the authorities referred to by Stein JA, see Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 at 637 per Hope JA, with whom Jacobs and Manning JJA agreed at 637; Woolworths Limited v Campbells Cash and Carry Pty Limited (New South Wales Court of Appeal, 19 September 1996, unreported), at p 4 per Sheller JA, with whom Beazley JA agreed; Stradbroke Island Association v Sandunes Pty Limited and Redland Shire Council (1998) 101

LGERA 161 at 169; Sericott Pty Limited v Snowy River Shire Council (2000) 108 LGERA 66 at 74 per Beazley JA, with whom Handley and Powell JJA (in relevant respects) agreed; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [37]; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324 per Else-Mitchell and Stephen JJ; MillerMeed v Minister of Housing and Local Government [1963] 2 QB 1996 at 215 per Lord Denning and 223 per Upton LJ; Slough Estates Limited v Slough Borough Council (No 2) [1971] AC 958 at 962 per Lord Reid. 4 A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions. 5 I agree with Stein JA that in the present case the documents upon which the Appellant sought to rely were not incorporated in the consent, either expressly or by necessary implication. The construction of the conditions which the Appellant contends were breached cannot be determined in accordance with what is said to arise from the documents accompanying of [sic.] the application.” Winn approves the previous line of authority and provides that where a consent and its conditions are sufficient to establish what the consent authority has approved, there is no justification or necessity to consider other documents in order to construe the consent. Footnotes 1

CCH comment: “RZM” refers to the mining company — Rutile and Zircon Mines (Newcastle) Ltd.

2

CCH comment: “PEC” refers to the NSW Planning and Environment Commission.

¶55-130 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd In Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273 (Alcoa v Weston) the NSW Court of Appeal heard a challenge to the ability of Alcoa to receive aluminium dross and process it at premises at Yennora. One of the issues in the proceedings was whether the development consent for the Yennora premises authorised the processing of the aluminium dross. This case ultimately went on appeal to the High Court in Weston Aluminium Pty Ltd v Environment Protection Authority; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products [2007] HCA 50 which overturned the decision of the Court of Appeal. However, one aspect considered in the Court of Appeal, but not referred to by the High Court, related to reference to the DA documents. In the NSW Court of Appeal, Basten JA (with whom Spigelman CJ and McColl JA agreed) held at paragraphs [38]–[40]: “38 At [39] Lloyd J held that ‘in order to determine what is consented to one is entitled to look at the development consents and any documents which may be referred therein expressly or by inference’. His Honour’s conclusion appears to refer back to [25], where he held, in relation to consent no 81/254, that he was entitled to look at the development application because the consent referred to the development application. 39 That conclusion has broad ramifications: it is common practice for a consent to refer to the application to which consent is being given. However, it is doubtful that the existence of a reference to another document in a consent is to be treated, generally, as incorporating the contents of the other document. In this respect,

his Honour adopted the approach of Hemmings J in the Land and Environment Court in Halglide Pty Ltd v PT Ltd (1990) 71 LGRA 215. In that case Hemmings J appears to have treated the approach in Royal Ryde Homes as ‘legalistic’ and as distinguishable because it, and those cases which applied it, dealt with consents which preceded the EPA Act: at p 219. In relation to an application under the EPA Act, his Honour appears to have preferred a more relaxed approach to incorporation by reference, said to be derived from the judgment of Holland J in Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51 at 57, although Holland J only referred to the application and the environmental impact statement to confirm the opinion he had already reached without reference to them: p 54. However, it is doubtful whether the result in that case could have been achieved by applying the principles established in Royal Ryde Homes. There the Council had approved a development application for an industrial laundry, stating that it had ‘approved the development application’. The application contained a reference to limited hours of operation; however, the Court held that, in the absence of an express condition to that effect, the hours of operation were not so limited. 40 To the extent that, in the present case, Lloyd J held that he could refer to the application and the environmental impact statement in determining the scope and effect of consent 81/254, that approach required the principle identified in Halglide to be applied, not because they were incorporated by the document recording the consent of the Council, but because they were referred to in the covering letter sent to the applicant. The document headed ‘Development Consent No 81/254’, contained no reference to the development application as such …” This discussion regarding Royal Ryde Homes omits the fact that the principles in that case were altered as a result of Auburn v Szabo; further analysis of Halglide does not suggest that case or indeed Wollongong v AI&S propounded any principles outside of those expressed in Auburn v Szabo. Conclusions

The following conclusions may be derived from the NSW Court of Appeal decision in Alcoa v Weston: • Where a development consent refers to the DA to which consent is being given, it is doubted that a reference to another document in a consent is to be treated generally as incorporating the contents of that document. This conclusion addresses, in part, the view proposed in Loreto Normanhurst, and distinguishes between a reference to another document in a consent and the actual incorporation of that document in a consent. • Where a consent contains ordinary words there is no basis to refer to other documents to give those ordinary words a more precise and restrictive meaning.

¶55-140 Extrinsic material can be enforced as per other conditions by civil or criminal enforcement Where extrinsic material is incorporated in a development consent, it becomes part of that consent and operates as a condition with no lesser status than any other condition of the consent. Hence, incorporated extrinsic materials are equally binding on a person(s) enjoying the benefit of a development consent in the same manner as any other condition of the consent. Thus, the extrinsic material incorporated in a development can be enforced in the same manner as any other condition by civil enforcement under s 123 of the EPA Act or by criminal enforcement under s 125 of the EPA Act. This is implicit, although not argued, in the decisions in Auburn v Szabo, Stebbins and Halglide. A development consent is expressed as requiring the development to be “undertaken generally in accordance with” specified plans or documents. Often there are extrinsic documents expressly incorporated in a consent. As the phrase “generally in accordance with” is often used in development consents, some attention to the meaning of that phrase is merited.

¶55-150 Grace Bros Pty Ltd v Willoughby Municipal

Council In Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 (Grace Bros v Willoughby), Wootten J in the Supreme Court of NSW considered the meaning of “generally in accordance with” in the context of a development and Interim Development Order (IDO) under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919), which provided council shall not grant consent unless the proposed development is “generally in accordance with” specified plans. Council granted consent generally in accordance with the plans referred to in the IDO, together with a condition requiring building setbacks with the greater of the plans referred to in the IDO or other plans. It was contended that the effect of this was to require greater setbacks than was provided for in the plans referred to in the IDO. Wootten J held at p 406–407 as follows: “The use of the words ‘generally in accordance with’ are obviously intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend on the criteria by which it is judged. In this case we are concerned with town planning. From that point of view it seems to me that the alterations required by condition (ix) are not such that the consent is to a development not generally in accordance with the relevant plans. The alterations required to the outlines of the building are minor. They have some impact on the internal space available but it is not, in my view, significant in the overall context of the development. Only the north eastern corner of the development is affected. I do not accept the plaintiff’s contention that the Myer delivery and despatch centre is a car parking structure. Even if it were, I would still not think that the consequential variations would take the consent outside of the orders.” The decision of Wootten J was subject to an unsuccessful appeal to the NSW Court of Appeal, but this issue was not considered in the judgments in the NSW Court of Appeal.3

Conclusions The following conclusions may be derived from Grace Bros v Willoughby: • The use of the words “generally in accordance with” intends to allow some latitude or variation from the specified plan or document. • Only variations which are not significant from a town planning perspective fall within the term “generally in accordance with”. • The question of the significance of any variations needs to be judged in the overall context of the development. Hence, it is a relative standard of the variation when judged against the development as a whole. Footnotes 3

See Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400.

¶55-160 Colin Maybury v Weston Aluminium (Producers) Pty Ltd In Colin Maybury v Weston Aluminium (Producers) Pty Ltd [1998] NSWLEC 17 (Maybury), Talbot J in the NSWLEC heard a challenge to an aluminium dross recycling facility at Kurri Kurri. Condition 1 of the development consent required that the applicant carry out the development generally in accordance with a specified EIS. Maybury claimed the development could not be carried out generally in accordance with the EIS as the applicant for the DA (the subject of the consent), Alumino (Australia) Pty Ltd, was in liquidation and the Kurri Kurri property had been sold to Alusim Pty Ltd (now known as Weston Aluminium Pty Ltd). As such, Maybury asserted that Alusim/Weston was not the proponent referred to in the EIS and hence, Condition 1

cannot be complied with. Talbot J held in relation to this part of the proceedings: “The reference to carry out the development generally in accordance with the contents of the EIS is an expression widely used to define the nature and extent of development and the manner of constructing it or carrying out. It is not intended to be a definitive specification which must be literally complied with in every case. A development consent must be regarded as a document which is to be given a practical effect. Regard must be had to the purpose of any condition and the development consent itself. The purpose of a development consent is to approve the erection of a building, the carrying out of work, the use of land or subdivision as the case may be in a broad planning sense. The fine detail of the proposal is regularly left in practice to further examination on a subsequent application such as for building approval. Even then it is not always possible to encompass the minutiae of the proposal. The overall scheme of the EPA Act and other legislative controls over development has to be taken into account. The reference to development being carried out generally in accordance with the EIS recognises the function of a development consent and that some latitude in the application of the terms of the conditions of consent will be tolerated. In many respects it is an unfortunate practice because it can lead to confusion and disharmony arising out of the nature of an EIS which is, in part, often a discussion document which contemplates alternatives and offers opinions and assessments based on conjecture. A close reading of the reasons for judgment on 29 March 1996 does not disclose any express reliance upon the material in the EIS to which Mr Maybury refers. The Court obviously paid close regard to the expert evidence relied upon by the applicant and the other parties. The evidence was tested by cross examination and each party made detailed submissions. The process to be used was described and the prospect of environmental impact assessed as required by s 90 of the EPA Act.

Having regard to the legal effect of a development consent as being in rem to run with the land, it would be onerous and impracticable to expect that an applicant for development consent must only carry out the proposal itself or in conjunction with specified individuals unless there is an express condition to that end. To construe condition 1 of the development consent in the way demanded by the applicant in this case would be contrary to common sense and in defiance of commercial reality. Accordingly the carrying out of development other than as a joint venture with the Mino Group will not be contrary to the terms of the development consent. Although there can be circumstances where the identity of a proponent will be relevant during consideration of a development application, it does not follow thereafter that the proponent is the only person entitled to act on the consent after it is granted in the absence of a specific condition to that effect. The Court was not persuaded that was necessary in the subject case. It cannot be subsequently said that such an intention can be inferred from condition 1.” The Maybury decision highlights the issue that documents such as an EIS, a statement of environmental effects and a planning report or other supporting information include an extensive amount of material. Such documents contain information that can fall within the following categories: • descriptive material regarding the proposed development • descriptive material about how the proposed development is to be constructed • descriptive material about how the proposed development is to be operated • description of the existing environment of the site • predictions and forecasts in relation to the effects or impacts of the development

• assessments of the significance of the proposed development and various attributes of the affected environment, and • argumentative material advocating the merits of the proposed development. The question arises as to how much of this material is incorporated in a development consent where the consent expressly incorporates the entire document containing this material. Maybury suggests that it is generally only the first three of these categories. Conclusions The following conclusions can be derived from Maybury: • The expression “generally in accordance with” in relation to a document is used to define the nature and extent of the development and how it is to be constructed and carried out, but it is not intended to be a definitive specification to be literally complied with. Components of documents unrelated to the nature and extent of the development and how it is to be constructed and carried out are not thereby included as conditions of consent. This would apply to descriptive material and predictions or forecasts or expectations. • Any variations need to be considered in the context of the purpose of the condition and the consent, and is not directed at the fine detail or minutiae of the proposal. It is designed to permit some latitude in the application of the terms of the conditions of consent. • It would be unreasonable to expect that an applicant only must carry out the proposal itself, given that a consent runs with the land, unless there is an express condition to that end.

¶55-170 Principles regarding the incorporation of extrinsic materials in a development consent The key principles derived from the discussion on the incorporation of

extrinsic materials in a development consent are as follows: Principle 1: A development consent should be construed strictly due to its important legal qualities as a result of the following features: • A development consent runs with the land and hence, can be relied upon and may bind successors in title, who may not have been involved in the lodging of the DA or the circumstances surrounding the grant of the development consent. Indeed they may not even be able to access the DA documents. • A development consent is a public document and a statutory instrument binding the world at large, rather than a private contract between parties, which only binds the parties to that contract. • Given the fact that a development consent runs with the land, construing the consent by reference to extrinsic materials raised practical difficulties after the passage of time when relevant documents and/or persons may not be available. • A development consent is a document which not only affects persons entitled to use the land in question, but also affects the public at large, including neighbours. They should be able to rely on the publicly available development consent and be able to appreciate its terms, without any risk that its meaning may be altered by material of which they are not aware. (Miller-Mead, Wyre Forest D.C. and in part Royal Ryde Homes and Auburn v Szabo) • Additionally, a development consent may give rise to actions for civil and criminal enforcement in the event of breach. Where the breach of a development consent can give rise to civil or criminal action, its terms need to be capable of clear and precise understanding.

Principle 2: In interpreting a development consent, the task is to look primarily at the notification of consent and construe it (Auburn v Szabo, Royal Ryde Homes). Principle 3: The terms of another document may be incorporated into a development consent, either expressly or by necessary implication. Otherwise, it is not possible to go to other documents, such as the application term, in order to construe a development consent (Auburn v Szabo). Principle 4: A document may be incorporated in a development consent by necessary implication, only where the meaning of the consent is not clear from the terms of the consent and recourse to other documents is necessary to establish the true meaning of the consent (Parramatta v Shell, Stebbins, Wollongong v AI&S, Halglide, Hubertus, Winn). Principle 5: However, recourse to extrinsic documents is not available to contradict the scope of a development consent given in clear terms, irrespective of whether that contradiction is to extend or limit the scope of the consent (Hubertus, Wollongong v AI&S). Principle 6: Examples of where a document is incorporated in a development consent by necessary implication in order to establish the true meaning of a consent are as follows: • Where a development consent simply approves an application, in which case the consent must by necessary implication incorporate the terms of the DA (Auburn v Szabo, contra Royal Ryde Homes). • Evidence of the nature of an existing site, to establish what is required to enable a development consent to be acted upon (Parramatta v Shell). • Where the terms of a development consent would be meaningless, without reference to the DA and accompanying plans (Stebbins, Halglide). • To identify a thing or place referred to in the development consent

(Wollongong v AI&S). • To ascertain the subject matter of a condition, as opposed to modifying or altering the operation of a condition (Wollongong v AI&S). • However, if a consent simply refers to a DA, it is doubtful whether that is sufficient to incorporate the terms of that DA in the consent (NSW Court of Appeal in Alcoa v Weston, Tipfast, contra Loreto Normanhurst). Principle 7: Where extrinsic material is incorporated in a development consent, it becomes part of that consent and operates with the same status and force as any other condition of that consent and compliance can be enforced by civil and criminal enforcement (Auburn v Szabo, Stebbins and Halglide by implication). Principle 8: Where a development consent requires that development be undertaken generally in accordance with specified plans or documents: • the words are clearly intended to allow some degree of latitude or variation (Grace Bros v Willoughby, Maybury) • the words relate to those aspects of a document which define the nature and extent of the development and how it is to be constructed and carried out, and not other descriptive material or predictions, forecasts or expectations in the document (Maybury) • the words permit latitude in relation to the fine detail or minutiae of a proposal (Maybury) • the words permit latitude where the variations are not significant or important when considered from a planning perspective (Grace Bros v Willoughby), and • the significance of any variation needs to be judged in a relative or comparative context against the overall development (Grace Bros v Willoughby).

INVALIDITY OF CONSENTS ¶56-010 Failure to grant an actual consent, or failure to grant consent to the development application Section 80(1) provides that, where a consent authority grants a development consent, it meets two fundamental requirements: (1) The consent authority must actually grant a consent to undertake development, not something less than that or simply a step along the way of enabling the applicant to undertake development, such as an approval “in principle”. (2) The consent authority must grant a consent to the development application (DA) before it and hence, the consent is responsive to the particular DA and flows from the consent authority’s consideration of that DA. A failure to meet the two fundamental requirements specified in s 80(1) results in a consent being invalid.

¶56-020 Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of NSW and New World Properties (NSW) Pty Ltd In Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of NSW and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61 (Lend Lease Management), Cripps J in the Land and Environment Court of NSW (NSWLEC) heard a challenge to the validity of a development consent for a site near the intersection of George Street and Bridge Street, in Sydney. The Council granted consent to the DA subject to a condition that the total floor space ratio (FSR) should not exceed 12.41:1 and that the FSR should be subject to the approval of the city planner prior to the lodgement of a building application and subject to “standard

conditions”. In his judgment, Cripps J held at p 84–85 as follows: “In my opinion, it is not open to a council to grant development consent and to leave it to some other person to determine whether or not the subject building will have a floor space ratio of something between 5.5:1 and [p 85] 12.5:1. Even if I accept (as I am expected to do as a matter of commonsense), that the practical effect of condition 1 was that it was left to Mr Doran to determine whether the building would have a floor space ratio of 10.5:1 or 12.5:1 that would not, in my opinion, be a valid exercise of the Council’s power to impose conditions. A development having a floor space ratio of 10.5:1 would be an entirely different development from one having a floor space ratio of 12.5:1, as anyone familiar with planning would know. It must be remembered that condition 1 (and for that matter, conditions 2, 3 and 4) of the consent, were part of the original planner’s report presented on the assumption that a building (not the subject building) could be designed for No 1 Bridge Street which would not overshadow Australia Square Plaza. Whether or not that be the explanation for the form the resolution took, it is clear that the plans before Council provide for a building having a floor space ratio of a little in excess of 12.41:1. The height and design of the building were made clear by the plan. To alter the floor space ratio by 2:1 or even 1:1 would, in my opinion, significantly alter the development in respect of which consent was granted. In my opinion, to approve a building subject to such conditions is, in law, no approval at all. I am also of the opinion that the consent was flawed by the condition that it was to be subject to ‘standard conditions’. I am prepared to accept that the reference to ‘conditions 3, 4, 5 and 6’ at 9 of the report dated 13 March 1986, was sufficient in all the circumstances to identify those conditions. However, there was

nothing before the Council which would indicate what would have been ‘standard conditions’. In my opinion, it is not to the point that many of the fifty-eight conditions were culled from recommendations made by some Council officers before 3 April and that many were in the rough draft Mr Doran handed Alderman Bradford just before the meeting. The fact is that these were not before the meeting at which the consent was granted. Furthermore, I accept the evidence of Mr Doran that he had never known the Council to annex ‘subject to standard conditions’ otherwise than in respect of minor development. It must be remembered that the development proposed at No 1 Bridge Street was said to cost $54 million. Alderman Sartor said, in all the circumstances, the expression ‘subject to standard conditions’ had no meaning to him and I accept that as an accurate description of the phrase when annexed to the development consent.” Lend Lease Management concluded that it was not open to a consent authority granting a development consent which leaves open to another person to determine a matter which could result in an entirely different development, or would significantly alter the development, or to attach a condition devoid of meaning, but enable another person to add additional conditions. Thus, an approval is not a consent at all if a condition either: • permits another person to determine an issue which could significantly alter the development, or • is meaningless, but permits another person to add conditions.

¶56-030 Mison v Randwick Municipal Council In Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) LGRA 349 (Mison), the NSW Court of Appeal heard an appeal in relation to a challenge to the validity of a development consent for a new dwelling at Coogee brought by neighbours. The Council resolved to grant consent subject to a condition that the development be carried out generally in accordance with the DA plans and Condition 5, which

provided: “Overall height of the dwelling-house being reduced to the satisfaction of the Council’s chief town planner”. The basis of the challenge was that, due to Condition 5, the Council decision did not constitute a consent at all. Priestley JA held at p 737: “In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. It does not seem to me to be necessary to consider the different and harder to establish test that compliance with the condition will make the application an ‘entirely different development’. The test I have stated is not complete. Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made. The introduction of the word ‘significantly’ into the test imports into the decision-making process of the consent authority a judgmental factor incapable of precise statement.” Priestly JA held that the approved development was significantly different from that in the DA as any height reduction would impact on the entire development. As a result Condition 5 left the outcome in a fluid state. Priestley JA also considered the argument that the consent was not a consent at all because of its lack of finality and certainty. He held at p 738–739 as follows: “The other basis of objection to what the Council had done in its

purported consent was that as well as not being a consent to the application that had been made to the Council, it was not a consent at all because of its lack of finality or certainty. Bignold J referred to authorities from which he drew the rule that the consent must be final and certain in order to be a consent. I agree with this view, and will not repeat the citation of authority. I note however that what are finality and certainty for consent purposes must be judged by a substance approach rather than the strict kind of approach which requires absolute precision. Again, although it is possible to gather authorities in support of what I have said, the requirements of finality and certainty flow from the terms of s 91 itself. Subsection (1) raises the question whether something called a consent by a consent authority is in fact a consent or is something less. [Author note: This is now s 80(1) in the EPA Act post the 1997 Amendments] In regard to this aspect of the case Bignold J was of the view that by granting development consent and imposing condition 5 the Council was not leaving any specific matter unresolved or up in the air but was rather delegating a circumscribed and limited function in respect of one aspect only of the approved development in regard to a matter which on the evidence was not seen by the Council as one of pre-eminent concern. To my mind, the circumstances of the case require a different factual conclusion. The matter of the height of the proposed building, and of its positioning on the block, [p 739] were both of importance to the appellants to the knowledge of the Council and the imposition of condition 5 was a response to that concern. The result of the imposition of the condition was to leave unknown what the height of the building would turn out to be. The appellants might well ask the question what that height would be if the development consented to went to completion. It is quite clear that a precise answer to that question is impossible. That, in my opinion, does not of itself mean that finality and certainty, in a

substantial sense, were lacking. However, the further and more general question, within what range will the height of the building be, seems likewise to admit of no answer. This seems to me to be fatal to the contention that the consent was sufficiently final and certain in what was in my opinion an important aspect of it, to be regarded as a consent in fact to a particular application, and consequently, in the circumstances of the present case, as a consent in point of law.” Clarke JA held at p 739–740 as follows: “The principle that a valid consent must be final and certain is established and was accepted by the parties. The point was expressed by Wells J in terms which, with respect, I find persuasive in Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68. His Honour said: ‘ … For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.’ In my opinion what is said in that passage applies to s 91 [now s 80(1)] of the Environmental Planning and Assessment Act 1979 (the Act) under which a development application must be granted, either conditionally or unconditionally, or refused. Although s 91(3) [now s 80A] specifies those conditions which may be imposed this subsection does not have the effect of qualifying the principle that a consent must be both final and certain. Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the

question may [p 740] arise whether the consent is final. This will not necessarily be the case. Where, however, the question does arise there may be cases in which the answer is clear. In other instances questions of degree may be involved. It is neither possible nor desirable to attempt to lay down a criterion to be applied in every case in determining whether a consent is final. What must be decided is whether the consent finally determines the development application. Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. An example of a case in which a purported consent was held not to be final is to be found in Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61. In that case Cripps J (at 85) concluded that a purported consent which left to the city planner the power to determine which of two substantially different floor ratios should be applied to the development was not a valid consent. It seems clear to me that his Honour reached that conclusion upon the basis that the responsible authority had not finally disposed of the application. It had, on the contrary, delegated to its planner the power to make a further decision which, depending upon the view that the planner took, could fundamentally alter the development. Until that decision had been made it could not be said that the application had been determined. In this case condition 5 required a reduction in the overall height of the house but reserved to the chief town planner the extent of that reduction. Although the consent also provided that the development was to be carried out generally in accordance with specified plans submitted with the application there was no criterion laid down pursuant to which the planner would determine the ultimate height of the building.

That this aspect of the development was of critical importance was beyond question. The height, and positioning of the building on the site were, arguably, the two most critical features of the development, as the Council was well aware. In reserving to its planner the power to decide the height question without imposing strict guidelines the Council left an important aspect of the development for later decision by its planner. In the light of the importance of the height factor and the relative lack of restriction upon the planner’s discretion I do not think it can be said that the Council finally disposed of the application. Although I agree generally with what Priestley JA has said on the other ground I would prefer to rest my decision on the lack of finality in the consent.” Meagher JA agreed with both Priestley JA and Clarke JA (at p 740). Bases for the invalidity of a development consent Mison identifies two bases for the invalidity of a development consent: (1) If the consent, as granted, significantly alters the development as applied for in the DA: The test of whether the terms of a consent “significant alter” the DA is a lesser test than a test of whether the terms of a consent constitute an “entirely different development”. If the terms of a consent significantly alter the development as applied for in the DA, there has been no consent to the DA. Additionally, if the effect of the terms of the consent is to leave open the possibility that the development will be significantly different from that in the DA, in those circumstances, there has been no consent to the DA. The test of what is significant alteration is incapable of precise statement, but requires a consideration of the specific facts of a case. This first basis was one of the grounds found by Priestley JA. Meagher JA agreed with Priestley JA. Clarke JA stated that, while he generally agreed with this ground, he would prefer not to found his decision on this ground. (2) If the consent lacked finality and certainty:

The issue of lack of finality and certainty is one of substance, not of strict form. It must not leave a matter unresolved and “up in the air” what is an important aspect of the DA. An important aspect of the development is one in relation to which a later decision on that aspect could alter the proposed development in a fundamental regard. An important aspect of the development is one which was of critical importance in the decision, being a contentious issue. This elaboration on what is an important aspect of the development was given by Clarke JA. This assumes that it is lawful to reserve for later determination aspects which are not important aspects of the development. Also Clarke JA suggests that it may be lawful to reserve for later determination an important aspect of a development if criteria were established for the making of this later determination.

¶56-040 Scott v Wollongong City Council In Scott v Wollongong City Council (1992) 75 LGRA 112 (Scott v Wollongong), the NSW Court of Appeal heard an appeal in relation to a challenge to the validity of a development consent for the erection of a five-level motel in Wollongong. Condition 27 of the development consent required the applicant to carry out work in an adjoining park as specified in an attached document and plan “subject to final determination by Council of that document and plan or the relevant sections thereof”. In the appeal, the consent was attacked on the grounds of the lack of finality of this condition. Samuel JA (with whom Meagher JA and Handley JA agreed) did not distinguish between the two grounds of invalidity in Mison, although Samuel JA suggested that the test proposed by Priestley JA in Mison was stricter than that proposed by Clarke JA. Samuel JA held at p 118–119 as follows: “The principle of ‘finality’ is intended to protect both the developer and those in the neighbourhood who may be affected by the proposal, against the consent authority’s reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to the principle.

However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision. The present is just such a case. I agree with Mr Davison that the application and consent have finally resolved the particular use of the land and the specific character of the building; and the circumstances of that use have been substantially prescribed. But a number of matters ancillary to that use have been generally (although in some cases with a degree of precision) stipulated, with details left for later determination. … [p 119] However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development ‘in a fundamental respect’, nor will the development be ‘significantly different’ from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility …” Conclusions The following conclusions may be derived from Scott v Wollongong: • It is common and inevitable that a development consent contains conditions providing for some aspect of the development to be left for later decision by either the consent authority or a delegate. A development consent cannot finally resolve all aspects of a development with absolute precision.

• Where a development consent has finally resolved the particular use of the land, specific character of the building, and the circumstances of the use have been substantially prescribed, that demonstrates finality. • Matters which are ancillary to the use may be reserved for later determination as they are ancillary to the core purpose of the application, and will not alter the development in a fundamental respect, or result in a development which is significantly different. The conclusions in Scott v Wollongong were confirmed with the addition of the then s 91(3) of the EPA Act by the Local Government (Consequential Provisions) Act 1993 No 32 (NSW), which is now the current s 80A(2) following the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments) to the EPA Act.

¶56-050 Winn v Director General of National Parks and Wildlife and Ors In Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 (Winn), the NSW Court of Appeal heard a challenge to the lawfulness of mineral sands mining in the Tomago sand beds in Newcastle. The development consent included Condition 64, which provided that the subject area shall be mined once only, unless consent in writing had been obtained by the Minister for Mines and the Hunter Water Board. An issue in the proceedings was whether re-mining of areas previously mined was permitted by the development consent. Stein JA held at paragraphs [206]–[212] as follows: “206 The consent does not define any of the terms — shallow mining, re-mining or deep mining. It refers only to ‘mining’. However, the plain words of condition 64 provide that the leaseholder ‘shall mine the subject area once only’. This statement is then qualified, ‘unless’ the consent to do so has been obtained from the nominated third parties. It is plain that the

Council could not delegate its statutory role as consent authority to a third party if the effect of doing so is to fundamentally alter the ambit of the approval. Mining the land more than once would do this. It would offend the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 741. 207 In essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition will be significantly different to that applied for, then it is not a consent to the application. If the consent leaves for later decision an important aspect of the development which will alter it in a fundamental respect, the consent cannot finally determine the application. See in particular the judgments of Priestley JA and Clarke JA. 208 There have been many similar decisions in different Australian jurisdictions. The judgment of the Chief Justice refers to some, to which I would add further examples: Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 86 (Cripps J), Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1990) 70 LGRA 79 at 89 (Hemmings J), Malcolm v Newcastle City Council (1991) 73 LGRA 356 at 365 and Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 (Pearlman J). 209 The Mison principle was also discussed by the court in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118. Samuels JA indicated that the principle of finality was designed to protect both the developer and the affected neighbourhood against a consent authority’s reservation of power to alter the character of the development in some significant aspect, thereby changing the settled expectations of the consent already granted. Acknowledging that consents cannot always be expected to contain all ultimate detail, if a condition was ‘ancillary to the core purpose’ and would not alter the development in a fundamental respect as would lead to a significantly different consent to the granted, it was permissible. The dicta of Samuels JA was later specifically enacted in amendments to the Environmental

Planning and Assessment Act 1979. 210 One underlying rationale for the principle is the diminishing of participation rights of objectors heard at the time of the consent. The principle also seeks to ensure that the decision taken to grant the consent is not undermined by later changes by the council, a nominated officer or third party, which may result in a development taking place which has been not assessed by the consent authority and which may have important environmental effects not relevant to be assessed at the time of granting the consent. 211 This does not mean that there is no room for flexibility or that questions of degree do not arise in some instances (Transport Action Group v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117]). One example of flexibility is the opportunity for a developer to seek to amend a consent. 212 In my view, the words in condition 64 following ‘once only’ were beyond the power of the council to impose. It does not follow, in my opinion, that other conditions are similarly invalid or that the whole consent falls, see, for example, Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13. The invalid rider to condition 64 may be severed and the consent remain valid and operative. A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage. If a condition is fundamental to the whole of the consent, it cannot be severed and the whole consent is invalid. That is not the situation here.” Thus, Stein JA held that re-mining was not approved based on Mison. Stein JA then proceeded to discuss the issue of severance. Spigelman CJ disagreed with Stein JA and held that re-mining was not in breach of Mison. He held at paragraphs [9]–[19], [30] and [32]–[39] as follows: “9 Stein JA concludes that this part of Condition 64 can be set aside. First, his Honour concludes that it constitutes an impermissible delegation by the council of its statutory role as a

consent authority, because it fundamentally alters the ambit of the approval. His Honour refers to Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 741. Secondly, his Honour concludes that that part of Condition 64 may be severed on the basis that it is not fundamental to the consent. His Honour refers to Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72. 10 In Mison, this Court held invalid a consent to a development application which included the following condition: ‘Overall height of the dwelling house being reduced to the satisfaction of council’s Chief Town Planner.’ 11 The relevant power was found in s 91 of the Environmental Planning and Assessment Act 1979 which provided: ‘91(1) A development application shall be determined by — (a) the granting of consent to that application, either unconditionally or subject to conditions.’ 12 The common law has not developed a general principle that the exercise of a statutory power must be ‘certain’. (See King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194– 195; Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 at 227– 228; Qiu v Minister for Immigration (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42). The issue is one of construction of the particular statute under consideration and the application of the statute to the circumstances of the particular case. 13 A purported exercise of the power in s 91 of the Environmental Planning and Assessment Act will not be valid unless the decision constitutes a ‘consent’. Furthermore, a purported exercise of this power will not be valid unless it constitutes a ‘consent to that application’. 14 The ancillary power to impose conditions cannot be exercised in such a manner as to have the consequence that the exercise of the power fails to answer the description of a ‘consent’ or a

‘consent to that application’. (See Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 41, 83; Genkem Pty Ltd v Environment Protection Authority supra at 44B–F, 49B–G; Evans v Western Australia (1997) 77 FCR 193 at 211–214). 15 This process of statutory construction has sometimes been expressed in the terms of a ‘principle of finality’, peculiarly applicable to the construction of planning statutes. (See eg City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15–16; Scott v Wollongong City Council (1992) 75 LGRA 112 at 115–118; McBain v Clifton Shire Council [1996] 2 QdR 493 at 496; Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437 at 452; ‘Administration of Finality Principle’ (1996) LGPLG 136). Such terminology must be approached with care. The issue always turns on the construction of the particular statute. 16 In Mison, this Court held that the condition there under consideration was such that: (i) The consent was not a ‘consent’ by reason of the significance of the issue left for further determination (at 738– 739 per Priestley JA and at 739G–740B per Clarke JA); and (ii) The consent was not a ‘consent to the application’ because it left open the possibility that the further determination would significantly alter the development for which the application was made (at 737A–D per Priestley JA and 740E–F per Clarke JA). 17 However, as Mason P, with whom Sheller JA agreed, said in Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117]: ‘Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited.’ 18 Indeed, as Samuels JA said in Scott v Wollongong City

Council supra at 118: ‘ … it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or offences to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision.’ 19 As Mason P pointed out in Transport Action Group v Road and Traffic Authority supra at [117] Mison itself ‘recognised that questions of degree are involved’. The determination of whether a condition deprives a purported consent of the character of a ‘consent’ or of a ‘consent to that application’ will often be difficult. … 30 The provision in Condition 64 for consent of the Minister for Mines and of the Board for mining ‘more than once’ is only one example of numerous such provisions which permeate the scheme. Indeed, it is the most distinctive characteristic of the entire set of conditions that it contain detailed regulation of each step in the mining process. This is consistent with what is expressly referred to in Condition 17(c) as ‘the experimental nature of the mining operation and the possible risks involved thereby’. Similarly Condition 1 provides that mining should be ‘considered as a trial’, by reason of the fact that detrimental effect to the aquifer or the Board’s assets may take time to be ‘recognised and assessed’. … 32 The detailed and comprehensive provision for control of virtually every aspect of the mining and rehabilitation of the land permeates the scheme. A number of these conditions deal with minor matters which could not impinge on the issue of validity. However, a number are potentially of the same order of

significance as Condition 64 eg Conditions 4, 6, 7, 14, 15, 36 and 50. The lack of finality, if there be such, in Condition 64 is reflected in such a large number of conditions, all of which manifest the ‘experimental’ or ‘trial’ nature of the mining at the time of the respective approvals, that the process of obtaining further detailed approval represents an essential aspect of the whole scheme. If the requirement for approval found in Condition 64 is invalid then, in my opinion, many of the other conditions are indistinguishable and the whole scheme of the conditions would also be invalid. Invalidity in this respect would cause the whole of the conditions to fail. This would extend to the conditions relied upon by the Appellant ie Conditions 1, 20 and 30. They could not be permitted to stand alone. No doubt such a conclusion may have (or at least may have had) other implications, but no case to that effect has been pursued. In any event, in my opinion, conditions of this character are valid in the present context. 33 In the present case a regulatory authority, with State-wide environmental responsibilities, adopted and applied, for purposes of planning approval, a detailed regime of regulation worked out by two other statutory authorities, one with a clear responsibility and interest to maintain water quality and the other with overlapping statutory responsibilities. In the circumstances, in my opinion, the regime which was adopted by the Planning and Environment Commission for planning purposes was a valid exercise of the powers conferred on it, specifically the power under IDO 23 to require the Council to impose conditions as a condition of its own consent for development for purposes of a mineral sand mine. 34 When the Court is called upon to assess the validity, in terms of finality and certainty, of the exercise of statutory power, the scope, nature and subject matter of the power is of great significance. So also, in a context concerned with the ‘grant’ of an ‘application’, is the nature of the development the subject of the application. 35 The starting point for the determination of such issues is the purported exercise of power. As Dixon J said in Swan Hill

Corporation v Bradbury (1937) 56 CLR 746 at 756: ‘In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often the most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce.’ 36 The proposal to mine over an area is, of its nature, a development the full implications of which cannot be determined in advance. It is a form of development which by its nature will frequently require a development approval to contain conditions which permits adaptation of the development to the environmental implications as they unfold. This is what occurred in the detailed provisions of the Conditions of Authority by which the Board and the Minister reserved a right to control the operations in extraordinary detail, down to the grant of permission for a dog to be present on the site. 37 The statutory power of the Planning and Environment Commission, limited to concurrence for a mineral sand mine, together with the application being for such a mine, over the entire area, are both of a character that, in the circumstances of this case, provision for further approvals to the development was a valid exercise of the power. The nature of the development is frequently determinative in this regard. (See for example Flynn v Director of Public Prosecutors [1998] 1 VR 322 esp at 343). 38 The application for which consent was sought in the present case did not involve a single structure in a single location. It involved mining within an area. Conditions of the character imposed by the Commission did not deprive the Council’s grant of the character of a ‘grant’ for ‘the application’. 39 In my opinion Conditions 17 and 64 are valid. In my opinion, re-mining with the concurrence of the Minister and the Board is permissible and the deep mining, whether re-mining or not, is permissible pursuant to the provisions in Condition 17, permitting the Minister and the Board to stipulate the depth of mining activity. In my opinion, the Appellant’s case that neither re-mining

nor deep mining was permitted should be rejected. It was a form of ‘mining’ for which approval had been given, subject to the further approval of the Minister and the Board.” Powell JA agreed with Spigelman CJ. Stein JA noted the two bases of invalidity according to Mison. It then appears that his subsequent discussion at paragraphs [209]–[212] is directed at the second of the Mison grounds of invalidity, namely of leaving an important aspect of the development unresolved and reserved for later determination, and not the first ground of a consent granted, which significantly alters the development as applied for in the DA. However, Stein JA referred to the reservation for later determination not of an “important aspect” of the development used by Priestley JA in Mison in relation to this second ground, but instead referred to “alter the character of the development in some significant aspect”, referring to similar language used by Priestley JA in relation to the first ground in Mison. Stein JA considered that, where a condition of a development consent breached the second ground in Mison it was potentially capable of severance. But as Powell JA pointed out, both grounds in Mison lead not to invalidity of a condition or part of a condition, but to the entire consent being invalid. Spigelman CJ notes that there is no general requirement that the exercise of statutory power is certain. Rather, such matters must flow from the particular statutory provision, which in this case, is now s 80(1) of the EPA Act. In this case, s 80(1) requires that a valid exercise of s 80(1) must constitute a consent to the DA. The power to impose conditions must, likewise, constitute part of a consent to the DA. Spigelman CJ favoured an approach which referred to the issue of validity being whether what the consent authority did was a “consent” or a “consent to that application”, and expressed some caution about describing this as a principle of finality. He noted that Mison did not prohibit any retention of flexibility or any delegation to a third party of “supervising” a later part of the development.

Thus, some reservation of matters for later determination is permitted by the second ground in Mison while others are not. The determination of this involves questions of degree and is approached by looking at the nature of the development and the context of later approvals within the overall nature of the development. The 1997 Amendments to the EPA Act reformulated the provisions of the original EPA Act in relation to the determination of a DA and the imposition of conditions. Relevant for the current discussion, the 1997 Amendments inserted a new s 80A(4) which provided as follows: “80A(4) Condition expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.”

¶56-060 The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd & Anor In The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd & Anor [2005] NSWCA 269 (The Warehouse Group), the NSW Court of Appeal heard an appeal relating to a challenge to a development consent issued by Liverpool City Council for a bulky goods salesroom at Warwick Farm. The consent issued by the Council required the use to be limited to the sale of the 12 categories of items in the definition of bulky goods salesroom in the LEP. One of the issues on appeal was whether this condition required the premises only to be used for the sale of bulky goods, which significantly altered the development in respect of which the DA was lodged as to not be a consent at all in accordance with Mison. Hodgson JA held at paragraphs [86]–[90] in relation to this issue.

“WAS THE CONSENT 1937/01 A CONSENT TO THE APPLICATION? Submissions 86 Mr. Craig submitted that the imposition of a condition to the effect that the premises be used in accordance with the definition of ‘bulky goods salesroom’ had the effect of ‘so significantly altering the development in respect of which the application [was] made’ that ‘the purported consent [was] not a consent to the application’: Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA. 87 Mr. Robertson submitted that the statement in Mison was too broadly expressed, and was certainly so in relation to the present statutory provisions: ss 79C, 80(4) and 80A(1)(a) and (g) contemplated conditions that could very substantially alter the development from that for which the application was made. 88 Mr Craig responded that Mison was not affected by the introduction of provisions concerning deferred commencement and staged development. Under such provisions, a consent authority could grant part of an application and leave the balance for later determination (Patrick Autocare Pty Limited v Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687); but, he submitted, this does not affect the application of Mison to indivisible applications dealt with as a whole. Decision 89 I accept that the provisions referred to by Mr Robertson mean that, in the particular circumstances dealt with by those provisions, conditions may be imposed that have the effect that the development approved is substantially different from that applied for. In my opinion, the statement in Mison is still correct (see Pallas Newco at [133]); but in order for that principle to apply in those circumstances, the alteration must go beyond alterations of the kind contemplated by those

sections. 90 In my opinion, the condition in this case limiting the use to use in accordance with the definition of ‘bulky goods salesroom’, as correctly interpreted, was not such an alteration that the consent was not a consent to the application.” Basten JA agreed with this finding of Hodgson JA (paragraph [126]) while Handley JA made no finding on this issue. It is noted that the relevant provisions of the EPA Act at the time of Mison were broadly equivalent at the time of The Warehouse Group. Hodgson JA suggested that the constraints on the second ground in Mison (namely, reserving for later determination an important aspect of the DA, which could alter the proposed development in a fundamental regard) are in certain respects overridden by the provisions in s 80 and s 80A of the EPA Act. Thus, Hodgson considered that instead of the statutory provisions in s 80A operating within the constraints set in Mison and sourced in the power in s 80(1), the reverse was the case, with the power in relation to total and partial consents (s 80(4)) and conditions (s 80A) providing exceptions to Mison. That, however, may not be the case in relation to s 80A(1)(a) regarding the power to impose a condition relating to a matter referred to in s 79C(1). Moreover, the later decision in GPT Re Pty Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 suggests the conclusion in The Warehouse Group may not be correct.

¶56-070 Kindimindi Investments Pty Ltd v Lane Cove Council & Anor In Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23 (Kindimindi), the NSW Court of Appeal heard an appeal in relation to a challenge to a development consent granted to a shopping development at Lane Cove. One of the grounds for challenge related to uncertain conditions. Basten JA (with whom Handley JA and Hunt AJA agreed held at paragraphs [24]–[30]: “24 In accordance with principles explained by this Court in Mison

v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of ‘significantly altering the development in respect of which the application is made’: at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application. 25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed. 26 In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced ‘to the satisfaction of Council’s Chief Town Planner’. Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application. 27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was ‘an important aspect of’ the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development ‘which was beyond question of critical importance’. However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission. 28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be

significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests. 29 Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows: ‘(4) Conditions expressed in terms of outcomes or objectives A consent may granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.’ 30 The first complaint made by the Appellant was that the consent had ‘deliberately’ omitted reference to the plans which accompanied the development application and that without those plans the nature of the development could not be ascertained with sufficient certainty. That course was said to be deliberate because conditions 1 and 2 required that changes be made to the plans which accompanied the application and condition 3 required that a revised set of plans be filed. Until such plans had been prepared, the nature of the development remained, so it was submitted, uncertain in substantial respects.” Basten JA dismissed the challenge on the ground regarding uncertainty of the condition. He held that the architectural plans were

incorporated in the consent and the conditions required alterations to those plans. He held that Condition 3, which required the submission of revised plans addressing the changes requested in Condition 1 and Condition 2, was largely administrative or mechanical in effect requiring a single complete revised set of plans with the changes required by the council. It was also submitted that the conditions rendered the consent not final and certain in that “… they altered the development in a significant or fundamental respect” (paragraph [38]). The underlying premise of this ground was that the plans had not been incorporated in the consent, a conclusion which Basten JA previously rejected, thus, leading to the rejection of this ground of challenge. It was also submitted that a number of the conditions which required amendments requiring the carpark to be enclosed to provide visual relief and interest, the provision of a safe pedestrian path and a wall to be consistent with certain design details did not comply with s 80A(4) which permits conditions which identify an express outcome or objectives for an aspect of the development and clear criteria against which achievement of these outcomes or objectives can be assessed. Basten JA held that some of the conditions did comply with s 80A(4) while others did not. He then referred to Mison, holding at paragraphs [52], [54]–[55] and [57]–[59] as follows: “52 The test in Mison, noted above, was not expressed in terms of fundamental difference, but of a consent having ‘the effect of significantly altering the development’. That, as was expressly recognised by Priestley JA, was a different and lesser test than that of compliance with a condition which would make the application an ‘entirely different development’: at 23 NSWLR, 737B. It is true that in Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508 at [124]–[126], Powell JA spoke of ‘fundamentally altering the nature of the development’ but, because the discussion followed immediately upon lengthy extracts from the judgments in Mison, without any suggestion that a different test was being applied to that espoused in Mison, I would not understand his Honour to have adopted the ‘harder to establish test’ eschewed by Priestley JA in that case. On the

other hand, the discussion in the judgment of Stein JA at [209]– [216], adopts a variety of terminology, and the precise implications of the variations may need to be explored in another case. The reason why that is not necessary in the present case derives from the nature of the errors asserted. … 54 According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and 1(b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis. 55 A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Road and Traffic Authority (1999) 46 NSWLR 598, at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different

question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of ‘practical flexibility’ (as in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised. … 57 Returning to the present facts, neither condition 1(a) nor condition 1(b) will be invalid merely because it is imprecise or uncertain. It will only be invalid if it falls outside the class of conditions permitted by the EP&A Act. The addition, since Mison and other pre-1997 authorities in this Court, of s 80A requires that that question be answered primarily by reference to the terms of that provision. Thus, to the extent that each condition relates to a matter referred to in s 79C(1)(a) (being the matters to be taken into consideration by the consent authority) and (g) (because each modifies a detail of the development) they are prima facie valid. Thus, the argument for the Appellant must be that each will comply with the statutory requirements only if they also satisfy sub-s 80A(4). However, care must be taken not to invert the intended purpose of that provision. It is not, in its terms, expressed as a restriction which would apply to all conditions: rather it appears to be intended permissively to allow a condition to be formulated in a particular manner. Thus, in referring to the identification of an outcome or objective and clear criteria against which the achievement of the outcome or objective ‘must be assessed’, the inference is that it is dealing with a condition which requires a change in a development which may perhaps take one of a number of forms, leaving to the proponent an element of discretion, subject to compliance with criteria against which the selected variation can and will be assessed. The intention appears to be to allow an initial level of uncertainty and lack of finality. It does not mean, however, that a condition cannot be

imposed in order to satisfy a broad objective, without specifying matters of detail. For example, if condition (b) had merely required the enclosure of the open sections of the carpark without referring to the objective of ‘providing visual relief and interest’, it would have been difficult to argue that the condition fell within the terms of sub-s 80A(4) as a condition which stated an objective. The addition of reference to an objective should not lead to the imposition of some requirement for greater precision than would otherwise have been intended. 58 The need to apply a purposive approach to this provision is clear also from its use of the term ‘outcomes’. That should not be understood in its ordinary meaning of a result or a visible effect, but rather in the sense of a broader objective, which will not be sufficient to identify any particular result. Furthermore, there is no reason to apply the section in a mechanical way involving the separate identification of an outcome or objective and the criteria against which the achievement of that outcome or objective can be assessed. Objectives can be identified in a manner which includes the criteria, although the important qualification is that the criteria must be ‘clear’. 59 The apparent purpose of the provision is to allow a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the proponent. In my view neither of the conditions in question falls within these requirements. There is a danger that the adoption of an overly prescriptive approach will have the result of imposing on the consent authority an obligation to specify a level of detail which it did not intend to require and which was not necessary to comply with its regulatory functions. A consequential danger would be to permit an analysis of such matters which may encourage a court to cross the borderline into impermissible merit review of the decision.” Basten JA noted that, in relation to the first ground in Mison, the question was whether a consent has “the effect of significantly altering the development”, which is a lesser and different test from where the consent makes the development “an entirely different development”.

Basten JA noted some terminological confusion by Stein JA and Powell JA in Winn. The test for the first ground of Mison provides that a consent is invalid if the development consented to is not that for which approval was sought. This test requires an evaluative judgment. Basten JA did not determine whether the appropriate question is whether the significance of the change is when viewed in relation to that part of the development altered, or whether it is the development as a whole. In Kindimindi no challenge was made on the first ground in Mison. Basten JA noted in Kindimindi that the challenge was based on the second ground in Mison. Such a challenge has two separate elements: (1) A condition may be uncertain, but it may be final in that it does not require a further decision, either by the consent authority or a third party. Mere imprecision or uncertainty is not a ground of invalidity. (2) It will only be invalid if it is outside the scope of conditions permitted under the EPA Act, primarily s 80A. Basten JA then focused on s 80A(4). He considered s 80A(4) is intended to allow conditions to be formulated in a particular manner. It assumes that the condition requires a change in a development, which may take a number of forms at the discretion of the applicant, provided it complies with the criteria against which it is to be assessed. Thus, s 80A(4) permits an initial lack of certainty and finality. An outcome should be understood as a broad objective (as opposed to a result), but the criteria against which they are assessed must be clear. Thus, the condition needs to sufficiently identify the result sought, and to leave the means of achieving it to the proponent.

¶56-080 GPT Re Ltd v Belmorgan Property Development Pty Ltd In GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 (GPT v Belmorgan), the NSW Court of Appeal heard an appeal relating to a development consent for a hotel, conference centre and residential apartments at Wollongong. The Council granted

a deferred commencement consent to the DA. One of the grounds of challenge claimed that there was no consent to the DA, as lodged. Basten JA (with whom Bell JA and Young CJ in Eq agreed) noted that there was no expert evidence before the NSWLEC or the NSW Court of Appeal as to the significance of the changes in architectural, engineering or other respects, but there were two sets of plans showing the effects of a condition imposed by council requiring the removal of two above-ground levels of car parking and placing this below ground with a consequential redesign of the building. Basten JA held at paragraphs [44]–[46]: “Validity of conditions: legal principles 44 An environmental planning instrument may, with respect to particular categories of development and specified land, permit development, prohibit development, or prohibit development without consent: ss 76(1), 76A(1) and 76B. In relation to the third possibility, to obtain consent a proponent must ‘apply’ to the consent authority for ‘consent’ to carry out the ‘development’: s 78A(1). The matters which the consent authority must take into account are, relevantly, those specified in s 79C(1): see [15] above. This scheme carries with it a number of inherent implications. The first is that any application for consent must contain a sufficient level of particularity to allow the consent authority to assess the proposal against the specified criteria. Secondly, that to which the consent is given must accord with that for which application had been made. Thirdly, a ‘consent’ must be definitive in the sense that it authorises the proponent to proceed with the proposed development. 45 Such bald statements require a degree of qualification. The first, namely the nature of the application, gives rise to no issue in the present case. The second and third do, however, and require further analysis. Aspects of an application, especially one involving a large development with disparate elements, are likely to give rise to a number of matters requiring evaluative judgment on the part of the consent authority. These are likely to be the subject of conditions. Such conditions may fall into one of four

broad categories (though the categorisation is not intended to be exclusive): (a) variation to aspects of the development identified in the application; (b) compliance with the requirements of other agencies (including those responsible for road safety and fire safety); (c) control of the construction of the development; and (d) control of its operation once constructed. 46 It is only in relation to the first category of conditions that issues arise in the present case. Where a consent requires a variation of the application, there is potential for departure from so much of the statutory scheme as requires that the consent be given or refused in relation to the development identified in the application: EPA Act, s 80. Whether specific conditions involve such a departure from the application as to prevent the consent satisfying the scheme of the Act will involve questions of degree. Such questions have been the subject of consideration by this Court in a number of cases over the years. In Mison v Randwick Municipal Council (1991) 23 NSWLR 734, this Court identified two broad categories of case in which a consent might fail to comply with the statutory scheme. …” Basten JA then cited the summary of Mison from his judgment in Kindimindi: “47 In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; 46 NSWLR 598, this Court considered whether certain decisions with respect to the construction of a motorway were invalid because of modifications to the proposed works after the completion of a required environmental impact assessment. This provided a different context (the relevant statutory provisions being found in Part 5 of the EP&A Act) to questions of consent to a development application. Nevertheless, the Court noted, with respect to Mison,

two different aspects of a valid consent, namely that a condition should not significantly alter the nature of the development and that the granting of consent imported a requirement of finality and certainty: at [115] (Mason P). 48 Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed. A degree of ‘practical flexibility’ is likely to be necessary, especially in respect of complex developments: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 (Samuels AP). Where a condition requires variations which can be checked and approved by a council officer, by reference to prescribed criteria, it may readily be said that the consent is sufficiently final and certain. Where the criteria for future assessment are imprecise or unspecified, there may be an effective delegation of authority to the officer to exercise his or her judgment: if the delegation is not in itself a valid means of disposing of the application, the result will be invalid. On the other hand, if the delegation is valid, it may suggest that the consent purportedly given by the Council is not itself a valid consent. 49 The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.” Basten JA then referred to the changed statutory provisions in s 80 and 80A enacted subsequent to the decision in Mison. Basten JA held at paragraphs [54]–[57] as follows: “54 These provisions have a number of aspects. First, s 80(1) is

permissive as to the scope of conditions but appears not to expand that scope beyond conditions which would be permissible in the legal exercise of the powers of a planning authority: see generally, Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 at [213] (Stein JA). 55 Secondly, and consistently with Mison, s 80A permits the modification of ‘details’ of the development. This language appears to be inconsistent with any suggestion, contrary to Mison, that the condition could significantly alter the development: see s 80A(1)(g). 56 Thirdly, to the extent that a consent may not be final in the sense of being immediately operative, but may have effect only upon the satisfaction of one or more conditions, it would appear that the principles expressed in Mison in relation to uncertainty are qualified by the validation of consents conditioned upon the requirement to achieve an express outcome or objective, assessable according to ‘clear criteria’: s 80A(4). 57 As noted in Kindimindi at [57] the various elements of s 80A(1)–(6) are permissive and, at least in some parts, address different aspects of development approval, thus suggesting that they are not cumulative. They affect the statutory scheme, but not the test of validity of a consent. They allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: see Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 44 (Gleeson CJ), 49 (Powell JA, Dunford JA agreeing with both).” Applying these principles in the case before him, Basten JA held that conditions requiring the removal of design features from the towers and the removal of the above-ground car parking levels were both significant variations to the proposed development, but without any criteria against which the result could be assessed under s 80(4). Further, there was uncertainty as to what other changes were required to comply with a Development Control Plan. Basten JA concluded at paragraph [63]:

“63 The inescapable conclusion is that there was no consent in unqualified form given to the application lodged by Belmorgan. Rather, it was expected that significant changes would be made to the application before what might best be described as an ‘in principle’ consent became operative. It was likely, if not inevitable, that the development which might ultimately be undertaken pursuant to the consent would be significantly different from the development contained in the application. The specified changes made that virtually inevitable; the unspecified requirements could reasonably be expected to achieve further significant changes. It must follow that the purported consent given on 21 August 2006 could not fairly be described as a consent within the meaning of s. 80 of the EP&A Act to the development application no 2004/1565, as lodged by Belmorgan.” When considering the decision in the NSWLEC at first instance, Basten JA took the view that the consent conditions complied with s 80A. Basten JA held at paragraphs [73]–[74]: “73 In testing the conclusion thus reached, his Honour took the ‘carpark issue’ as ‘one example’: at [60]. With respect, it was necessary to consider all of the matters potentially subject to alteration, rather than taking one example. However, the example was, for reasons outlined above, sufficient in itself to demonstrate that there would be a significant alteration to the development as described in the application. Having considered the example in broad terms, his Honour concluded in the same paragraph: ‘In the result, s 80A operates to permit the relevant condition even if it may be thought to contravene the Mison principle.’ 74 For reasons explained above, the proposition that the relevant conditions fell within the terms of s 80A should not have been accepted. More detailed consideration of the effect of the changes would have demonstrated that conclusion. Further, the suggestion that, if a condition fell within the terms of s 80A, Mison had no effect was not necessarily correct. For example, it would have been possible to define outcomes and criteria by which those outcomes should be achieved with a high level of precision,

but with the result of turning a cinema complex into an office block. Section 80A(4) may have been complied with, but there would not have been consent to the development described in the application.” Conclusions The following conclusions may be derived from GPT v Belmorgan: • The scheme of the EPA Act has the following inherent implications: – A DA must contain a sufficient level of particularity to permit the consent authority to assess it. – The development, as consented to, must accord with the development (the subject of the DA). – A development consent must be definitive in that it authorises the proponent to proceed with the development. • Conditions of a development consent may fall within a range of categories, including: – variations to aspects of the development as applied for in the DA – compliance with the requirements of other agencies – control of the construction of the development, and – control of its operation, once constructed. • In relation to the first category of conditions, namely variations to aspects of the development as applied for in the DA, the variations may not comply with the statutory requirement to either grant or refuse consent to the development identified in the DA. • The question of whether variations in a consent does not comply with the statutory scheme involves questions of degree. Mison identifies two broad categories where a consent does not comply

with the statutory scheme: (1) when a condition significantly alters the nature of the development, and (2) when the granting of consent fails to import a requirement for finality and certainty. These grounds are interrelated, as issues on the second ground may be relevant to the first ground. • The extent to which variation to a development as proposed in a DA is allowed may depend on requirements for public notice and the rights of persons affected to object. This suggests that, if a variation is likely to impact the public, it is less likely to be within the scope allowed under Mison. • So far as the interaction between the Mison principles and the provisions of s 80 and 80A of the EPA Act is concerned, only s 80A(4) qualifies the broader view expressed in The Warehouse Group, that s 80 and s 80A provide exceptions to the principles in Mison. A similar conclusion was reached by Pearlman CJ in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 at paragraph [55].

¶56-090 Principles regarding invalidity of consents due to failure to grant an actual consent, or failure to grant consent to the development application The key principles derived from the discussion on invalidity of consents due to a failure to grant an actual consent, or a failure to grant consent to the DA under consideration are as follows: Principle 1: A development consent is required to meet two fundamental requirements: (1) it must actually grant consent, not simply be a step along the road to a consent or a qualified “in principle consent”, and

(2) it must be a consent to the particular DA under consideration and hence, is responsive to that DA and flows from the consent authority’s consideration of that DA. (Section 80(1) of EPA Act) Principle 2: The scheme of the EPA Act has the following inherent implications: • A DA must contain a sufficient level of particularity to permit the consent authority to assess it. • The development, as consented to, must accord with the development (the subject of the DA). • A development consent must be definitive in that it authorises the proponent to proceed with the development (GPT v Belmorgan). Principle 3: A development consent is invalid in the following instances: • The consent, as granted, significantly alters the development as approved for in the DA. Thus, there has been no consent to the DA under consideration. • The consent must be final and certain and not leave an important aspect of the DA unresolved and “up in the air” for later determination by either the consent authority or a third party. Thus, there has been no actual consent (Mison, GPT v Belmorgan). These are referred as the first and second grounds in Mison. Principle 4: In relation to the first ground of invalidity under Mison: • Conditions of a development consent may fall within a range of categories, including: – variation to aspects of the development as applied for in the DA

– compliance with the requirements of other agencies – control for the construction of the development, and – control of its operation, once constructed. In relation to the first category of conditions, namely variations to aspects of the development as applied for in the DA, the variation may not comply with the statutory requirement to either grant or refuse consent to the development identified in the DA (GPT v Belmorgan). The test for the first ground in Mison is whether the terms of the consent “significantly alter” the DA. This is a lesser test than whether the terms of the consent constitute an “entirely different development” (Mison). Where there has been a failure to comply with the second ground in Mison, which leaves open the possibility that the development as undertaken will be significantly different from that in the DA, this also fails to comply with the first ground in Mison (Mison, Kindimindi, GPT v Belmorgan). The test of what is a significant alteration is incapable of precise definition, but requires a consideration of the specific facts of a case (Mison) requiring evaluative judgment (Kindimindi), and are questions of degree (GPT v Belmorgan). The extent to which variation to a development as proposed in a DA is allowed may depend on requirements for public notice and the rights of persons affected to object. This suggests that, if a variation is likely to impact the public, it is less likely to be within the scope allowed under Mison (GPT v Belmorgan). It is not determined whether, in seeking to determine if a consent significantly alters a DA, one examines the significance of the change when viewed in relation to that part of the development altered, or whether it is viewed in relation to the development as a whole (Kindimindi). Principle 5: In relation to the second ground of invalidity under Mison:

• A lack of finality and certainty relates to matters of substance not of form (Mison). • An important aspect of the development is one in relation to which a later decision could alter the proposed development in a fundamental regard, or which was of critical importance in the decision to grant consent, being a highly contested issue (Mison, Lend Lease Management). • A condition may be uncertain, but it may be final in that it does not require a further decision either by the consent authority or a third party. Mere imprecision or uncertainty is not a ground of invalidity. • It will only be invalid if it is outside the scope of conditions permitted under the EPA Act, primarily s 80A (Kindimindi). • A development consent would not comply with the second ground in Mison if a condition is devoid of meaning and permitted another person to add additional conditions (Lend Lease Management). • It is common and inevitable that a development consent contains conditions providing for some aspect of the development to be left for later decision by either the consent authority or a delegate. A development consent cannot finally resolve all aspects of a development with absolute precision (Scott v Wollongong, Winn). • Where a development consent has finally resolved the particular use of the land, specific character of the building, and the circumstances of the use have been substantially prescribed, that demonstrates finality (Scott v Wollongong). • Matters that are ancillary to the use may be reserved for later determination, as they are ancillary to the core purpose of the application and will not alter the development in a fundamental respect or result in a development which is significantly different (Scott v Wollongong). • The second ground in Mison is qualified by the provisions of s

80A(4) of the EPA Act which is intended to allow conditions to be formulated in a particular manner. It assumes that the condition requires a change in a development, which may take a number of forms at the discretion of the applicant, provided it complies with the criteria against which it is to be assessed. Thus, s 80A(4) permits an initial lack of certainty and finality. An outcome should be understood as a broad objective (as opposed to a result), but the criteria against which they are assessed must be clear. Thus, the condition needs to sufficiently identify the result sought, and to leave the means of achieving it to the proponent (Kindimindi, GPT v Belmorgan). This is contrary to the conclusion that s 80 and s 80A provide exceptions to the principles in Mison (The Warehouse Group). Principle 6: Where a development consent fails to comply with either of the two grounds in Mison, the consent as a whole is invalid (Mison, Lend Lease Management). If a particular condition is invalid based upon the second ground in Mison, that condition is not capable of severance from the remainder of the consent, but rather the entire consent is invalid (Powell JA in Winn, contra Stein JA in Winn).

DEFERRED COMMENCEMENT CONSENTS AND STAGED DEVELOPMENT CONSENTS ¶57-010 Additional types of development consents which may be issued by a consent authority In addition to a standard development consent, there are two further types of development consents which may be issued by a consent authority. These are: (1) deferred commencement consent, and (2) staged development consent. Deferred commencement consents are provided for in s 80(3) of the Environmental Planning and Assessment Act 1979 No 203 (NSW)

(EPA Act) which provides as follows: “80 Determination … (3) ‘Deferred Commencement’ consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.” The granting of a deferred commencement consent is at the discretion of the consent authority, and is not required to be sought by the applicant. A deferred commencement condition provides that a consent does not commence to operate (as provided in s 83) until the applicant has satisfied the consent authority in accordance with the regulations regarding any matter specified in the condition. Clause 95 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) provides, in relation to a deferred commencement consent, that: • the development consent must be clearly identified as a deferred commencement consent • the deferred commencement consent must clearly distinguish between the matter in relation to which the consent authority must be satisfied before the consent can operate and any other conditions • the consent authority may, but is not required to, identify the time period within which the applicant must produce evidence to satisfy the consent authority in relation to the required matter, and • where the applicant provides evidence to the consent authority, the consent authority must advise the applicant whether or not it is satisfied as to the required matter. If the applicant receives no

advice within 28 days of providing the evidence, the consent authority is taken to not be satisfied.

¶57-020 Deferred commencement consent Where a deferred commencement consent is issued, the consent lapses if the applicant does not satisfy the consent authority in relation to the required matter within five years of the grant of consent or, if a shorter period is specified, within that shorter period (s 95(6)). In addition to the applicant’s right of merit appeal in relation to the consent authority’s decision under s 97(1), the applicant has a right of merit appeal to the Land and Environment Court of NSW (NSWLEC) against the decision of the consent authority to be not satisfied on a deferred commencement matter within six months of the notification of the consent authority’s failure to be satisfied (s 97(3)). It is important to note that the decision to grant a development consent as a deferred commencement consent is one for the consent authority and does not require agreement by the applicant. The original underlying policy behind the deferred commencement consent provisions is to enable the granting of a consent where some aspect needs to be satisfied, which is not under the control of the applicant but a third party over which the applicant has no control, so as to not disadvantage the applicant by reducing the lapsing period of the consent while the required aspect is resolved. An example would be a deferred commencement consent condition, providing that the consent shall not operate until the applicant satisfies the council that the water supply authority has installed capacity to provide the land with water and sewerage services. It is, and always has been, possible to grant a consent subject to a condition such as “the development shall not commence until the applicant has satisfied the council that …”. But where these matters are simply a condition of the consent, the applicant has to resolve these matters and then commence the development within the lapsing period. By using a deferred commencement consent condition, the applicant is not disadvantaged by any reduction in the lapsing period while the matter is resolved. However, in its operation, deferred commencement

consent conditions are regularly included regarding matters wholly within the control of the applicant.

¶57-030 Staged development consent In contrast, a staged development consent may only be granted where the applicant lodges a staged development application (DA) or requests a DA to be treated as a staged DA (s 83B(2)). Staged DAs have also been discussed in Chapter ¶45. A staged DA is defined in s 83B(1) as follows: “83B Staged development applications (1) … a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.” Thus, a staged DA has two components: (1) concept proposals for the development of a site, with detailed proposals for separate parts of the site to be subject to a later DA, and (2) if the applicant so wishes, detailed proposals for the first stage of development. However, the applicant may not include detailed proposals for the first stage, but may leave all stages for later DAs. The effect is to provide an “approval in principle”, but subject to a further DA. As indicated in Chapter ¶45 on staged DAs: • A staged development consent does not authorise the carrying out of development unless a subsequent development consent has been obtained, or the original application has the requisite details for part of the site and consent has been granted for a first stage without the need for any further consent (s 83B(3) and (4)).

• Where a staged development consent remains in force, any subsequent DAs are required to be determined in a manner not inconsistent with the staged development consent (s 83D(2)). Thus, the consent authority is bound as to how it can determine subsequent DAs when a staged development consent is in force. The one exception to this would arise when the development is then prohibited by an Environmental Planning Instrument (EPI) before the subsequent DAs are determined.

¶57-040 Provisions — deferred commencement consents and staged development consents The provisions relating to deferred commencement consents and staged development consents were introduced into the EPA Act by the Local Government (Consequential Provisions) Act 1993 No 32 (NSW) (1993 Amendments). When originally introduced, however, deferred commencement consents were titled “in principle” consents in the then s 91AA of the EPA Act.1 However, the title was changed to “‘deferred commencement’ consents” by Sch 19 of the Local Government Legislation (Miscellaneous Amendments) Act 1994 No 44 (NSW), but otherwise the provisions were unchanged. The provisions relating to staged development consents were added to the EPA Act at the same time as those relating to “‘in principle’ consents” with the addition of what was then s 91 of the EPA Act. In the Second Reading Speech for the Local Government (Consequential Provisions) Bill in the Legislative Assembly on 27 November 1992, the Minister for Local Government, Gerry Peacocke MP, provided little elucidation on the NSW Government’s intentions. He said: “This bill creates a power in the planning legislation to grant an approval subject to another approval or a staged approval process. It will provide applicants and consent authorities with more flexibility to deal with complex or master planned projects. This provision addresses a significant issue identified in both the planning review and the review of the Local Government Act.”2

No reference was made to the “‘in principle’ consents” in the Minister’s Second Reading Speech. Footnotes 1

See Local Government (Consequential Provisions) Act 1993 No 32 (NSW), s 4 and Sch 2.

2

NSW Parliament, 27 November 1992, Legislative Assembly Hansard, p 10397–10398.

¶57-050 Impact of the 1997 Amendments The introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments), which replaced the pre-existing Pt 4 of the EPA Act with a new Pt 4, included the deferred commencement consent provisions in s 80(3). It did not include the machinery provisions in the former s 91AA(2)–(6). These machinery provisions are now included in cl 95 of the EPA Regulation. However, the substance of the provisions regarding deferred commencement consents has remained the same since their introduction in 1993, save for the name change from “In Principle” consents to “Deferred Commencement” consents. However, the provisions regarding staged development consents have been materially changed since their introduction in 1993. In its initial form, it was a power for a consent authority in determining a DA, and a staged development consent could be granted in relation to a DA whether or not this was sought by the applicant. Moreover, in its initial form, the provisions regarding staged development consents contained no requirement that a consent authority issue subsequent development consents consistent with the staged development consent. The initial provisions regarding staged development consents were carried forward in the 1997 Amendments in s 80(4) and (5).

¶57-060 Impact of the 2005 Amendments The provisions relating to staged DAs in their current form were inserted in the EPA Act by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (the 2005 Amendments) (s 3 and Sch 3[3] and [4]). The changes provided as follows: • the power for a consent authority to grant a staged development consent was limited to where a staged DA had been lodged by the applicant, as opposed to a power applying to all DAs whether sought or not by the applicant. • where an EPI had required the making of a Development Control Plan (DCP) prior to a particular development being undertaken, that obligation could be satisfied by lodging a staged DA and obtaining consent. • a staged development consent was given a level of status in relation to subsequent DAs by requiring a consent authority to issue subsequent DAs not inconsistent with the staged development consent. In his Second Reading Speech in relation to the 2005 Amendments, the Minister for Infrastructure and Planning, Mr Craig Knowles MP, stated:3 “Schedule 3 to the bill provides for the existing provisions in the Act for staged approvals to be augmented with the introduction of procedures for the lodgment, assessment and approval of stated development applicants. This will enable developers to stage complex developments with clear procedures for obtaining approvals for the development. Section 83B provides that a staged development application may set out an overview of the proposal across the whole site, with the details of each separate component of the development to be subjected to subsequent development applications. Alternatively, a first stage development application may include both the concept for the entire site and a

detailed proposal for the first component of the development. Only the applicant can request that a staged development application be lodged. Where a development control plan is required for a site by an environmental planning instrument, section 83C allows a staged development application to be prepared and approved as an alternative. A staged development application is subject to the provisions of integrated approvals and designated development, and requirements prescribed by the regulations. While any consent on a staged development application remains in force, a determination on any further development applications for that site cannot be inconsistent with the staged approval.” The judicial consideration of deferred commencement consents and staged development consents is now considered. Footnotes 3

NSW Parliament, 27 May 2005, Legislative Assembly Hansard, p 16332 ff.

¶57-070 Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council — deferred commencement consent In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 (Canyonleigh), Bignold J in the NSWLEC heard a challenge to the validity of a deferred commencement development consent granted for a major tourist development at Canyonleigh in the Southern Highlands of New South Wales. One of the grounds of challenge was that the development consent deferred for later determination important aspects of the development which may result in fundamental changes to the approved development. This ground relates to the second ground in Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73

LGRA 349 (Mison). All of the conditions alleged as causing invalidity on the second ground in Mison were expressed as deferred commencement conditions in the consent. Bignold J held at p 309–311 in relation to this ground as follows: “In my judgment the applicant’s argument fails because it ignores the true effect of s 91AA of the EP&A Act and of the development consent which was granted pursuant to that section. Section 91AA(1) provides as follows: ‘A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.’ In its particulars in support of this ground of challenge the applicant relies upon the terms of conditions 1(a), 1(e), 1(f) and 1(j) (all but the last mentioned condition which relates to the dam relate to the proposed water and sewerage systems) imposed on the grant of development consent. All these conditions are expressed to be ‘deferred commencement conditions’ and accordingly their effect must be determined by reference to the enabling power conferred by s 91AA. The applicant’s argument in focussing on familiar authority concerning the need for certainty and finality in a development consent (Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349; Scott v Wollongong City Council (1992) 75 LGRA 112) tended to ignore or at least seriously downplay the effect of s 91AA which was introduced into the EP&A Act by Act No 32 of 1993, enacted after those cases were decided and obviously aware of them, and, in my judgment, operating despite them. However when addressing the effect of s 91AA the applicant called in aid the dictum of Talbot J in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, Land and

Environment Court, NSW, Talbot J, No 10649/96, 11 December 1996) that: ‘s 91AA was not to be regarded as a panacea to overcome any unresolved issue at the time a development consent is granted.’ The applicant also relies upon the following additional observations of Talbot J in Remath Investments: ‘Section 91AA contemplates that, in some cases, specific works may be required as a condition precedent to the commencement of development or that a formal approval to some specific aspect of the approved development be forthcoming from another authority or even a council officer, such as an engineer, before the consent can be acted upon in full. The section is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the concept of the development which may in turn give rise to impacts that require consideration under s 90 of the EP&A Act … It is surely self evident that s 91AA was not intended to allow the consent authority to leave unresolved issues, known and unknown, in respect of the impact of the development and thus for future determination in the light of the ultimate design.’ I think it is fair to say that these powerful observations must, in the light of the outcome in the case, be regarded as obiter dicta, which with great respect I am unable to fully embrace, and would not apply to the facts of the present case. As I have earlier noted s 91AA was introduced into the EP&A Act by the Local Government (Consequential Provisions) Act 1993 (NSW) (Act No 32) [p 310] and mirrored the provisions of s 95 of the Local Government Act 1993 (NSW). Both sections originally referred to the relevant consent or approval granted under the sections as ‘an in principle consent’ and ‘an approval in principle’. The ‘in principle’

terminology was replaced in both sections by the current terminology ‘deferred commencement’ by the Local Government Legislation (Miscellaneous Amendments) Act 1994 (NSW) (No 44) the explanatory note to which indicates that the purpose of the change was merely a ‘re-titling’ of the sections. In my judgment s 91AA is readily capable of yielding an ‘in principle consent’, the quality of which I shall attempt to describe, if not define. The notion of an ‘in principle’ development consent had not previously been recognised, stricto sensu, in NSW town planning law: see Rocca v Ryde Municipal Council (1961) 7 LGRA 1; Edgar v Lane Cove Municipal Council (1961) 7 LGRA 45; Attorney-General v Bristva Pty Ltd (1964) 10 LGRA 348 and Loretta Constructions & Investments Pty Ltd v Gosford Shire Council [1972] 2 NSWLR 340; (1972) 25 LGRA 294. However something akin to an approval in principle or to ‘outline planning permission’ under United Kingdom town planning legislation was recognised by Jacobs P (as he then was) in Holroyd Municipal Council v Mangano [1972] 2 NSWLR 439; (1972) 26 LGRA 357 relying upon the High Court’s decision in Gange v Sullivan (1966) 116 CLR 418. I refer to these earlier decisions for the possible guidance they may provide as to the true nature and content of a deferred commencement consent that s 91AA of the EP&A Act specifically empowers to be granted. In my opinion they provide some helpful guidance as to the nature and scope of a ‘deferred commencement consent’. In my opinion the range or type of ‘matter’ that may be specified in a deferred commencement condition is obviously and deliberately wide and I do not think it either necessary or wise to attempt to exhaustively define the scope of such matters, other than to say that they would, in my judgment, include matters such as the ultimate or detailed design of approved buildings and the like, in much the same manner as matters may be reserved under an ‘outline planning permission’ granted under United Kingdom

town planning legislation referred to in Mangano. In my judgment, the elucidation of the matters that might properly be the subject of deferred commencement conditions is best left to be developed on a case by case basis of judicial exegesis. In my judgment the applicant has not established that the conditions of the development consent that it has particularised exceed the legitimate bounds for the imposition of deferred commencement conditions as expressly provided for by s 91AA. While it is true that s 91AA does not attempt to define the bounds for deferred consent conditions (being content to employ generalised words ‘any matter’ of wide import) this feature of s 91AA, in my opinion, does not justify a reading down of the power so conferred. On the contrary the onus rests upon the applicant who challenges the validity of such conditions to establish that they travel beyond the power conferred by s 91AA and the Applicant has not discharged that onus in the present case. Before leaving this ground of challenge and s 91AA I should also say that s 91AA in my judgment sanctioned the imposition of conditions 1(e) and 1(j) (notwithstanding the imprecision or uncertainties with those conditions) and that in consequence there is no scope for the applicant’s argument that the Council committed some jurisdictional error in failing to determine, before [p 311] granting the development consent, whether the proposed development was ‘designated development’ as alleged by the applicant. Accordingly this ground of challenge fails.” Thus, Bignold J in Canyonleigh held that the terms of a deferred commencement condition in a deferred commencement consent were not required to comply with the principles in Mison, but that were akin to an “in principle” approval or an “outline planning permission” as provided under the UK law. However, Bignold J did not elucidate the lawful scope of what could be contained in a deferred commencement condition.

¶57-080 Cameron v Nambucca Shire Council — challenge to the validity of a deferred commencement consent In a judgment delivered on the same day as Bignold J gave judgment in Canyonleigh, Talbot J in the NSWLEC held the opposite to Bignold J. That case is Cameron v Nambucca Shire Council (1997) 95 LGRA 268 (Cameron v Nambucca), and involved a challenge to the validity of a deferred commencement consent for a resort style development at Scotts Head on the Mid North Coast of New South Wales. The development consent contained a deferred commencement consent condition requiring the completion of a traffic study. One of the claims made was that Council had failed to take into account traffic impacts and that the consent did not meet the requirement of finality and certainty as required under the second ground in Mison. Talbot J held at p 275–276, noting the references are to the EPA Act as it existed after the 1993 Amendments, but before the 1997 amendments and hence, references to s 90 are to the predecessor of the current s 79C: “Section 91AA does not enable the consent authority to defer consideration of any matter it is required to take into consideration pursuant to s 90. It is only after s 90 matters have been properly considered that the consent authority is in a position to nominate the matters as to which the applicant must satisfy the consent authority before the consent may operate. … The deferring of consideration of a matter which a consent authority is required to consider pursuant to s 90 of the Act is not something which is authorised by s 91AA. Section 91AA contemplates that some act must be performed before the consent operates. Specific works may be required as a prerequisite to the commencement of development. Those works may be on or off the site and either carried out by the applicant for development consent or a third party. The consent authority may

require concurrence or confirmation from another authority or person, with the appropriate expertise or power, that the council’s [p 276] assessment of a particular aspect of the development is the correct one. Section 91AA is not, in my opinion, a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91. A condition that the consent is not to operate until the consent authority is satisfied as to any matter does not mean that the consent is not a final one. A deferred commencement consent is a final consent when it is granted, even though the date from which the consent operates must not be endorsed on a notice, as required by s 92(3)(a), until the applicant satisfies the consent authority as to the matters specified in the condition. However, s 92(3) does not remove the requirement to show the date of the determination on the notice in accordance with s 92(2). The provisions of s 92 merely confirm the approach I have taken to s 91AA on the question of finality. Section 91(3A) is not directed to the problem created by condition 4(a). The specific aspects of development considered to be ancillary to the core purpose of the development are to be regarded in the context of the observations made by Samuels AP, as he then was, in Scott v Wollongong City Council at p 119. Council’s own officers and the local traffic committee recognise that the traffic impacts of the development could not be determined in the absence of a Traffic Impact Study when reporting to Council on the development. The error occurred when the Council followed the recommendation of its officers that the Traffic Impact Study should be submitted prior to any works commencing on the site. The proper course in the circumstances is for Council to defer final consideration of the application for development consent until the Traffic Impact Study has been prepared and submitted for its consideration. It is not enough for the respondents to point out that condition 4(a) was addressed to the ‘total development’ and that the Traffic Impact Study was intended to consider the traffic impacts of all four stages of the

development before the consent operated in respect of Stage 1(a). Although that construction may be quite correct, the traffic impacts arising from Stage 1(a) were nevertheless left for consideration in the Traffic Impact Study rather than at the time of determination of the application. The contention by the applicant that contrary to ss 90 and 91AA of the Act, condition 4(a) deferred consideration of a matter which council was required to undertake before granting consent is correct and I make that determination.” Thus, Talbot J in Cameron v Nambucca held that a deferred commencement condition is not a means of avoiding a proper condition of the heads of consideration for a DA nor was it a means of avoiding the need to determine a DA with the required finality and certainty provided in the second ground in Mison.

¶57-090 Designlink International v Baulkham Hills Shire Council In Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 218, Talbot J in the NSWLEC addressed the divergence between himself and Bignold J in relation to whether a deferred commencement consent (now dealing with the past 1997 EPA Amendment Act) required that the grant of development consent is final. Talbot J held at paragraphs [9]–[13]: “9 In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294, Bignold J questioned my narrow approach to the effect of s 91AA in Remath Investments (No 6) Pty Ltd v Botany Bay Council (No 2) (unreported 10649 of 1996 11 December 1996). On the same day that judgment in Canyonleigh was delivered I reinforced my earlier view in Remath, by discounting the prospect of s 91AA being ‘a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91’, in Torquil Cameron v Nambucca Shire Council (1997) 95 LGERA

268 at 276. 10 In Canyonleigh Bignold J made reference to the historical approach to the notion of an ‘in principle’ development consent in New South Wales and ‘outline planning permission’ under United Kingdom town planning legislation in order to seek possible guidance as to the true nature and content of a deferred commencement consent pursuant to s 91AA of the EP&A Act. 11 Unfortunately, and with due respect to his Honour, I cannot obtain any assistance from the earlier decisions referred to by his Honour (at 310) in the context of s 80(3). In my view there is no part of s 80(3) that allows for a deferral of the decision to grant consent. There are no words to suggest the concept of an indicative decision. 12 The mechanism introduced by s 91AA, and continued by s 80(3) and the Regulation, is that although the consent authority is satisfied that an applicant for development consent is entitled to a consent, that consent is not to operate until some matter external to the subject matter of the consent is satisfied. 13. I agree with Bignold J that ‘the elucidation of the matters that might properly be the subject of deferred commencement conditions is best left to be developed on a case by case basis of judicial exegesis’. However, the evolution in my opinion, and with respect to his Honour, must occur within constraints which require the grant of the development consent to be final.”

¶57-100 Weal v Bathurst City Council — challenge to the validity of a development consent This judicial divergence on whether a deferred commencement consent is subject to, or an exception from, the second ground in Mison, was resolved by the NSW Court of Appeal in Weal v Bathurst City Council [2000] NSWCA 88 (Weal) decisively in favour of the view expressed by Talbot J in Cameron v Nambucca. Weal was an appeal in relation to a challenge to the validity of a development consent for a rail freight terminal at Kelso in Central

Western NSW. The Council granted a deferred commencement consent with a deferred commencement condition providing that the consent shall not operate until the applicant satisfies Council that all relevant approvals by the Environment Protection Authority are in place and that certain contamination reports are prepared. Giles JA (with whom Priestley JA agreed and, in relation to this matter, only Mason P also agreed at paragraph [5]) held at paragraphs [92]–[96]: “92 The facility of a deferred commencement consent, introduced into the EP&A Act in 1993 in s 91AA and taken up by the Council, does not overcome the inference. 93 In Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2)(11 December 1996, unreported) Talbot J observed that s 91AA was not intended to allow the consent authority to leave unresolved and for future determination issues, known and unknown, in respect of the impact of the development. In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 309 Bignold J felt unable to embrace this, and regarded s 91AA as capable of yielding an ‘in principle’ consent so that matters such as ultimate or detailed design could be reserved: his Honour thought that what could be the subject of deferred commencement conditions should be developed on a case by case basis. In Cameron v Nambucca Shire Council (1997) 95 LGERA 268, delivered on the same day as Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council, the consent authority had granted a deferred commencement consent conditioned upon a satisfactory traffic impact study. In holding that the consent authority had not taken traffic into consideration as required by s 90(1)(j) of the EP&A Act Talbot J gave effect to what he had said in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) … 94 I respectfully agree with Talbot J that s 91AA did not free the consent authority from the obligation to consider all relevant matters as required by s 90(1). Section 91AA enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation

of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration. The vice in the present case is that, for the reasons I have given, I do not think that there was the proper consideration. 95 Some aspects of the development might have been left for later resolution, consistently with consideration in accordance with s 90(1) of the EPA Act. The landscape plan to which condition 51 referred is an illustration, and such a condition is authorised by s 91(3A) and possibly apart from that provision (see Scott v Wollongong Shire Council (1992) 75 LGRA 112 at 117–8; Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 628–30). But the Council’s immediate and own consideration of the noise impact of the development, including the means of controlling it, was important. The Council had to weigh up all relevant matters calling for consideration and, having done so, determine the development application. Unlike the EP&A, its concerns went well beyond protection of the environment, for example to the matters in paragraphs (d) and (r) of s 90(1) — as the letter of 19 February 1998 to the EP&A pointed out. How could it exercise its function without such consideration of the critical issue of noise as would permit it to balance the noise impact, as controlled, with all other relevant matters? If it left noise impact to the EP&A approval process, it did not know what to put in the scales. 96 There would have been nothing wrong, in an appropriate case, in a consent authority including as a condition of a consent that the applicant obtain (in the words of the Council’s letter of 19 February 1998, describing its practice) ‘the necessary licences/approvals from the EP&A’. But that could only have followed consideration, in accordance with s 90(1), of the matter to which the licence or approval related, with the obtaining of the licence or approval where noise impact was in question a reasoned means of controlling, or contributing to controlling, reasoned understanding of the noise impact. And the condition

could, depending on the circumstances as a whole, suggest that the consent authority had failed to discharge its duty under s 90(1), see Jungar Holdings Pty Ltd v Eurobodalla Shire Council.” Conclusions The following conclusions may be derived from Weal: • A deferred commencement consent condition does not relieve a consent authority of its requirement to properly consider the heads of consideration under s 79C. • A deferred commencement consent condition does not allow a consent authority to leave unresolved and for future determination issues, known or unknown, regarding the impact of the development. Hence, compliance with the second ground in Mison applies to a deferred commencement consent and condition.

¶57-110 Casa v City of Ryde Council In Casa v City of Ryde Council [2009] NSWLEC 212 (Casa v Ryde), Pepper J in the NSWLEC heard an application for a declaration regarding the date of lapsing of a deferred commencement development consent for a villa house development at Gladesville. Council granted a deferred commencement condition requiring an increase in the site set back adjacent to a driveway, with details including amended architectural plans and a landscape plan to be submitted for the satisfaction of Council, and a landscaping plan to be submitted with the construction certificate. Amended architectural plans, with no separate landscape plan, but with a notation as to landscaping on the architectural plans were submitted to Council, and Council advised in August 2002 that the first part of the deferred commencement condition had been satisfied and that the consent was operative from that date. When a construction certificate was sought in 2004, Council advised that the second part of the deferred commencement conditions had not been satisfied. Amended landscape plans were then provided in July 2004. Council contended the consent had become operative in 2002 (and as a result, lapsed in

2007) while the landowner contended the consent became operative in 2004 (and as a result, would lapse in 2009). The landowners argued that the satisfaction of the consent authority in relation to the deferred commencement condition was a jurisdictional fact, in relation to which the court could review and redetermine. Pepper J held the issue of the consent authority being satisfied in relation to a deferred commencement condition was not a jurisdictional fact. After reviewing authorities on jurisdictional facts, she held at paragraphs [64], [70] and [72] as follows: “64 Having regard to the propositions and decisions referred to above, a proper construction of s 80(3) of the EPAA reveals the existence of a ‘particular kind of jurisdictional fact’ only in the limited sense described in Timbarra (at [42]), namely, that the existence of the mental state of the council (its satisfaction) is a jurisdictional fact which enlivens the exercise of statutory power rendering the development consent operational. Judicial review by this Court is accordingly confined to determining whether the mental state existed and if so, whether that mental state was reasonably open on the facts in the Wednesbury unreasonableness sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It does not permit the Court to inquire into the existence of the facts underlying the achievement of the requisite mental state. … 70 Finally, there is nothing in the language of s 80(3) of the EPAA that prohibits any conduct on the part of the consent authority if the mental state is not achieved (the consent simply does not become operational because the condition is not met), nor is guidance given as to how, if such a condition is imposed, the mental state is attained. These matters also do not support the imposition of a jurisdictional fact in s 80(3). … 72 … The source of the council’s power to grant the development consent is statutory. The source of the council’s power to grant a

conditional deferred consent is that contained in ss 80(1), (3) and 80A(1)(h) of the EPAA. Provided the council acts within the ambit of the conferral of power it will be acting lawfully and this Court cannot interfere with its decision. If the statute does not grant power subject to the establishment of a jurisdictional fact then the council cannot do so by way of resolution. It is the language of the statue that establishes the existence of a jurisdictional fact and not the language of the council resolution.” Pepper J then dismissed submissions that the Council’s state of satisfaction was formed in the absence of evidence and it breached Wednesbury unreasonableness. Conclusions The following conclusions may be derived from Casa v Ryde: • A decision by a consent authority that it is satisfied in relation to a deferred commencement condition is not a jurisdictional fact. The role of the courts is limited to whether the mental state of satisfaction existed and whether that mental state was reasonably open to it. • A jurisdiction fact can only be created by a statute and not by a condition of a development consent.

¶57-120 Staged development consents A staged DA is required to set out “concept proposals for the development of a site” and separate DAs are required for “detailed proposals for separate parts of the site” under s 83B(1). The staged DA may (but is not required to) set out detailed proposals to the first stage of development in relation to which a consent authority may grant consent, without the need for any further consent (s 83B(3)). Before development may be carried out pursuant to a staged development consent, there must be sufficient detailed proposals for the first stage or a subsequent development consent (s 83B(3)). Thus, the first stage in the staged DA (where detailed proposals are included) must comply with the principles in Mison, as would any

subsequent development consent in relation to the proposal. However, because a staged DA addresses only “concept proposals” with “detailed proposals” to follow, the provisions on s 83B provide an exception to the second ground in Mison. The question is — what level of information is required for “concept proposals” under s 83B? Some assistance as to the meaning of “concept proposals” in the staged DAs provisions may be gleaned from judicial consideration of the meaning of “concept plans” under the now repealed Pt 3A of the EPA Act.

¶57-130 Walker v Minister for Planning In Walker v Minister for Planning [2007] NSWLEC 741 (Walker), Biscoe J held at paragraphs [185]–[189]: “185 In my opinion, as a matter of construction, the finality principle does not apply to a concept plan approval under s 75O in Part 3A of the EP&A Act for the following reasons. 186 First, a ‘concept’ is a ‘general notion’: Australian Oxford English Dictionary (1999). Under Part 3A of the EP&A Act a concept plan only has to ‘outline the scope of the project’ and any ‘development options’ and a ‘detailed description of the project is not required’: s 75M(2). The legislation does not contemplate that a concept plan has to have the finality of a development the subject of a subsequent project approval. Lack of finality is inherent in the notion of a concept plan. 187 Secondly, the finality principle, as developed, is concerned with conditions of development consents under Part 4. It was developed as a matter of statutory construction of a provision antecedent to s 80 in Part 4, and has been substantially modified by the later enactment of s 80A. In Part 3A there is no provision for conditions of a concept plan approval. Rather, there is a power under Part 3A for ‘modifications of the project’: s 75O(4). No such power appears in Part 4. The nearest provision in Part 4 is s 80A(1)(g) (introduced after Mison), which permits a condition which modifies ‘details’ of a development the subject of a

development application, as distinct from a condition which modifies the development as a whole. 188 Thirdly, if there is scope for the application of the finality principle in Part 3A, it more naturally belongs to the next phase of project approval, which unlike a concept plan approval, may be granted on conditions. In that regard s 75J(4) acknowledges the distinction between modifications of the project and conditions of approval: ‘A project may be approved under this part with such modifications of the project or on such conditions as the Minister may determine’. 189 Fourthly, in my opinion, the modifications in issue were permitted under the provisions of Part 3A, particularly under s 75O(4) or 75P(1)(a), …” The decision of Biscoe J in Walker was subject to a successful appeal to the NSW Court of Appeal (see Minister for Planning v Walker [2008] NSWCA 224), although this aspect of the judgment was not overturned.4 While Walker relates to a very different statutory context, the first and third reasons of Biscoe J appear to be applicable to staged DAs, namely: • In requiring a staged DA to address “concept proposals for the development of a site”, the legislation does not contemplate that a staged development consent has the finality of detailed proposals or a subsequent development consent. A lack of finality is inherent in the notion of concept proposals. • The scope for the application of finality principles in a staged development consent belongs in relation to the detailed proposals of the first stage, or subsequent development consents, as required. In addition to the test of what is legally required in terms of content in the concept proposals of a staged DA, there is the practical issue of what is required in terms of content to have reasonable prospects of obtaining an approval on the exercise of merit discretion. Footnotes

Footnotes 4

In Pittwater Council v Minister for Planning [2011] NSWLEC 162, Pain J found it unnecessary to determine whether or not to follow Biscoe J in Walker see paragraphs [70]–[71].

¶57-140 Anglican Church Property Trust v Sydney City Council — formulation of a planning principle In considering a merit appeal in relation to a DA seeking a staged approval under the pre-2005 Amendments provisions for the St John’s Church site in Darlinghurst, two Commissioners of the NSWLEC formulated a “planning principle” for the Court in relation to staged DAs in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 at paragraphs [58]–[59] as follows: “58 We accept that multi-stage applications are useful for large or controversial projects as they provide the applicant with certainty about the major parameters of a proposal before it embarks on the expensive exercise of preparing detailed drawings and specifications for a development application. The critical issue is: how much detail should be provided in the Stage 1 application as against the Stage 2 application? 59 The principle we have adopted is that in multi-stage applications the information provided in Stage 1 should respond to all those matters that are critical to the assessment of the proposal. Where traffic generation is the critical issue, Stage 1 should include information on the precise number of cars accommodated on a site. Where the floor space is critical, Stage 1 should include the precise FSR. Where the major issue is the protection of vegetation, the footprints of the proposed buildings may be sufficient. In the proposal before us, however, the two major issues are the impact on the heritage-listed Church and the heritage streetscape. In our opinion, two building envelopes, within which buildings of any shape or design might emerge, are

not sufficient to make a proper assessment.” Whether this “planning principle” is of any actual utility is a matter of speculation. Further, the question of what are matters that are critical to the assessment of a proposal may differ greatly between the parties and hence, the utility of referring to these is equally questionable. In relation to the determination of subsequent DAs where a staged development consent remains in force, the consent authority’s powers are limited in that any determination “cannot be inconsistent” with the staged development consent. The test here is framed as a double negative. However, assistance in the meaning of the test may be gained from the earlier discussion of the meaning of consistency in relation to objectives provisions in an EPI.

¶57-150 Principles regarding deferred commencement consents and staged development consents The key principles derived from the discussion on deferred commencement consents and staged development consents are as follows: Principle 1: A deferred commencement is a development consent which does not commence to operate until the applicant has satisfied the consent authority regarding any matters as specified in the deferred commencement condition (s 80(3) of EPA Act). Principle 2: A consent authority may grant a deferred commencement consent in determining any DA, whether or not this was sought or agreed to by the applicant (s 80(3) of EPA Act). Principle 3: A deferred commencement consent is required to meet the following: • The development consent must be clearly identified as a deferred commencement consent. • The deferred commencement consent must clearly distinguish between the matter in relation to which the consent authority must be satisfied before the consent can operate and any other

conditions. • The consent authority may, but is not required to, identify the time period within which the applicant must produce evidence to satisfy the consent authority in relation to the required matter. • Where the applicant provides evidence to the consent authority, the consent authority must advise the applicant whether it is satisfied as to the required matter. If the applicant receives no advice within 28 days of providing the evidence, the consent authority is taken to not be satisfied in which case the consent does not commence to operate. (Clause 95 EPA of Regulation) Principle 4: Where a deferred commencement consent is issued, the consent lapses if the applicant does not satisfy the consent authority in relation to the required matter within five years of the grant of consent or, if a shorter period is specified, within that shorter period (s 95(6) of EPA Act). Principle 5: Where a deferred commencement consent has been issued, in addition to the applicant’s right of merit appeal in relation to the consent authority’s decision, the applicant has a right of merit appeal to the NSWLEC against the decision of consent authority to be not satisfied on a deferred commencement matter within six months of the notification of the consent authority’s failure to be satisfied (s 97(3) of EPA Act). Principle 6: A deferred commencement consent condition does not relieve a consent authority of its requirement to properly consider the heads of consideration under s 79C. A deferred commencement consent condition does not allow a consent authority to leave unresolved and for future determination issues, known or unknown, regarding the impact of the development. Hence, compliance with the second ground in Mison applies to a deferred commencement consent and condition (Weal and Cameron v Nambucca, contra Canyonleigh).

Principle 7: A decision by a consent authority that it is satisfied in relation to a deferred commencement condition is not a jurisdictional fact. The role of the courts is limited to whether the mental state of satisfaction existed and whether that mental state was reasonably open to it. A jurisdictional fact can only be created by a statute and not by a condition of a development consent (Casa v Ryde). Principle 8: An applicant may lodge a staged DA which has two components: (1) concept proposals for the development of a site, with detailed proposals for separate parts of the site to be subject to a later DA, and (2) if the applicant so wishes, detailed proposals for the first stage of development. However the applicant may not include detailed proposals for the first stage, but may leave all stages for later DAs. (Sections 83A and 83B of EPA Act) Principle 9: A staged development consent does not authorise the carrying out of development unless a subsequent development consent has been obtained, or the original application has the requisite details for part of the site and consent has been granted for a first stage without the need for any further consent (s 83B(3) and (4) of EPA Act). Principle 10: Where a staged development consent remains in force, any subsequent DAs are required to be determined in a manner not inconsistent with the staged development consent (s 83D(2) of EPA Act). Thus, the consent authority is bound as to how it can determine subsequent DAs when a staged development consent is in force. The one exception to this would arise when the development is then prohibited by an EPI before the subsequent DAs are determined. Principle 11: The power for a consent authority to grant a staged development consent is limited to where a staged DA had been lodged by the applicant, as opposed to a power applying to all DAs, whether sought or not by the applicant (s 83A and 83B of EPA Act).

Principle 12: In requiring a staged DA to address “concept proposals for the development of a site”, the legislation does not contemplate that a staged development consent has the finality of detailed proposals or a subsequent development consent. A lack of finality is inherent in the notion of concept proposals. The scope for the application of finality principles in a staged development consent belongs in relation to the detailed proposals of the first stage or subsequent development consents as required (Walker). Principle 13: Where an EPI requires the making of a DCP prior to particular development being undertaken, that obligation can be satisfied by lodging a staged DA and obtaining consent (s 83C of EPA Act).

CONDITIONS OF CONSENT ¶58-010 Imposition of conditions on a development consent Under s 80(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), a consent authority is required to determine a development application (DA) by granting consent to the DA either unconditionally or subject to conditions, or to refuse consent to the DA. The imposition of conditions on a development consent is then provided for in s 80A which provides as follows: “80A Imposition of conditions (1) Conditions-generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development

application relates, or (c) it requires the modification or cessation of development (including the removal of building and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of building and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F. (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been

carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. (5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.” Additionally, s 80A(6) authorises the imposition of a condition requiring security in relation to potential damage to property of the consent authority or the Minister, or for the completion of any public work, such as road work, kerbing and guttering, footpaths, stormwater drainage and environmental controls, required in connection with the consent, and any defects. Section 80A(10B)–(10E) authorises a consent to be subject to what is called a “reviewable condition”. A “reviewable condition” relates to conditions permitting extended hours of operation or the maximum

number of persons permitted in a building, all over and above core hours or numbers. A “reviewable condition” enables a review of the condition by the consent authority after an interval specified in the consent and, after such review, a change to the condition. Section 80A(11) provides that a development consent is subject to such conditions as may be prescribed in the regulations. Under this power, cl 98 of the EPA Regulation imposes automatically conditions on any development consent involving any building work, including compliance with the Building Code of Australia and, for residential building work, insurance. Clause 98A of the EPA Regulation imposes as a condition for any consent involving building work, subdivision work or demolition work, the erection of signage on the site. Where a development consent involves excavation below the level of the base of footings on adjoining land, cl 98E of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) imposes as a condition a requirement to protect and support adjoining premises from damage from excavation and, if necessary, the underpinning of such adjoining premises.1 Section 80A(1) is substantially the same as s 91(3) of the EPA Act, as originally enacted in 1979, and prior to the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments), revising all of Pt 4 of the EPA Act. Section 80A(2) is substantially the same as s 91(3) of the EPA Act, inserted into the EPA Act by the Local Government (Consequential Provisions) Act 1993 No 32 (NSW). The language of the then s 91(3) and now current s 80A(2) mirrors the language of Samuels JA in Scott v Wollongong City Council (1992) 75 LGRA 112 and discussed in relation to finality of consents and the principles from Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) LGRA 349 (Mison). As such, it appears to be confirmatory of the pre-existing law and, in particular, not providing an exception to the Mison principles. Section 80(1)(3) was inserted into the EPA Act by the 1997 Amendments. It provides an exception to the Mison principles and is discussed in relation to finality of consents and the Mison principles and the decisions in Kindimindi and GPT v Belmorgan. Footnotes

Footnotes 1

Additionally, cl 98C of the EPA Regulation imposes compulsory conditions for entertainment venues, and cl 98D imposes compulsory conditions on the maximum number of person permitted in Entertainment Venues, function centres, pubs, registered clubs and restaurants, and signage in relation to maximum numbers.

¶58-020 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council In Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490; (1970) 20 LGRA 208 (Allen Commercial Constructions) the High Court heard an appeal in relation to an application for an injunction to enforce compliance with the conditions of a development consent for the erection of a building in North Sydney. The Council had granted development consent under Pt 12A of the Local Government Act 1919 (LG Act 1919) and the North Sydney Planning Scheme Ordinance, subject to a condition limiting the hours of construction and building work. In the High Court, it was argued that the ordinance did not empower the council to impose such a condition and, alternatively, if it did, then it was ultra vires the LG Act 1919. The High Court’s findings in relation to the second issue were considered in Chapter ¶3 on scope and power of Environmental Planning Instruments (EPIs). In relation to the first issue, Walsh J (with whom Barwick CJ, Wendeyer J, and with some reservation, Menzies J agreed) held that cl 40(1) of the Ordinance empowered the Council, subject to the provisions of the Ordinance, to “… grant an application unconditionally or subject to such conditions as it may think proper to impose or may refuse to grant an application”. He then held at paragraph [13]: “13 In accordance with a well-recognized rule, s 40(1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the

conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council (1961 AC 636), at p 684, as being ‘the implementation of planning policy’, provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained. (at p 5000).” Walsh J then held that the power of the Council was not limited to regulate the ultimate result of the development and the purpose which it was to be used, but extended to the process of erecting the building and activities during the period of construction. As a result, the High Court held that the condition was validly imposed. Conclusion The following conclusion may be derived from Allen Commercial Constructions: • The power to impose conditions on a development consent is limited to conditions which are reasonably capable of being related to the purpose for which the function of determining DAs is being exercised, and that purpose must be ascertained by reference to the statutory provisions. The question of the lawfulness of conditions of a development consent has been considered by the House of Lords in the United Kingdom in relation to the provisions under UK planning legislation.

¶58-030 Newbury District Council v Secretary of State for the Environment In Newbury District Council v Secretary of State for the Environment

[1980] 1 All ER 731 (Newbury), the UK House of Lords heard an appeal in relation to the enforcement orders regarding the use of former hangers associated with a Second World War airfield in rural lands. In 1962, planning approval was granted permitting the use of the hangers as a warehouse for synthetic rubber, subject to a condition requiring their removal by the end of 1972. In 1970, an application was lodged to extend the planning approval by three years. When the Council refused the application, an appeal was lodged with the Secretary of State who decided that the condition requiring removal of the hangers was invalid. The local authority then appealed to the courts. One of the issues before the House of Lords related to the validity of this condition of the planning permission. In the UK, the power to determine a planning application is similar to s 80(1) of the EPA Act in New South Wales but without an equivalent to s 80A providing specific powers for the imposition of conditions. The House of Lords held that the Secretary of State was correct in deciding that the condition requiring removal of the hanger was invalid and that the condition was extraneous to the proposed use and did not fairly or reasonably relate to the development approved. Viscount Dilhorne (with whom Lord Edmund-Davies agreed) outlined the legal principles as follows at p 739: “The validity of the condition Section 29(1) of the Town and Country Planning Act 1971 requires a local planning authority when dealing with an application for planning permission to have regard to the provisions of the development plan so far as material ‘and to any other material considerations’, and gives the planning authority power, subject to the provisions of a number of sections (which have no relevance to this case) to grant planning permission, either unconditionally or subject to such conditions as it thinks fit or to refuse permission. The power to impose conditions is not unlimited. In Pyx Granite Co Ltd v Ministry of Housing and Local Government ([1958] 1 All ER 625 at 633, [1958] 1 QB 554 at 572) Lord Denning said: ‘Although the planning authorities are given very wide powers

to impose ‘such conditions as they think fit’, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.’ As Lord Reid said in Chertsey Urban District Council v Mixnam’s Properties Ltd ([1964] 2 All ER 627 at 632, [1965] AC 735 at 751), this statement of law was approved by this House in Fawcett Properties Ltd v Buckingham County Council. It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them (Associated Provincial Picture Houses Ltd v Wednesbury Corpn; Hall & Co Ltd v Shoreham-by-Sea Urban District Council ([1964] 1 All ER 1 at 8, 13, 17–18, [1964] 1 WLR 240 at 248, 255, 261), per Willmer Harman and Pearson LJJ; City of London Corpn v Secretary of State for the Environment; London Borough of Hillingdon, ex parte Royco Homes Ltd).” Viscount Dilhorne found the conditions were clearly imposed for a planning purpose, but held that they did not fairly and reasonably relate to the proposed development, based on the following: • it flowed from an objective to restore the area as whole, not from any planning need arising from the actual purpose, being a change of use for which the application was made • it was not necessary for the purpose, or to protect the environment as a result of that purpose, and • he emphasised the substantial nature of the buildings involved. Lord Fraser of Tullybelton held at p 745–746 as follows (footnotes excluded):

“The power on which the respondent relied to justify the condition attached to the planning permission granted in 1969 was derived from s 17(1) of the Town and Country Planning Act 1962, but it is more convenient to refer to s 29(1) of the Town and Country Planning Act 1971, which does not differ from the earlier enactment in any material respect. Section 29(1) provides as follows: ‘Subject to the provisions of sections 26 to 28 of this Act, and to the following provisions of this Act, where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations, and (a) subject to sections 41, 42, 70 to 80 of this Act, may grant planning permission, either unconditionally or subject to such conditions as they think fit …’ The words that I have emphasised would appear on their face to confer an unlimited power, but it is plain that the power is subject to certain limitations. If authority for that proposition is needed it is to be found in the speech of Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd ([1970] 1 All ER 70 at 73, [1971] AC 72 at 86). In order to be valid, a condition must satisfy three tests. First, it must have a planning purpose. It may have other purposes as well as its planning purpose. But if it is imposed solely for some other purpose or purposes, such as furtherance of the housing policy of the local authority, it will not be valid as a planning condition: see R v London Borough of Hillingdon, ex parte Royco Homes Ltd. Second, it must relate to the permitted development to which it is annexed. The best known statement of these two tests is that by Lord Denning in Pyx Granite Co Ltd v Ministry of Housing and Local Government which has been followed and applied in many later cases. Lord Denning said there ([1958] 1 All ER 625 at 633, [1958] 1 QB 554 at 572): [p 746]

‘Although the planning authorities are given very wide powers to impose ‘such conditions as they think fit’, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.’ One reason, relevant to the instant case, why it would be wrong to secure removal of buildings by the use of a condition unrelated to the permitted development is that it would enable the planning authority to evade its liability to pay compensation for removal under s 51 of the 1971 Act. Thirdly, the condition must be ‘reasonable’ in the rather special sense of Associated Provincial Picture Houses Ltd v Wednesbury Corpn ([1947] 2 All ER 680 at 682, [1948] 1 KB 223 at 229). Thus it will be invalid if it is ‘so clearly unreasonable that no reasonable planning authority could have imposed it’ as Lord Widgery CJ said in Kingston-uponThames Royal London Borough v Secretary of State for the Environment ([1974] All ER 193 at 196, [1973] 1 WLR 1549 at 1553). There was no dispute between the parties that tests substantially in the terms I have set out were those relevant for the present purpose. It may not be strictly necessary to specify the second of these tests separately, as it may be included within the third, but I think it is desirable to set it out as a separate test lest it be overlooked.” Lord Fraser concluded at p 747 that: “There was nothing that I can see about the change of use to a wholesale warehouse which required or justified a condition for removal of the buildings. The reason why the planning authority ordered their removal was to improve or restore the amenity of the neighbourhood by getting rid of ugly buildings. No doubt that was a very proper object, but it had nothing particularly to do with the use of the buildings as warehouses.” Lord Scarman agreed and held at p 754–755:

“The law is, I think, well settled save for one small area of doubt. Counsel for ISR2 opening the appeal, suggested that the law requires three tests of validity, all of which, he submitted, must be satisfied. Counsel for the Secretary of State agreed with him. Counsel for the local planning authority suggested that there were really only two. The difference between them is semantic, not substantial. The three tests suggested are (1) the condition must fairly and reasonably relate to the provisions of the development plan and to planning considerations affecting the land, (2) it must fairly and reasonably relate to the permitted development, and (3) it must be such as a reasonable planning authority, duly appreciating it statutory duties, could have properly imposed. As counsel for the local planning authority said, test (3) is almost invariably wrapped up in the first two; but it is possible, though unusual, that a condition could in an exceptional case satisfy the first two tests but fail the third. My Lords, I accept the submission of the Secretary of State and ISR that there are these three tests. The legal authority for the tests is to be found in the 1971 Act and its judicial interpretation. Section 29(1) of the Act, substantially re-enacting s 14(1) of the 1947 Act, provides as follows: ‘Subject to the provisions of sections 26 to 28 of this Act, and to the following provisions of this Act, where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations, and (a) subject to sections 41, 42, 70 and 77 to 80 of this Act, may grant planning permission, either unconditionally or subject to ‘such conditions as they think fit;’ or (b) may refuse planning permission.’ Though the subsection speaks of ‘such conditions as they think fit’, its opening words impose a limitation on the powers of the local planning authority including the [p 755]

discretionary power to impose conditions. In dealing with the application for permission, they shall have regard to the development plan ‘so far as material to the application, and to any other material considerations’, I construe ‘material considerations’ in the context of the subsection as a reference to planning considerations. The subsection therefore expressly mentions the first two tests. The third test arises from the application to the planning law of the reasonableness test as enunciated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn. This view of the subsection and its predecessor has been accepted by a line of authoritative judicial decisions, the most notable of which are Pyx Granite Co Ltd v Ministry of Housing and Local Government when in the Court of Appeal, and Fawcett Properties Ltd v Buckingham County Council. In the Pyx Granite case ([1958] 1 All ER 625 at 633, [1958] 1 QB 554 at 572) Lord Denning said that conditions ‘… must fairly and reasonably relate to the permitted development’. In Fawcett’s case this House, in effect, adopted the three tests. Lord Cohen ([1960] 3 All ER 503 at 506, 507, [1961] AC 636 at 660, 662) considered that the relevant questions which the court must answer were, as Megarry QC had submitted, whether the scope of the condition was ‘unrelated to the policy declared in the outline plan or to any other sensible planning policy’. Lord Denning repeated his formula in the Pyx Granite case ([1958] 1 ALL ER 625 at 633, [1958] 1 QB 554 at 572), adding, with a reference to the Wednesbury case (n1), that ‘they [ie the local planning authority] must produce a result which does not offend against common sense’. Lord Jenkins ([1960] 3 All ER 503 at 522, [1961] AC 636 at 685) quoted Lord Denning’s formulation in the Pyx Granite case ([1958] 1 All ER 625 at 633, [1958] 1 QB 554 at 572) with approval. Fawcett’s case renders it unnecessary to cite further authority, though there is plenty in the books, to establish the three tests. They have been recognised and adopted by the courts and this House.”

Lord Lane agreed with the three tests outlined by other members of the House of Lords. Conclusion The basis for the House of Lords’ decision in Newbury rests on the statutory provisions in the UK planning legislation. The following conclusion may be derived from Newbury: There are three tests for the validity of a condition imposed on a development consent: (1) the condition must be for a planning purpose, and not any ulterior one (2) the condition must fairly and reasonably relate to the development (the subject of the DA), and (3) the condition must not be so unreasonable that no reasonable planning authority could have imposed it, as provided in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 682, [1948] 1 KB 223 at 229 (Wednesbury). The first two tests are founded in the statutory provisions of the planning legislation, while the third test is founded in general administrative law and may overlap the first two tests. The statutory formulation of s 80(1) and s 80A(1)(a) of the EPA Act operates to make the first two tests applicable to the law in New South Wales. The determination of a DA under the EPA Act, as a decision under that Act, must be for a purpose authorised by the EPA Act and the objectives of s 5. A condition of a development consent must reasonably relate to the development (the subject of the DA) as it arises from a conditional grant of a consent to a DA under s 80(1) and further, that s 80A(1)(a) requires that it relates to a matter relevant to the development. Hence, the first two tests in Newbury equally arise from the EPA Act, while the third test arises from general administrative law in New South Wales. Footnotes

Footnotes 2

CCH comment: “ISR” refers to International Synthetic Rubber Co Ltd, which was one of the parties to the appeal and the land owner.

¶58-040 St George Building Society v Manly Municipal Council In St George Building Society v Manly Municipal Council (1982) 3 APAD 370, Bignold SA (while then Senior Assessor in the Land and Environment Court of NSW (NSWLEC)) likewise concluded that the first and second tests for validity of a condition under Newbury arose from the proper construction of the pre-1997 Amendments equivalent to the current s 80(1) and s 80A(1) of the EPA Act.

¶58-050 Lake Macquarie City Council v Hammersmith Management Pty Ltd In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 (Hammersmith), the NSW Court of Appeal considered an appeal on a question of law arising from a merit appeal regarding the imposition of a condition on a development consent for an urban release area. The condition required a payment of $66,267 towards the acquisition costs of a conservation corridor. The condition was imposed under s 94 of the EPA Act and as provided in the Lake Macquarie Section 94 Contributions Plan No 2 — North Lakes prepared under s 94B of the EPA Act. The issue of development contributions under s 94 and contributions plans will be considered later, as the issue of development contribution is a discrete area of conditions of consent. However, Hammersmith is considered at this point as it makes a number of important conclusions regarding the broader question of conditions of a development consent. Before the primary judge, at first instance, Hammersmith challenged the validity of both the Contributions Plan itself and the validity of the condition

requiring the contribution. The primary judge held that the Contributions Plan was valid; but deleted the requirement in the conditions to pay a monetary contribution for acquisition of the conservation corridor. The Council then appealed to the NSW Court of Appeal. The NSW Court of Appeal dismissed the appeal. The aspects of the NSW Court of Appeal judgment will be considered elsewhere in relation to development contributions. But in relation to conditions generally, Tobias JA (with whom Mason P and Young CJ in Eq agreed) referred to the decision of Stein J in Parramatta City Council v Peterson (1978) 61 LGERA 286 (another development contributions case) and held at paragraphs [48]–[58]: “48 It was submitted that the Assessor in that case [ie Peterson] had erred when he held that it was not open to the Council to impose a condition requiring a monetary contribution pursuant to s 94(1) of the Act to the construction of the proposed car park because there was no ‘identifiable nexus’ or ‘direct connection’ between the development and the car park. After considering the pre-1979 authorities and referring to the threefold test laid down by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599–600, which required, inter alia, that a condition ‘must fairly and reasonably relate to the development’ (the second Newbury test) to be valid, his Honour [ie Stein J in Peterson] said (at 295): ‘I am of the opinion that the assessor erred in law in two respects. Firstly, he erroneously applied the second Newbury test. Rather than determine whether the condition fairly and reasonably relates to the permitted development it is clear that he applied a narrow and more rigid test than required by the directions. The test he applied was one requiring an ‘identifiable nexus’ and a ‘direct connection’. This interpretation is not authorised by Newbury …’ 49 His Honour then considered the effect of s 94(1) of the Act and said (at 296): ‘In my opinion neither s 94, nor the judicial gloss on it, requires proof of a direct connection between the

development and the public amenity upon which the contribution is to be spent. In my view it is sufficient if the parking facilities serve the Parramatta CBD as a whole … to require a narrow and stricter approach will deny any public authority having regional or sub-regional centres within its boundaries the ability to effectively provide public amenities, the need for which may undoubtedly be generated by development. In my opinion the second test as to whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed with the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity).’ 50 Relying on these passages, the Council submitted that the statutory phrase in s 94(1) was satisfied if the development in question ‘is benefited by the public amenity provided’. It seems to me that the conflation of the two limbs of the statutory phrase alleged to have been committed by the primary judge in the use of the concept of ‘generated need’, is being adopted in this submission to serve the Council’s purposes. It is, in effect, submitting that the two limbs of the statutory phrase can be conflated such that the statutory test is satisfied if the development will or is likely to be ‘benefited by’ the particular public amenity provided. 51 More relevantly, Stein J’s judgment in Peterson proceeded from the undisputed basis that the development generated a need for the type of public amenity that the Council in that case sought to provide. There was therefore no issue that the development increased the demand for the provision of such an amenity. The only issue was whether the proposed car park, in respect of which the monetary contribution was imposed, would meet the increased need or demand generated by the development for such an amenity. His Honour found that it would do so as the amenity was to be provided within the Council’s area (as s 94(1)

required) and the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear, as the provision of the car parking facility in question had the potential to attract vehicles which currently parked in facilities closer to the proposed development, thus freeing up spaces in those facilities to be used by those resorting to the development. 52 In my opinion, a condition can only be validly imposed pursuant to s 94(1) if: (a) one or other of the limbs of the statutory phrase is satisfied; (b) the condition satisfies the Newbury test of being: (i) for a planning purpose; (ii) fairly and reasonably relating to the development; and (iii) not being so unreasonable that no authority would have imposed it. The application by the Land and Environment Court of the Newbury test to s 94 of the Act was confirmed by this Court (Beazley JA, Priestley and Sheller JJA agreeing) in Russo & Ors v Burwood Municipal Council, Court of Appeal, 25 November 1996 (unreported). 53 The third Newbury test is a restatement of the test of reasonableness in the special sense expressed by Lord Greene MR in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229. It is a test going to the validity of a condition and is not to be confused with the merit requirement of reasonableness mandated by s 94(2). 54 So far as the first Newbury test is concerned, it would generally be satisfied if one or other of the limbs of the statutory phrase was satisfied. The same comment applies (at least in most cases) to the second Newbury test. As was submitted by the Council during argument, the reference in the statutory phrase to

‘public amenities and public services’ is in general terms and not directed to any particular public amenity or public service. In other words, it refers to a type of amenity or service rather than a particular amenity or service. Thus, in Peterson the statutory phrase was satisfied because the development generated a need (in that it increased the demand) for the provision of an off-street car park. The only question in that case related to the particular off-street car park in respect of which the monetary contribution was sought. It was in that context that the second Newbury test became relevant. 55 The type of public amenity relevant to the present case is that of a conservation corridor. Therefore, the relevant question was whether the primary judge was satisfied that Hammersmith’s development was or was likely to increase the demand for such a corridor. If not, the enquiry needed go no further. If it did, then a second question would have arisen as to whether a condition requiring payment of a monetary contribution towards the acquisition of the particular corridor ‘fairly and reasonably’ related to that development. It is only at that point of the enquiry that the question whether the development would be benefited by the corridor would become relevant. 56 The foregoing analysis finds support in the later decision of Stein J in Stockland (Constructors) Pty Limited v Shellharbour Council, 24 April 1996 (unreported). The issue in that case was whether Council administrative offices and a technical services depot (in respect of which the monetary contribution was sought) constituted a ‘public service’ or a ‘public amenity’. His Honour held that they did, provided they were operated for the benefit of the public. However, in the course of his judgment he said (at 4): ‘A broad construction of the statutory phrase ‘public amenities and public services’ should not be a matter of concern because of the extensive accountability provisions built into the Act. For example, a development needs to be likely to result in an increase in the demand for public services or amenities (s 94(1)) to qualify for a contribution. The contribution, of course, has to be a reasonable one for

the provision, extension or augmentation of the public services or amenities (s 94(2)). A contribution must also satisfy the Newbury tests of validity: • be for a planning purpose • fairly and reasonably relate to the development (the nexus test) • be reasonable.’ [Emphasis added] 57 It is apparent from the above passage that his Honour considered that before a monetary contribution for a public amenity or service could be extracted from a developer, three conditions had to be satisfied. The first was compliance with the statutory phrase. The second was the reasonableness of the contribution. The third was the satisfaction of the Newbury tests. It is noteworthy that his Honour refers to the second test as ‘the nexus test’. 58 There is no reason to think that Stein J’s approach in Peterson was intended to be any different to that which he later adopted in Stockland. There was no issue in Peterson with respect to the first two conditions outlined above. It was only the third condition, the second Newbury test in particular, that was in issue.” Conclusions While the decision in Hammersmith and the extract above deals with issues associated with s 94 which will be discussed later, the following conclusions may be drawn from Hammersmith: • The three Newbury tests apply in New South Wales in relation to s 94 and hence, if they apply in relation to s 94, they are likely to apply to all conditions of a development consent. • For a condition of a development consent to be valid it must comply with the following requirements: – the statutory phrases in either s 94 or s 80A of the EPA Act – the three tests in Newbury, namely that the condition is for a

planning purpose, it fairly and reasonably relates to the development and is not so unreasonable that no consent authority would have imposed it – compliance with both of these two requirements is necessary – compliance with the first Newbury test (namely that the condition is for a planning purpose) would generally be satisfied if one or other of the statutory requirements of s 94 or s 80A are met, and – compliance with the second Newbury test (namely that the condition fairly and reasonably relates to the development), in most cases, will be satisfied if the condition meets one or other of the statutory requirements of s 94 or s 80A. Moreover, compliance with the second Newbury test requires that the approved development is benefitted in a broad sense by the condition imposed.

¶58-060 Planning Commission (WA) v Temwood Holdings Pty Ltd In Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 (Temwood), the High Court heard an appeal regarding the validity of a condition imposed on a subdivision approval under s 20 of the Town Planning and Development (WA) Act 1928. The condition in dispute required certain land to be dedicated free of cost. The effect of this condition was to deny Temwood from being able to lodge a claim for compensation. Temwood appealed to the Town Planning Appeal Tribunal (the Tribunal) against the Western Australian Planning Commission’s decision. In the merit appeal the Tribunal did not uphold Temwood’s appeal. Subsequently, Temwood launched a legal challenge. One of the issues in the appeal related to the power of the consent authority to impose conditions on the subdivision approval and the lawfulness of

the condition so imposed. McHugh J held at paragraphs [46], [49]–[51], [56]–[58], [60], [63], [66], [68]–[70], [72]–[74] (footnotes not included): “46 The Town Planning Act empowers the Commission to impose conditions on applications for subdivision. That Act gives the Commission a broad discretion to impose conditions. The Commission’s discretion is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration. (That fetter does not apply here.) Section 20A contemplates that conditions for subdivision approval may be for the purpose of conservation or protection of the environment or a reserve for foreshore management or recreation. … 49 In Lloyd v Robinson, this Court held that a condition of subdivision approval that required the transfer free of cost to the Crown of land that did not form part of the application for subdivision was validly imposed by the predecessor of the Commission under the Town Planning Act. The condition was imposed on an application for subdivision under s 20(1)(a) of the Town Planning Act (as it then stood the section was not materially different from the present section). The condition specified that the subdividers should transfer a specified area of 25 acres of land to the Crown free of cost for park and recreation purposes. The area to be transferred was outside the area for which approval to subdivide was sought but formed a part of the original parcel of land and had not been subdivided. The area was not the subject of a reservation. 50 The Court held that the condition was valid. In a unanimous judgment, Kitto, Menzies and Owen JJ held that the Town Planning Act should not be read down by principles of statutory construction concerning the confiscation of land. Their Honours held that the Commission could impose conditions on approval that were bona fide and within the limits which, though not specified in the relevant legislation, were indicated by the nature

of the purposes for which the Commission was entrusted with the relevant discretion. Their Honours said: ‘Given the necessary relevance of the conditions to the particular step which the Board is asked to approve, there is no foothold for any argument based on the general principle against construing statutes as enabling private property to be expropriated without compensation. The Act at its commencement took away the proprietary right to subdivide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion: see Swan Hill Corporation v Bradbury; Water Conservation and Irrigation Commission (NSW) v Browning. If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the [Town Planning Act] down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be

bought too dearly at the price of complying with the conditions.’ 51 The decision in Lloyd inevitably leads to the conclusion that the Commission could exercise its powers under s 20 of the Town Planning Act by approving Temwood’s applications for subdivision subject to the condition that Temwood convey the Foreshore Reserve to the Crown free of cost and without compensation. When the Commission made its decision, Temwood had no right to compensation in respect of the Foreshore Reserve and, as the Court pointed out in Lloyd, the Act ‘took away the proprietary right to subdivide without approval, and it gave no compensation for the loss’ of that right. Even if it is not correct to characterise the Act as taking away the proprietary right to subdivide without approval, the condition in the present case was validly imposed as it was within the limits which were indicated by the nature of the purposes for which the Commission was entrusted with the relevant discretion. … 56 The Commission does not dispute that the power to attach conditions to development consents is limited to those conditions that are reasonably capable of being regarded as related to a legitimate planning purpose. That purpose is ascertained from a consideration of the applicable legislation and town planning instruments to which the responsible authority is subject. The purpose is not ascertained from ‘some preconceived general notion of what constitutes planning’. In Bathurst City Council v PWC Properties Pty Ltd, this Court endorsed the statement of Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council that the power to attach conditions to development consents was to be understood: ‘not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a

consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council, as being ‘the implementation of planning policy’, provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained.’ 57 The Commission also does not dispute that a condition attached to a consent must reasonably and fairly relate to the development permitted. A condition attached to a grant of planning permission will not be valid therefore unless: 1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2. The condition reasonably and fairly relates to the development permitted. 3. The condition is not so unreasonable that no reasonable planning authority could have imposed it. 58 A condition attached to a grant of planning permission may be invalid although its ulterior purpose is not the sole purpose. If the ulterior purpose is a substantial purpose for which the authority is exercising its power, the condition is invalid. Counsel for Temwood conceded that the purpose of reserving the Foreshore Reserve was a proper town planning purpose. The question is whether the condition was imposed for a proper planning purpose. … 60 A condition is imposed for a proper planning purpose if it is

‘imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists’. In Lloyd, the land the subject of the condition was not reserved under the Metropolitan Region Scheme or any other town planning scheme. The condition that the land be ceded to the Crown free of cost was justified on the basis that the imposition of the condition was a reasonable response to the change in existing affairs created by the proposed subdivision. … 63 The Tribunal found that the Commission had designed the condition to have the following effects: (1) to enliven the machinery provisions in s 20A of the Town Planning Act (thereby facilitating the mechanical transfer of title to the Foreshore Reserve to the Crown); and (2) ‘to defeat the operation of Part V’ of the Metropolitan Region Scheme Act, thereby rendering nugatory any right to compensation for injurious affection under s 36 of the Metropolitan Region Scheme Act. … 66 However, the Commission’s purpose is not the relevant purpose in determining whether the condition was validly imposed. In hearing the appeals, the Tribunal was conducting a review of the merits based on the facts. In dismissing the appeals, the Tribunal was affirming the merits of the Commission’s decision. It is the Tribunal’s purpose in upholding the imposition of the condition that is the relevant purpose, not the original purpose of the Commission. An examination of the Tribunal’s reasons shows that it found that ‘the basis for the imposition of the condition is that it was imposed historically and, having not be [sic.] effectuated, requires to be imposed again until it is fulfilled’. The Tribunal did not say that it upheld the imposition of the condition because it would defeat Temwood’s claim for compensation. And, given ‘the basis for the imposition of the condition’ which the Tribunal stated, the purpose of defeating a claim for compensation should not be attributed to it. …

68 The purpose of ‘enforcing’ the historical condition was a legitimate planning purpose. Section 20A(1) of the Town Planning Act contemplates that the Commission may impose a condition that portions of ‘that land’ be vested in the Crown for the purpose of conservation or protection of the environment or reserve for foreshore management or recreation. The Tribunal was entitled to regard the evidence as proving that the ‘historical condition’ related to foreshore management and that it had a clear environmental protection or conservation purpose, namely, to maintain a buffer zone of uncleared land to preserve the scenery and vegetation. These purposes were deducible from the EPA M107 recommendation and the ministerial statement issued under s 45 of the Environmental Protection Act. 69 In addition, s 20C(1) of the Town Planning Act contemplates that the Commission may require a portion of land the subject of an approved plan of subdivision to be ‘set aside and vested in the Crown for parks, recreation grounds or open spaces generally’. The section permits the owner of the land to pay money in lieu thereof to the local government in whose district the portion is situated. Given that the Foreshore Reserve was reserved under the Metropolitan Region Scheme for the purpose of ‘Parks and recreation area’, the condition is consistent with a vesting for the purpose of parks, recreation grounds or open spaces generally. Before the Tribunal, Temwood ‘accepted the environmental condition that the land should be set aside for public use’. 70 In my opinion, Temwood has failed to show that the Tribunal erred in law because the condition was imposed for an improper planning purpose. … 72 A condition must ‘reasonably and fairly relate’ to the permitted development to be valid. A condition is ‘relevant’ to the development if it falls within the proper limits of the Commission’s functions under the Town Planning Act and the Metropolitan Region Scheme Act or is imposed to maintain proper standards in local development. The condition need not relate to the

subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole. In Lloyd v Robinson, this Court held that the Commission may impose a condition on a grant of subdivision approval that requires the giving up of another area of land for purposes relevant to the subdivision of the first. That condition must be ‘imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists’. The Court also held that the condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole. Even if the condition approved by the Tribunal did not relate to the land the subject of the subdivision applications, Lloyd v Robinson supports the proposition that the condition reasonably and fairly related to the approved development. This is because the condition clearly related to the Land as a whole. 73 Counsel for Temwood seemed to suggest that a condition reasonably and fairly relates to a proposed development only if the development is benefited by the imposition of the condition. Before the Full Court, counsel asked rhetorically: ‘Why would the Crown wish or need to take further action to secure the existence of a reserve which has already been brought into existence by the [Metropolitan Region Scheme]?’ But this misstates the issue — which is not whether the condition requiring the ceding of the Foreshore Reserve to the Crown secures the existence of a reserve, but whether the development is benefited by the Crown’s acquiring all the rights and liabilities entailed by ownership of the Foreshore Reserve. The Town Planning Act contemplates the eventual public ownership of reserved land for public purposes, such as foreshore management or the protection of the environment. As the Court remarked in Lloyd v Robinson, there may be no legally enforceable obligation on the Crown to keep the Foreshore Reserve reserved for the purpose of ‘Parks and recreation area’: the ultimate sanction may be political only. Here, the subdivision was part of a series of subdivisions of a larger parcel of land. The condition was imposed for environmental

protection reasons or foreshore management reasons in respect of that larger parcel of land. Moreover, the Minister had previously rejected an application for two grouped dwellings on the Foreshore Reserve. In these circumstances, the Tribunal was entitled to take the view that as a matter of fact the vesting of the Foreshore Reserve in the Crown secured that protection and those environmental protection or foreshore management objectives. 74 Once this is accepted, there is no ground for concluding that the condition was so unreasonable that no reasonable planning authority could have imposed it. Accordingly, the condition was validly imposed.” McHugh J’s judgment provided as follows: • The High Court in Lloyd v Robinson [1962] HCA 36 (Lloyd v Robinson) held that a condition of a subdivision approval in Western Australia requiring the dedication free of charge of land not forming part of the subdivision was valid and should not be read down by the principles of construction concerning the confiscation of land adopted by the High Court in Chissold v Perry [1904] HCA 12 under which legislation is presumed not to interfere with existing vested proprietary interests without adequate compensation. • Lloyd v Robinson held that a condition could be imposed if it was bona fide and within the limits of purposes of the relevant legislation. The case also held that in such a condition the dedication is a quid pro quo for the approval to subdivide. If the landowner considered the quid pro quo to be inadequate, he/she may decide not to proceed with the subdivision. • The principles in Wash J’s decision in Allen Commercial Constructions were endorsed, namely that a consent authority can lawfully attach conditions to a development consent if they are reasonably capable of being related to the purposes for which the function of determining a DA is being exercised, and that purpose must be ascertained by reference to the statutory

provisions. • The three tests for validity of a condition of a development consent, as provided in the House of Lords’ decision in Newbury, were applicable. • A condition of a development consent may be invalid where there are multiple purposes for its imposition where one is an ulterior purpose, provided that the ulterior purpose is a substantial one. • The purposes of the Western Australian Planning Commission in imposing the condition initially were not relevant as the approval was issued by the Tribunal after a merit appeal. Thus, the relevant issue was the purposes of the Tribunal in imposing the condition, not the Commission. It was not shown that a purpose of the Tribunal was to defeat a claim for compensation. • A condition reasonably and fairly relates to a proposed development if: – it falls within the proper limits of the consent authority’s functions or is imposed to maintain proper standards in local development – it need not relate to the land (the subject of the application), if it relates to a larger parcel of land, of which the land (the subject of the application) forms part – it must be imposed in good faith and not to achieve extraneous purposes, and – the development is benefited by the imposition of the condition, construed broadly and including environmental protection reasons. In addition to the judgment of McHugh J, the majority of the High Court in Temwood included a joint judgment of Gummow and Hayne JJ, who found the condition was validly imposed. Gummow and Hayne JJ relied upon the principles in Allen Commercial Constructions

and Lloyd v Robinson but made no reference to the tests in Newbury. Callinan J in dissent found the reasoning of the Tribunal was erroneous and that the landowner had a right for compensation. But so far as the condition on the approval was concerned, Callinan J held at paragraphs [152]–[157] (with footnotes excluded): “152 A later case in which this Court, constituted on this occasion by five Justices, considered the validity of conditions attaching to the approval of a subdivision, is Cardwell Shire Council v King Ranch Australia Pty Ltd. The imposition of the condition there was governed by a Queensland enactment that expressly stated that a condition could not be imposed unless it was reasonably required by the subdivision of the land. I do not take this statutory test to be different from the test that should be applied to a subdivision under the TP Act. This is so because it seems to me to be highly unlikely that the legislature of Western Australia would have intended to confer upon any planning authority in that State a power to impose conditions that were not reasonably required by the subdivision. If it were otherwise, the authority could arbitrarily impose a condition that had little or nothing to do with the subdivision, or was quite unreasonable having regard to the likely consequences of the subdivision. Gibbs CJ, with whom the other four members of the Court (Mason, Wilson, Brennan and Dawson JJ) agreed, said this: ‘The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce — for example, in a case such as the present, the increased use of the road and of the bridge — and to impose such conditions as appear to be reasonably required in those circumstances.’ 153 As Gibbs CJ made clear however, that did not mean that the condition could be regarded as reasonable only if the product of

its implementation would be for the exclusive benefit of persons connected with the subject land. 154 It seems to me that even though the Court was considering a condition which was governed by particular legislation in Cardwell, the same approach as was adopted there should be adopted under the TP Act despite that it does not use the word ‘reasonably’. 155 The test stated in Cardwell is moreover, a similar test to the one adopted by the House of Lords in Newbury District Council v Secretary of State for the Environment: that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it. It may be doubted whether the third limb of the test is necessary. It uses the language of Wednesbury, but if, as the second limb of the test requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case. The reference therefore to Wednesbury unreasonableness serves to confuse, rather than to illuminate the issue in cases of potentially unlawful conditions. On any view therefore I do not think it appropriate to regard the language of Lloyd, particularly the passages that I have quoted as being applicable to contemporary planning problems and the resolution of this appeal. 156 The adoption by this Court (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bathurst of what was said by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council does not dictate a different conclusion. It is necessary to keep in mind everything that was said by Walsh J in the passage quoted in Bathurst, in particular that the discretion (to impose conditions) was not unlimited, and that the conditions must be ‘reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised’.

Neither the purpose nor the function of the authority is to get land for nothing for a planning purpose at large: the function and purpose of the authority is of deciding whether the subdivision should be permitted, and if so, whether any and which conditions reasonably and fairly relate to it and should be imposed. 157 … Whilst it cannot be doubted that there is a power to impose a condition of the kind imposed here, the condition has to be one which is fairly and reasonably related to the subdivision or development, the application for the approval of which is to provide the occasion and need for its imposition: no attempt has been made by the appellant to establish that vital connection …” Callinan J adopted the three tests in Newbury subject to his caveat in relation to the usefulness of the third test and indicated that the effect of these tests was to override the reasoning in Lloyd v Robinson. Callinan J found that, in this instance, it had not been established that the condition fairly and reasonably related to a development in question. Heydon J, also in dissent, held at paragraph [180] (footnotes excluded): “180 Conditions imposed by the appellant under s 20(1)(a) must not be imposed for any purpose extraneous to those permitted by the legislation. A planning authority which intends a particular effect may be said to have a purpose of bringing about that effect. Hence it is strictly irrelevant whether, assuming that the condition had not been imposed, the respondent would have been able to claim compensation: it suffices that the appellant had — if it did — the purpose of defeating any claim open to the respondent, which in the circumstances was outside the range of objects permitted by s 20(1)(a). A decision can be invalidated by an extraneous purpose even though the goal which underlies that purpose is futile or unnecessary or impossible of achievement. For that reason, the arguments of the parties in the courts below about whether the respondent had any right to compensation, and the discussions of those arguments by the courts below, are irrelevant …” It must be recognised that the decision of the High Court in Temwood

relates to a different statutory regime than the EPA Act in New South Wales. But that statutory regime is comparable to s 80(1) without any equivalent to s 80A. Hence, to that extent, the principles in Temwood have some application in New South Wales, although the reasoning of the majority is not uniform. The tests in Newbury are only recognised by McHugh J and Callinan J, meeting favour with both (Newbury was referred to in a footnote by Gummow and Hayne JJ without any comment in the judgment: see paragraph [93] and footnote [103]). Perhaps more importantly in exploring the meaning of what reasonably and fairly relates to a proposed development, McHugh H identifies some useful indicators, even though Gummow and Hayne JJ are silent.

¶58-070 Dogild Pty Ltd v Warringah Council In Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53 (Dogild), Biscoe J in the NSWLEC heard a merit appeal in relation to an application to modify a development consent granted in 2006 by Council for the construction of a four-storey mixed residential and commercial development fronting the Strand at Dee Why. The modification application sought to change aspects of the built form of the approved development and delete a condition attached to the consent requiring the creation of a right of carriageway over the rear of the site. The Council had a long standing proposal to create rear lane access between two streets running off the Strand to provide access for garbage and delivery vehicles and minimise the need for on-street parking, affecting eight properties. It was not proposed that the Council acquire the laneway, which would remain a private access way for the properties concerned. The applicant sought deletion of the condition requiring the right of carriageway on the grounds that it did not comply with the second and third Newbury tests. It is noted the applicant approached this issue by accepting the consent as issued rather than appealing, but later lodging a s 96 modification application to modify the consent. The applicant did not commence civil enforcement proceedings to declare the condition invalid, presumably to avoid any question as to whether it was severable from the consent. The judgment does not disclose any debate as to whether the s 96

modification application met the threshold legal requirement of being “substantially the same development”. Biscoe J provided an extensive review of the Newbury tests at paragraphs [41]–[54] as follows: “41 This Court has often applied Newbury to test the validity of conditions of development consent under the EPA Act: for example, in Parramatta City Council v Peterson (1987) 61 LGRA 286 (Stein J); King v Bathurst Regional Council (2006) 150 LGERA 362 at 387 (Jagot J); Markakis v Mosman Municipal Council [1998] NSWLEC 223 at [5], (Lloyd J); Hill v Blacktown City Council (2007) 154 LGERA 418 at [41] (Jagot J); Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [26] (Lloyd J). The NSW Court of Appeal approved the Newbury tests in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225 and Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 at [80] (where the Newbury tests were referred to without reference to the Newbury case). In Lake Macquarie City Council v Hammersmith Management Pty Ltd, a case under s 94 of the EPA Act, Tobias JA (Mason P and Young CJ in Eq agreeing) held that the Newbury tests were additional to the requirements of the statutory phrase in s 94(1) ‘will or is likely to require the provision of or increase the demand for public amenities and public services within the area’. ... [His Honour then cited paragraphs [52]–[54] of Hammersmith, which have been previously included.] 42 The only High Court case in which Newbury appears to have been cited is Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 (‘Temwood’). McHugh and Callinan JJ considered Newbury, Gummow and Hayne JJ cited it without more in a footnote (at [93] fn 131) [sic. This should read “103”] while Heydon J did not refer to it. In that case a subdivision of land was approved under Western Australian town planning legislation subject to a condition that a portion of the land be vested in the Crown free of cost and without payment of compensation by the council. The condition was held to be valid on the basis that it had been bona fide imposed for a

legitimate planning purpose and was reasonably related to the proposed development. McHugh J at [55] noted that the Full Court of the Supreme Court of Western Australia had applied the reasoning in Newbury. McHugh J adopted the Newbury test at [57]: ... [Biscoe J then cited McHugh J at paragraphs [57]–[58] in Temwood which have been previously included.] 43 Callinan J doubted whether the third Newbury test of Wednesbury unreasonableness was necessary and said that it served to confuse rather than illuminate: at [155]. However, his Honour did not refer to the example given by Lord Lane in Newbury that the third test would be failed even where the first two tests were passed, if the effect of the condition would be to impose an obviously unreasonable burden upon the appellant (see [38] above). ... [Biscoe J then cited Callinan J at paragraphs [155]–[156] in Temwood, which have been previously included.] 44 The Newbury tests or principles as articulated by McHugh J in Temwood were cited and followed by the NSW Court of Appeal in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [35], [63] and [78], and in the Queensland Court of Appeal in Hammercall Pty Ltd v Gold Coast City Council (2004) 140 LGERA 303 at [66] and [89]. In Westfield at [78], Basten JA cautioned that ‘care must be taken not to treat a succinct statement of principles as a formulaic test’. 45 The High Court employed somewhat different language in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499–500. There Walsh J (Barwick CJ and Menzies and Windeyer JJ agreeing) said of such a power that it has to be understood: ... [Biscoe J then cited Walsh J in Allen Commercial Constructions which has been previously included.] 46 In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 576 to 577 the High Court held that the power of a

council to attach conditions to development consents granted before commencement of the EPA Act was not at large but was attended by the characteristics identified by Walsh J in Allen. The endorsement in Bathurst of the statement in Allen was noted by the High Court in Temwood by McHugh J at [56], Gummow and Hayne JJ at [93] and Callinan J at [156]. Allen was decided before Newbury to which no reference was made in Bathurst. It has been said that the Allen principle accords with the Newbury tests: St George Building Society v Manly Municipal Council (1982) 3 APA 370 at 380 (Senior Assessor Bignold).

47 The view was recently expressed by Gillard J in Melbourne Water Corporation v Domus Design Pty Ltd (2007) 154 LGERA 256 at 270 [49] that the Australian test is not the Newbury test but the Allen test. 48 In my opinion, the Newbury tests derive High Court support from the judgments of McHugh and Callinan JJ in Temwood and are entrenched in decisions of intermediate appellate courts and this court, including decisions of the New South Wales and Queensland Courts of Appeal following McHugh J in Temwood. They are a succinct and convenient statement of principles and may be viewed as a refinement of the statement in Allen. 49 As to the first Newbury test that a condition must have a planning purpose, that purpose must be derived from the statutory source of power. McHugh J said in Temwood at [57]: ‘A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning’. Similarly, Basten JA said in Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [85]: ‘the scope of a legitimate planning policy, and hence a lawful purpose of the consent authority, must be derived from the statutory source of the power being exercised. Preconceived general notions of what constitutes planning will only give rise to extraneous purposes, to the extent that they fall outside the scope of the statute’. 50 As to the second Newbury test, all the speeches in Newbury indicated that the nature of the nexus is that the condition must ‘fairly and reasonably relate’ to the permitted development. This was accepted in the High Court by McHugh J and Callinan J in Temwood at [57] and [155] respectively; by the NSW Court of Appeal, for example in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2004) 132 LGERA 225 [sic. Should read ‘‘(2003) 132 LGERA 225’’] at [52]; and by this Court, for example in Parramatta City Council v Peterson (1987) 61

LGRA 286 at 295–296. 51 What is meant by ‘fairly and reasonably relate’? The authoritative answer in Temwood at [155] by Callinan J is that it means ‘it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case’. That seems consistent with dicta in Newbury that there is some overlap between the second and third Newbury tests. Quoting and applying that Temwood passage, Lloyd J held in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [29] that satisfaction of the Newbury tests depends upon the circumstances of the particular case. His Honour also said that it was inappropriate to determine a bare legal question whether a condition satisfied the Newbury tests without knowing all the facts and circumstances of the case after a full hearing on the merits (at [29]). In the present case there has been a full hearing on the merits in order to inform the Court of the facts and circumstances of the case. 52 In Parramatta City Council v Peterson (above) Stein J held that ‘fairly and reasonably relate’ means that the development is ‘benefited’ by the public amenity provided. He said at 296 ‘In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)’. A narrower and more rigid test of an ‘identifiable nexus’ and a ‘direct connection’ was rejected: at 295. Peterson, a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: ‘The second of the Newbury tests was considered by Stein J in Parramatta City Council v Peterson at 296–7 in which his Honour stated the Court’s approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted

development is benefited by the condition imposed’. Peterson was also approved by the Court of Appeal in the s 94 condition case of Lake Macquarie City Council v Hammersmith Management Pty Ltd at 238 [51] where Tobias JA (with whom Mason P and Young CJ in Eq agreed) said in relation to Stein J’s judgment: ‘His Honour found that … the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear …’ Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J’s description) even if it does not benefit the permitted development. 53 An illustration of the application of the second and third Newbury tests is provided by St George Building Society v Manly Municipal Council (1981) 3 APA 370, on which the applicant placed some emphasis. St George proposed to rebuild its existing office building which had a frontage to the Corso, the main retail street in the Manly business centre. The existing building incorporated a pedestrian arcade leading from the Corso to Market Lane and a parking station. The rebuilding would eliminate the arcade. St George offered to provide free pedestrian access through its office during business hours Monday to Friday. It appealed against a condition of approval requiring the building to be redesigned ‘to provide unrestricted pedestrian access at all times between the Corso and Market Lane’. Senior Assessor Bignold (as he then was) held that the condition did not satisfy the second and third Newbury tests: at 381, 384. He said at 384 that ‘the disputed condition does not fairly and reasonably relate to the permitted development. In reaching this conclusion the court places particular reliance on the undisputed fact that the proposed development does not itself create any need for the provision of the arcade access and that the question of that access is wholly extraneous to the proposed development’. It was said at 387 that ‘the disputed condition clearly is directed to secure permanent public access in respect of the redevelopment

site and would have the effect of requiring the equivalent of a public right of way at least for the life of the new development’. The respondent argued that St George was distinguishable on the basis of the finding (at 376) that the condition would involve considerable private detriment to St George by virtue of denying it the opportunity to redevelop its existing premises in the manner it considered would best serve its business interests. Application of the Newbury tests in the present case is not dependent on forcing the facts into the confines of that dictum. Nevertheless, it may be said that in the present case the disputed condition also involves significant private detriment to the applicant by requiring it to endure over the Land new and potentially heavy vehicular traffic and pedestrian flows and their consequences. 54 An example of the application of the third Newbury test of Wednesbury unreasonableness is provided by the pre-Newbury case of Hall and Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1. There the plaintiffs wanted to develop industrial land which fronted a very heavily used main road. The planning authority granted approval on condition that the plaintiffs construct an ancillary road over the entire frontage of the site and give a right-of-passage over it to and from ancillary roads on adjoining land. This ancillary or service road on the plaintiffs’ land, giving access to the main road at only a limited number of points, would avoid unnecessary further congestion on the main road. The Court of Appeal held that, although the planning object was perfectly reasonable, the terms of the condition were so unreasonable that they were ultra vires.” Biscoe J then applied these principles in the case under consideration and found the condition requiring a right of carriageway failed to meet the second and third tests in Newbury holding at paragraphs [58]–[65]: “Does the condition fairly and reasonably relate to the permitted development (second Newbury test)? 58 The applicant accepted that the first limb of the Newbury test is satisfied: that is, the disputed condition has a legitimate planning purpose. The applicant submitted that the

second and third Newbury tests are not satisfied. 59 Although made for a legitimate planning purpose, the question that arises under the second Newbury test is whether the condition fairly and reasonably relates to the permitted development. I reject the applicant’s submission at [55(c)] above that the second Newbury test requires that the condition ‘directly’ relate to the permitted development. That test was rejected in Peterson, discussed at [52] above. In Newbury, Lord Lane’s reference to ‘directly related’ was a reference to those words in a Ministerial circular: at 628. His Lordship (like all other members of the House) approved the ‘fairly and reasonably relate’ test: at 627B. 60 In my opinion, the condition requiring the grant of a right of carriageway over the Land to the other Strand Properties does not fairly and reasonably relate to the permitted development. It is not fair and reasonable in the circumstances of this case. There are estimated to be between 50 and 70 strata owners in the Strand Properties. They, as well as their invitees and licensees, including customers of shops in the Strand Properties, would be entitled to use the carriageway under the requirements of the condition. In addition, as acknowledged in the reason attached to the condition and in the evidence of the planners, the general public will use this carriageway stretching between Oaks Avenue and Howard Avenue. The council in submissions fairly conceded that it would be wrong to suggest otherwise. The development does not generate the need for such a right of carriageway and public access, and will not benefit from it. The fact that, under the condition, vehicles and pedestrians visiting the Land would have the alternative of entering or exiting from Howard Avenue rather than Oaks Avenue (as at present) does not bring the requirement into any significantly closer relationship with the permitted development. I do not accept that there is any traffic management issue generated by the proposed development which requires vehicles to have that option. The

council seeks a carriageway stretching between Oaks and Howard Avenues in order to fulfil its longstanding intentions and, if it can become a one way system, to meet traffic problems in the segregated lane serving the rear of the Strand properties to the north of the Land. However, those traffic problems are not affected by the proposed development nor vice versa. 61 That is sufficient, in my view, to uphold this challenge to the validity of the condition. If it is necessary to go further, I would add the following. 62 The condition does not require a one way system. Under the condition, traffic is free to move in both directions along the narrow lane. The result would be conflict, congestion and chaos on the Land. This is likely to be even greater than that currently existing on the presently segregated laneway behind the Strand Properties to the north. That is because a laneway stretching all the way between Howard and Oaks Avenues would be likely to result in larger traffic flows, and there would be a bottleneck if traffic proceeds south along the 6 metre wide laneway and meets the 3 metre wide neck of the Land’s battleaxe shape. As for the reciprocity requirement of the condition, although owners of Strand Properties to the north of the Land can reciprocate if so inclined, the Strand property to the south of the Land has nothing to reciprocate in terms of the condition and can only add to the traffic volume. Any flow of traffic between Oaks and Howard Avenues is dependent upon relevant owners of Strand Properties agreeing to construct and pay for a ramp to overcome the obstacles of the low wall and 700 mm drop on the northern boundary of the Land. 63 It is critical to the resolution of the traffic conflict, congestion and chaos in the lane behind the Strand Properties to the north that traffic proceed in one direction only. Yet because the laneway is not to be resumed and made a public carriageway, the council has no power to establish a one way system nor to police a one way system

were it to be established. The establishment of a one way system would be dependent upon future agreement between all the owners of the Strand Properties who, if they agreed, would also have to agree to install and pay for associated signage in order to make the one way system work. Even in that event, the council would have no policing powers to ensure that a consensual one way system over private property was observed by users. 64 In my opinion, for these reasons, the condition fails the second Newbury test. Wednesbury unreasonableness (third Newbury test) 65 The applicant submitted that the condition also fails the third Newbury test as the condition is so unreasonable that no reasonable planning authority could have imposed it. This is the Wednesbury test of unreasonableness named after Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The stringency of the Wednesbury test has often been noted and a challenge on this ground only occasionally succeeds. The authorities were reviewed in this Court in MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59 at [48] by Jagot J and in my judgments in Save our Street Inc v Settree (2006) 149 LGERA 30 at [27]–[31] and Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229. Since I have upheld the challenge based on the second Newbury test, it is unnecessary to rule on this submission. However, if it were necessary to do so, then notwithstanding the stringent and exceptional nature of the third test, I would be inclined to hold that the condition fails the third test in the present case given the extent of the burden on the Land resulting from use of the carriageway by the owners of the other Strand Properties, their invitees and licensees and the general public, and the consequences of that use.” Conclusions

The following conclusions may be derived from Dogild: • The three tests for the validity of a condition of a development consent in Newbury are applicable in New South Wales and are a refinement and later development to the earlier test in Allen Commercial Construction v North Sydney. • The three tests in Newbury are additional to meeting the requirements in s 94(1) in relation to development contribution, although s 80A may override and extend Newbury. This raises the issue of the precise relationship between Newbury and the powers in s 80A(1) to impose conditions. The NSW Court of Appeal in Hammersmith held that the power to levy development contributions under s 94 is additional to meeting the statutory requirements of s 80A(1). Dogild recognises that s 80A(1) expressly authorises conditions which do not comply with the second test in Newbury. The issue to be resolved is whether s 80A(1) prevails to the extent of any inconsistency with the second test in Newbury or whether in fact s 80A(1) simply alters what “relates” to a development but still imports a requirement that a condition “fairly and reasonably” relates to a head of power in s 80A(1) (This is the view taken by Craig J in Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 (Cavasinni v Fairfield), paragraphs [24]–[26]), or that it be “fair and reasonable” in itself. • The first test in Newbury, that a condition must be for a planning purpose, refers to a purpose derived from the EPA Act. • The second test in Newbury, that a condition “fairly and reasonably relate” to the development, must be one which is fair and reasonable in the circumstances of the case. • For a condition to fairly and reasonably relate to the approved development, the development must be benefitted by the condition. The definition of what constitutes a benefit should be broadly approached. The condition does not need to directly relate to the approved development.

• In assessing what is fair and reasonable in the circumstances of the case, factors to be considered include: – the extent to which the approved development gives rise to the need for the condition – the extent to which the approved development will benefit from the condition – the extent to which other development will benefit from the condition, and – the extent to which the perceived benefit from the condition can actually be achieved. The extent to which the condition imposes a detriment or burden on the approved development and its owner, is a factor to be considered in applying the third Newbury test, but the issue of detriment and burden was not considered in relation to the second test in Newbury.

¶58-080 Botany Bay City Council v Saab Corp Pty Ltd In Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 (Botany v Saab), the NSW Court of Appeal heard an appeal against a decision in the NSWLEC that a condition of a development consent (requiring existing above ground electricity and telecommunications cables be placed underground at the applicant’s expense) was invalid on the grounds of uncertainty, or that it failed the second of the threepart test in Newbury, namely that the condition reasonably and fairly relates to the development permitted. Tobias JA (with whom Basten JA and Macfarlan JA agreed) held at paragraphs [67]–[69]: “67 I would interpolate at this point that as far as my researches go, the Newbury tests have been neither adopted nor rejected in this Court or by a majority in the High Court. 68 The Full Court of the Supreme Court of Western Australia applied Newbury in Temwood Holdings Pty Ltd v Western

Australian Planning Commission [2002] WASCA 10; 25 WAR 484. On appeal to the High Court, only McHugh J applied Newbury. However, it was also referred to by Callinan J at [155]. The other justices applied the legitimate planning purpose test adumbrated by Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499–500, a test also applied by McHugh J at [56] of Temwood. 69 However, no submission was made to this Court that the primary judge was wrong to apply the second Newbury test. The Council challenged his finding that it was not satisfied in the present case. As that is how the case was conducted below, it is appropriate that I should deal with the issue on the same legal basis.” Intermixed with the issue of the meaning of the tests in Newbury was a question of the actual construction of the condition in question, as to whether it required undergrounding of services in the street adjacent to the property, or within the streets in general. Tobias JA noted at paragraphs [80]–[83] that uncertainty itself may not give rise to invalidity where the condition does not comply with the statutory limits imposed on the power of the consent authority (citing Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23 (Kindimindi)). In this instance, Tobias JA held the condition not to be invalid as it did not contravene the statutory limit of power being exercised under s 80(1)(a) to impose a condition relating to a matter in the heads of condition in s 79C(1), particularly a Development Control Plan (DCP), which required undergrounding of services, and s 80(1)(f) requiring the carrying out of works relating to a matter referred to in s 79C(1). Hence, Tobias JA held the condition did not fail the second Newbury test and was not relevantly uncertain. Basten JA provided some additional observations in relation to the Newbury test. He held at paragraphs [8]–[9], [13] and [15]–[16]: “8 It is convenient to summarise the principles to be applied in this case in addressing the validity of condition 32, although, as with

most attempts to classify grounds of judicial review, the boundaries will be blurred and the categories will overlap: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). 9 First, the validity of a condition imposed on a development approval under the EPA Act falls to be considered within the terms of s 80A of the Act. (Other provisions may be relevant in specific circumstances: see, eg, s 83D in respect of staged developments.) Section 80A empowers the consent authority to impose a condition if ‘it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent’: s 80A(1)(a). Section 79C(1) identifies general matters for consideration by the consent authority in determining a development application. Those matters include ‘the likely impacts of that development … on both the natural and built environments and social and economic impacts in the locality’: s 79C(1)(b). These will obviously involve matters of evaluative judgment for the consent authority. In respect of any specific condition, there may be a question as to how distant, remote or indirect the relationship may be between that development and the likely impacts on the environment. … 13 Secondly, the validity of a condition of planning approval may be challenged on the basis that, although ostensibly within power, the condition was imposed for an ulterior or improper purpose. Although that language is often used more broadly, to include an objective assessment as to whether the condition is within power, it can also apply more narrowly to circumstances where, objectively speaking, the condition is within power but the consent authority acts for an invalid reason. … 15 Thirdly, an exercise of discretionary power may be capable of challenge as manifestly unreasonable, in the Wednesbury sense. However, that assessment will usually involve a comparison of the condition imposed with the scope and operation of the power

being exercised. In circumstances where the condition must, for the purposes of the first test, be reasonably related to the purposes for which the power may be exercised, the practical significance of this test may be limited to cases where the severity of the burden placed on the applicant is disproportionate to the consequences attributable to the proposed development. Thus, whereas it may be reasonable to impose on a developer of a significant subdivision an obligation to contribute to the cost of upgrading a dirt road to a sealed road, it may not be reasonable and appropriate to include the expense of expanding the road from two lanes to four: see Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386 at 388 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ agreeing) in relation to a legitimate upgrading condition. Even where the expense sought to be recovered is thus disproportionate to the costs of a reasonable level of upgrading, there would, in all likelihood, be an available challenge on the basis of an improper purpose, under the first or second principles set out above. 16 Accepting that the tripartite test set out above broadly reflects the principles adopted by the majority in Temwood, the language used by McHugh J at [57], should not be seen to be problematic. However, his Honour’s juxtaposition of the second and third conditions, one adopting an affirmative test of reasonableness and the other a negative test of manifest unreasonableness may tend to confuse. Similarly, the second test requires the court to determine whether the condition ‘reasonably and fairly relates to the development’. That appears to impose an objective test to be assessed by the reviewing court, rather than a legal boundary, within which the consent authority may legitimately determine what is reasonable and fair. Further, the second limb (‘fairly relates’) should not be understood to permit judicial review for substantive unfairness, which exercise would not be consistent with established authority in Australia.” Conclusions The following conclusions may be derived from Botany v Saab:

• A condition of a development consent will not necessarily be invalid because it may be uncertain or lack specificity or particularity. It will only be invalid if it goes beyond the statutory limit of the power being exercised which, in this case, is the class of conditions permitted by s 80A of the EPA Act. A condition requiring the undergrounding of services, in circumstances where a DCP requires this, can be imposed under s 80A(1)(a) being a matter relating to a head of consideration in s 79C(1) and 80A(1)(f) being a requirement to carry out works relating to a matter referred to in s 79C(1). According to Basten JA, the approach to determining validity of a condition of a development consent is to ask the following questions: • Is the condition authorised by s 80A of the EPA Act? • If the condition is ostensibly within power, was it imposed for an ulterior or improper purpose? • Is the condition manifestly unreasonable in the Wednesbury sense? Some specific types of conditions which have been subject to challenge on the grounds of invalidity are as follows: • a condition requiring the registration of restrictions as to user under the Conveyancing Act 1919 (NSW) in the form of Restrictive Covenants under s 88B thereof (For a discussion of the doubts as to the validity of such conditions, see MacDonald v Mosman Council [1999] NSWLEC 215 (MacDonald v Mosman) (Lloyd J in the NSWLEC).), and • a condition requiring that the applicant provide an indemnity or release to the Council. Such conditions were held to be ultra vires in Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGR 5 (Galandon) and Hutchinson 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151 (Hutchinson 3G).

¶58-090 Gough and Gilmour Holdings Pty Ltd v The Council of the City of Holroyd In Gough and Gilmour Holdings Pty Ltd v The Council of the City of Holroyd [2002] NSWLEC 108 (Gough & Gilmour), Talbot J in the NSWLEC held at paragraphs [19] and [24]–[25] as follows: “19 There is support for an argument that where ambiguity occurs in a development consent it should be construed against the interests of the council rather than the interests of the developer (Ryde Municipal Council v The Royal Ryde Homes and Another (1970) 19 LGRA 321 at 324 and Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51 at 57). The difficulty with the present case is the Court is not dealing with an ambiguity but rather the absence of a definitive direction or specification in respect of the terms of the easement. It is not, therefore, a question of construing the conditions of consent in a way that favours the developer. Rather, the Court is being asked to add that which has been omitted. This situation contrasts to the Court’s role in class 1 proceedings where the capacity of the Court to make provisions is not so limited. The grant of development consent is a unilateral act. It is not for the Court in class 4 proceedings to infer an agreement between the parties or to imply a term as if it was part of a bilateral transaction (Parramatta v Shell Co Australia Ltd). … 24. The Court is here engaged in the process of interpretation. It is doubtful that a court can read words into a development consent. The principle has been enunciated in the context of statutory interpretation. For example, when Gibbs J cited the authority of Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 191–2 in support of his observations made at p 12 in The Council of the City of Parramatta v Brickworks Limited (1971–1972) 128 CLR 1 to the effect that it is not for the courts to fill any gap that may unintentionally have been left in a statute. 25. Nevertheless, in my view, the Court may imply words by

reading them into a development consent by use of a purposive approach to give effect to the underlying purpose of the development consent or a particular condition of consent …” Conclusions The following conclusions may be derived from Gough & Gilmour: • Where ambiguity occurs in a development consent, it should be construed against the interests of the consent authority, rather than the interests of the applicant. • Where there is an omission from a development consent, it is doubtful that a court can read words into a development consent. But a court may imply words in a development consent by applying a purposive approach to give effect to the underlying purpose of the development consent or a particular condition.

¶58-100 Principles regarding validity of conditions of a development consent The key principles derived from the discussion on the validity of conditions of a development consent are as follows: Principle 1: In determining a DA, a consent authority is empowered to grant development consent subject to conditions (s 80(1) of EPA Act). For a condition imposed on a development consent to be valid it must be of a type authorised by s 80A (s 80A of EPA Act). Principle 2: For a condition of a development consent to be valid it must comply with two requirements: (1) the statutory phrases in s 80A of the EPA Act, and (2) the three tests in Newbury, namely that the condition is for a planning purpose, it fairly and reasonably relates to the development, and it is not so unreasonable that no consent authority would have imposed it. Compliance with both of these two requirements is necessary (Hammersmith, Dogild).

Principle 3: The Newbury tests provide three tests for the validity of a condition imposed on a development consent: (1) the condition must be for a planning purpose, and not any ulterior one (2) the condition must fairly and reasonably relate to the development (the subject of the DA), and (3) the condition must not be so unreasonable that no reasonable planning authority could have imposed it, as provided in Wednesbury. The Newbury tests apply in New South Wales (Hammersmith, Temwood, Dogild) and are derived from the provisions of s 80(1) and s 80A of the EPA Act. Principle 4: A consent authority can lawfully attach conditions to a development consent if they are reasonably capable of being related to the purpose for which the function of determining a DA is being exercised, and that purpose must be ascertained by reference to the statutory provisions (Allen Commercial Constructions, Temwood). Principle 5: Compliance with the first Newbury test (namely, that the condition is for a planning purpose) would generally be satisfied if one or other of the statutory requirements of s 80A are met, and it is for a purpose authorised by the EPA Act (Hammersmith, Dogild). Principle 6: A condition reasonably and fairly relates to a proposed development if: • it falls within the proper limits of the consent authority’s functions, or is imposed to maintain proper standards in local development (Hammersmith, McHugh J in Temwood) • it relates to a larger parcel of land of which the land (the subject of the application) forms part, even though it does not relate to the land (the subject of the application) (McHugh J in Temwood) • it is imposed in good faith and not to achieve extraneous purposes (McHugh J in Temwood)

• the development is benefited by the imposition of the condition, construed broadly and including environmental protection reasons (McHugh J in Temwood, Dogild) • the need for the condition arises from the development (Dogild), and • it is fair and reasonable in the circumstances of the case (Dogild, Callinan J in Temwood). Principle 7: The power to impose conditions in s 80A is extended beyond what is otherwise included under the second Newbury test and hence, the application of the second Newbury test is likely to require that a condition fairly and reasonably relate to one of the statutory powers to impose conditions in s 80A (Cavasinni v Fairfield). Principle 8: A condition of a development consent will not necessarily be invalid because it may be uncertain or lack specificity or particularity. It will only be invalid if it goes beyond the statutory limit of power being exercised under s 80A of the EPA Act (Botany v Saab, Kindimindi). Principle 9: The approach (or questions that should be asked) when determining the validity of a condition of a development consent is as follows: • Is the condition authorised by s 80A of the EPA Act? • If the condition is ostensibly within power, was it imposed for an ulterior or improper purpose? • Is the condition manifestly unreasonable in the Wednesbury sense? (Basten JA in Botany v Saab) Principle 10: A condition of a development consent which requires the applicant to provide an indemnity or release to the Council is beyond power (Galandon, Hutchinson 3G), as is likely in the case of a condition requiring the registration of a restriction as to the user of the

land title (MacDonald v Mosman). Principle 11: In construing a development consent: • where ambiguity occurs in a development consent, it should be construed against the interests of the consent authority rather than the interests of the applicant, and • where there is an omission from a development consent, it is doubtful that a court can read words into a development consent. A court may, however, imply words in a development consent by applying a purposive approach to give effect to the underlying purpose of the development consent or a particular condition. (Gough & Gilmour)

DEVELOPMENT CONTRIBUTIONS ¶59-010 Special class of conditions — applicant requirement to contribute money or land The Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) authorises the imposition of a special class of conditions on a development consent requiring the applicant to contribute money or land for public amenities and public services where the development (the subject of the consent) will, or is likely to, require the provision of those public amenities and public services, or is likely to increase the demand for these. The EPA Act provides for a number of different kinds of development contributions, as follows: • Planning agreements between a developer and a planning authority. A planning agreement is a voluntary arrangement and may be linked with a requested change to an Environmental Planning Instrument (EPI) to rezone land or the lodging of a development application (DA). Hence, a planning agreement is not a condition imposed on a development consent, but may be associated with a rezoning proposal, or a DA, or a DA proposal. A

planning agreement may (but is not required to) exclude the application of other kinds of contributions. • A condition of a development consent imposed by a consent authority under s 94 requiring the dedication of land free of cost and/or the payment of a monetary contribution for public amenities and services, provided such a condition is authorised by a Contributions Plan. • A condition of a development consent imposed by a consent authority under s 94A requiring the payment of a levy of a percentage of the proposed cost of carrying out the development, provided such a condition is authorised by a Contributions Plan. A condition requiring payment of a fixed percentage levy cannot be imposed together with a condition under s 94. Thus, a fixed levy is an alternative to a s 94 contribution and cannot be imposed in addition to a s 94 contribution. • A condition of a development consent imposed by a consent authority at the direction of the Minister under s 94EF for a Special Infrastructure Contribution. Such Special Infrastructure Contributions can only be imposed as a condition of a development consent applying to land with a special contributions area established by the Minister (mainly growth centres). A Special Infrastructure Contribution is either money, or may be the dedication of land or the provision of a material public benefit. A Special Infrastructure Contribution is for the provision of infrastructure (broadly defined in s 94ED). Conditions of a development consent are not subject to appeal to the Land and Environment Court of NSW (NSWLEC) (s 94EF(6)). A Special Infrastructure Contribution may be required by a condition of consent in addition to a s 94 contribution or a fixed percentage levy. • Conditions relating to affordable housing requiring contributions of land or money under Div 6A of Pt 4 of the EPA Act (s 94F–94G) where a State Environmental Planning Policy (SEPP) identifies a need for affordable housing within the area. SEPP (Affordable

Rental Housing) 2009 applies to land within the Sydney region and the Newcastle and Wollongong City Local Government Areas (LGAs). The SEPP also applies to DAs relating to buildings that were low rental residential buildings as at 28 January 2000, and authorises contribution conditions if the proposed development will, or is likely to, reduce the availability of affordable housing within the area under cl 47–51 of the SEPP. In addition, separate and additional contributions may be levied for water and sewerage works. These are not levied under the EPA Act but under the Water Management Act 2000 No 92 (NSW) (WM Act), s 305–322. Prior to the enactment of the EPA Act, there was no special provision in Pt 12A of the Local Government Act 1919 (NSW) or under prescribed planning scheme ordinances relating to the imposition of conditions on a consent in relation to development contributions. To the extent that such conditions were lawful, they relied upon the general power for imposing conditions on a development consent. Despite the uncertainty as to their validity, prior to the introduction of the EPA Act, it was common practice for councils to impose conditions of consents requiring monetary contributions for matters such as parking or open space. The position of the courts regarding such common practices reflected an uneasy tension between the absence of a clear statutory authorisation for such provisions and recognition of the practical utility of such conditions in responding to development proposals.

¶59-020 Rockdale Municipal Council v Tandel Corporation Pty Ltd This uneasy tension is reflected in Rockdale Municipal Council v Tandel Corporation Pty Ltd (1975) 34 LGRA 196 (Tandel), a decision of the NSW Court of Appeal. This case involved an appeal against a verdict in the District Court in favour of the developer, Tandel, requiring the repayment of $3,000 paid by Tandel to the Council as development contributions which related to an approval for the

erection of a three-storey residential flat building in Kogarah. The Council had indicated that it would grant approval, subject to conditions which included a contribution of $3,000 in lieu of providing 400 square feet of open space per unit within the site. The developer paid the money and the Council granted approval unconditionally. The developer did not lodge a merit appeal against the Council decision but sold the site with the benefit of the approval (and a profit of nearly 50%, having owned the site for only two months). Thereafter, the developer sought to recover the $3,000 paid to the Council for contributions to open space and was successful in the District Court. The NSW Court of Appeal allowed the appeal and remitted the action for a new trial. A significant issue was the validity of the requirement for a contribution. Glass JA (with whom Samuels JA agreed) held at p 203–206 as follows: “There was much debate at the trial touching the question whether the Council had power to levy a contribution in the manner proposed as a condition of giving its consent to a development. For the developer it was contended that such a levy was upon proper analysis a tax invalidity imposed because the statutory conditions respecting rates had not been observed. For the council it was argued that the Council could lawfully exact a contribution to be used with other contributions to provide open space which, because of its proximity to the development, was reasonably connected with it. … [p 204] Since it is necessary to remit the action to the District Court to obtain a determination of the questions involved, it is perhaps desirable to express some views on the questions of law which have been debated before this Court. A number of cases have referred to the question whether a council may impose as a condition of its consent the payment of money to be used by it for the provision of a facility the developer might be required validly to provide. In Woolworths Properties Pty Ltd v Ku-ring-gai Municipal Council ((1964) 10 LGRA 177) the following passage

appears: ‘It may well be that a question of fact or degree must arise in each case as to whether a public facility is so placed or regulated that it can be so identified or restricted, but in the present case I should not wish to say more than that any power to require a contribution of money towards the provision for parking space, whether by the imposition of a condition or otherwise, cannot in my view be exercised unless the facilities, actual or proposed, are so situated, and defined in such a fashion, as to enable a decision to be reached that they are capable of being identified with or restricted to use in connection with the proposed development.’ The question was further considered by Else-Mitchell J. in Gillott v Hornsby Shire Council ((1964) 10 LGRA 285, at p.290), where he said in reference to the preceding passage: ‘I think it would not be inconsistent with this statement to say that the council might have been able, before allowing any industrial development in this area, to require a contribution from each developer towards the construction of new access facilities which would solely or mainly serve the land on which new industries were established in the area; in illustration, it could construct a new road, refrain from dedicating it to public use, and make a charge in the nature of a toll or otherwise for that use.’ In Jumal Developments Pty Ltd v Parramatta City Council ((1969) 17 LGRA 111, at p.113), the same judge expressed the following opinion: ‘It is, moreover, not to the point to say that because a levy of money cannot be imposed there is no power to require the dedication of land. The levy of money as a condition of the exercise of a statutory discretion has always been regarded as suspect because it need not necessarily be related to the lawful exercise of the power conferred so that it assumes the character of an exaction or tax (cf. The Commonwealth v

Colonial [p 205] Combing, Spinning and Weaving Co. Ltd (1922) 31 CLR 42; Attorney-General v Wilts United Dairies Ltd (1922) 91 LJKB 897, Ex parte Australian Property Units Management [No. 2] Ltd; Re Baulkham Hills Shire Council ((1962) 9 LGRA 115, at p.121).’ The problem has been most recently encountered in Granville Developments Pty Ltd v Holroyd Municipal Council ((1969) 18 LGRA 34 at pp.38, 39) which contains the following observations by Else-Mitchell J.: ‘In the present cases the construction of blocks of flats with inadequate open space adjoining or nearby could undoubtedly lead to interference with the amenity of the neighbourhood, but before a money payment could be required to enable a council to acquire or provide some open space to make good this inadequacy the council should surely have taken the course of refusing the development or granting consent conditionally upon the developer acquiring other land adjoining or nearby so as to provide some open space, or by requiring the building owner to reduce the magnitude of his development so that each building would stand in grounds of ample extent. This is a course which is plainly open to a council under most planning scheme ordinances, which confer powers extensive enough to require the dedication to public use as open space of some part of the land to be developed (cf. Jumal Developments Pty Ltd v Parramatta City Council (1969) 17 LGRA 11). It may be proper, as an alternative to the imposition of some such condition, for a council to require the payment of a sum of money to enable it to provide an appropriate or corresponding area of open space nearby, but I am at the moment, for reasons set out in other decisions I have given, not able to agree that payment of a sum of money at large can be required as a condition of granting consent to a

development which generates some demand for or greater use of facilities of a public nature.’ It will be seen that the learned judge’s views have moved by perceptible degrees from the position first adopted by him in Woolworths Properties Pty Ltd v Ku-ring-gai Municipal Council (supra) that contributions could not be levied except for facilities restricted to use in connexion with the proposed development. In Gillott v Hornsby Shire Council (supra) money could be exacted for facilities which mainly served the development. In Jumal Developments Pty Ltd v Parramatta City Council (supra) the validity of a contribution so framed as to be related to the power to approve the development was conceded and in Granville Developments Pty Ltd v Holroyd Municipal Council (supra) the previous decisions are explained as prohibiting only the payment of a sum of money at large. The position is, with respect, accurately stated in the last two passages. The general nature of the Council’s power has been defined by Walsh J. in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council ((1970) 20 LGRA 2108), at p.216, with which Barwick C.J., Menzies and Windeyer JJ. agreed as follows: ‘In accordance with a well-recognized rule, s 40 (1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for [p 206] which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council (1961) AC 636 at p.684), as being ‘the implementation of planning policy’, provided that it is borne in mind that it is from the Act and from any relevant

provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained.’ The test of validity having been expressed in such wide terms it is not possible in my opinion to state a priori that all conditions involving a money payment lack validity. It will no doubt be impossible to justify the collection of money with which the Council intends merely to augment its revenue or which it proposes to spend on certain purposes without any obligation to do so. But I consider that a council may arguably claim that it has imposed a valid condition in circumstances where residential development in a given area will create a need for additional open space if the amenities of the neighbourhood are to be preserved, the provision of open space on the development site is not commercially feasible, money collected from each developer is to be expended on the provision of such open space, the money is impressed with a trust which would prevent its expenditure for any other purpose and the space to be provided is proximate enough to the site to present a reasonable connexion with the needs generated by development on it. It goes without saying that the relationship between the proposed development and the proposed facility raises questions of degree and therefore of fact which the trial judge will determine by applying to his findings on the evidence the appropriate measure of validity expressed, as it must be, in the general language adopted by the High Court …” Thus, Glass JA, in Tandel, did not rule out all conditions of a consent requiring a development contribution as being invalid, but guardedly considered in some circumstances they may arguably be valid where: • the development in question created a need for a public amenity • other means of meeting the need are not feasible • moneys collected are expended for the purpose for which they were contributed, and/or • the amenity to be provided is proximate enough to have a

reasonable connection with the needs generated by the development. In Tandel, Moffitt P was even more guarded, preferring to leave the validity of conditions requiring development contributions as being an open one. Moffitt P appeared to doubt their validity based upon the absence of provisions as to the management of funds collected. Moffitt P held at p 199 as follows: “It appears that of fairly recent times it has been the extensive practice of some councils to impose conditions to development consents requiring the payment of money. Councils and developers have an interest in this type of question. It is important that an interested party be not disadvantaged by having a decision considered adverse, which cannot be tested by further appeal. This very problem in this very field is illustrated by litigation resulting in the decision of this Court given today in Greek Australian Finance Corporation Pty Ltd v The Council of the City of Sydney ((1974) 29 LGRA 130). Certainty is called for. If the field is one where the power to impose conditions upon the grant of development consents ought desirably to be wide enough to include the imposition of conditions requiring money contribution to Council development projects in which the public generally is interested, as well may be desirable, there would be much benefit in a legislative amendment expressly granting the power and providing express financial provision within the scheme of Pt VII of the Local Government Act ensuring use for properly designated purposes: Cf. s 333 (2). In default of any such amendment, it is better in my view that the determination of this class of question be reserved by this Court until it can be directly and authoritatively decided and an aggrieved party can, if he wishes test our decision upon appeal.” The issue of legislative clarification of the powers relating to development contributions was addressed in the original EPA Act in 1979. It included in the then s 94 a power for a council as consent authority to condition a development consent with a requirement to pay a monetary contribution or dedicate land free of cost where it was

“… satisfied that a development, the subject of a DA, will or is likely to require the provision of or increase the demand for public amenities and public services within the area” (s 94(1)).

¶59-030 System of development contributions in the original 1979 legislation under s 94 In the original 1979 EPA Act, the system of development contributions had the following features: • The applicable EPI was required to identify the likely increased demand for public amenities and public services arising from the carrying out of development under the EPI and to authorise that a dedication or monetary contributions or both may be required as a condition of consent (s 94(2)(a)), with an exemption for deemed EPIs (s 94(7)). • The dedication or contribution was required to be reasonable (s 94(2)(b)). • Monetary contributions were to be held in trust (s 94(3)). • Monetary contributions were to be applied to the purposes for which they were raised within a reasonable time and in such a manner as would meet the increased demand for amenities and services (s 94(3)). • Previous contributions should be considered in setting new contributions (s 94(5)) and measures put in place to prevent double dipping by public authorities (s 94(6)). The inclusion of s 94 in the original EPA Act and the broad purposes for which contributions could be levied (ie for public amenities and public services) recognised a changing approach towards urban infrastructure funding, particularly in regard to: • the time lag between the development (particularly new residential developments) and the provision of supporting amenities and services

• the increased range and level of public amenities and public services expected by the community • the financial constraints applying to public authorities (particularly local councils) and the diminished likelihood of significant new inputs of funding by the Commonwealth and states to meet demands for public amenities and public services in cities and towns • a greater reliance by governments on the user-pays system of funding, and • the equity issues involved in shifting from infrastructure funded from general rate and tax revenues to infrastructure funded by developers and passed on to purchasers (particularly that which relates to new homes). In essence, s 94 permitted a shift towards developer-funded infrastructure and away from public funding of urban infrastructure. This primarily arose from the government recognition that public funding was unlikely to have the capacity to provide the necessary urban infrastructure in a timely manner. It was thought that a copayment that was ultimately borne by the purchasers of new developments, while adversely affecting new housing affordability, was justified (on balance) because the necessary public amenities and services were then provided in a more timely manner. This had the result of improving the quality of life, subject to the level of the contribution capable of being checked to calibrate the trade-off between community benefits and impact on housing affordability. Since its introduction in 1979, the issue of the correct calibration between benefits and cost has been a significant issue in the operation of the development contributions provisions in the EPA Act.

¶59-040 Impact of the 1985 Amendments The provisions in s 94 regarding development contributions were amended through the introduction of the Environmental Planning and

Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments). The 1985 Amendments, so far as they related to development contributions, made the following changes: • They removed the requirement for the relevant EPI to identify a likely increased demand for public amenities and public services and to authorise conditions requiring contributions. • They enabled contributions to be levied for public amenities and/or public services which benefit a development, irrespective of whether those public amenities or public services have already been provided or are proposed to be provided in the future. Hence, they enabled contributions towards recoupment of expenditure already undertaken. • They empowered the Minister to issue directions regarding the types of public amenities or public services in relation to which contributions could or could not be imposed and the method of calculating such contributions, and the maximum consent of contributions (s 94A). In removing the specification in advance in an EPI of when contributions were required and authorising the imposition of conditions requiring contributions, the 1985 Amendments largely removed any requirement for clear parameters for the imposition of conditions. Despite the new provision for Ministerial Directions, directions were only issued in relation to Dual Occupancy Housing for the Aged or Disabled Persons and Multiple Occupancy. Significant inconsistencies emerged with an extension of contributions for community service facilities and the absence of standard methods for calculating contributions.

¶59-050 Simpson Inquiry In 1989, the Minister for Local Government and Minister for Planning, David Hay MP, appointed a Commission of Inquiry under Mr William

Simpson to examine and report on: • whether there should be a limit on the types of services for which contributions may be levied • whether there should be a limit on the amount of contributions, and • the operation of the development contributions system. The Simpson Inquiry reported in October 19891 and recommended the continuation of the system of development contributions imposed as conditions on development consents. The Inquiry concluded as follows: “Notwithstanding the achievements of certain councils, there remains a necessity for greater consistency between councils as to methods by which the need for facilities are determined, the quantification and financial implications, both short and long term, of the needs satisfaction method adopted and justification of such actions in the public arena. These circumstances dictate that each council prepare a structure/management plan or plans geared to an implementation program and fiscal strategy to enable efficient, economic and equitable administration of the Section 94 contribution system.” Following the Simpson Inquiry and a Discussion Paper by the Department of Planning,2 the legislation regarding contributions was amended in 1991 by the Environmental Planning and Assessment (Contribution Plans) Amendment Act 1991 No 64 (NSW) (1991 Amendments) and in 1992 by the Environmental Planning and Assessment (Contributions Plans) Amendment Act 1992 No 89 (NSW). These amendments provided for the following: • conditions of consent imposing a s 94 development contribution could only be imposed if they were of a kind allowed by and determined in accordance with a Contributions Plan prepared under the EPA Act

• the preparation, public exhibition and adoption by councils of a Contributions Plan specifying the relationship or nexus between the expected types of future development and the demand for additional public amenities and services to meet that development, the formulas to be used to determine contributions, and contribution rates for different types of development • conditions of a kind allowed by a Contributions Plan may be disallowed or amended by the Court on appeal if they were unreasonable, even if they were determined in accordance with such plan, and • removal of the requirement that the contribution money be held in trust for the purpose for which payment was required, and the inclusion of a requirement that the money be held for the purpose for which it was levied and applied towards that purpose within a reasonable time. The consequence of the deletion of the words “in trust” was explained by the NSW Court of Appeal in Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107 (Frevcourt) at paragraph [37] as meaning that such contributions were no longer held in trust, but that even with the removal of that requirement, contributions must be held and applied by the Council for a public purpose as required by s 94. The operation of these new provisions was supported by a detailed “Section 94 Contributions Plan Manual” prepared by the Department of Urban Affairs and Planning (DUAP).3 Footnotes 1

Simpson, W, October 1989, “Report to the Honourable David Hay, Minister for Local Government and Minister for Planning”, An Inquiry pursuant to Section 119 of the Environmental Planning and Assessment Act 1979 with respect to Operation and Practices Associated with Contributions under Section 94 of the Environmental Planning and Assessment Act, 1979, Commissioners of Inquiry for Environment and Planning, Sydney, ISBN 0

7305 5761 8. 2

Department of Planning, 1990, Guidelines for Levying Section 94 Contributions: Discussion Paper, Sydney, ISBN 0 7305 7055 X.

3

Department of Urban Affairs and Planning, 1992 (1st edition), 1997 (2nd edition), Section 94 Contributions Plans Manual, Sydney, ISBN 0 7310 9093 4.

¶59-060 Further amendments and review of the system of development contributions Following the decision in Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435 (discussed later at ¶59-130), the EPA Act was amended by s 4 and Sch 2 of the Local Government (Consequential Provisions) Act 1993 No 32 (NSW) to provide that s 94 does not apply to public amenities or public services comprising water supply or sewerage works. Section 4 and Sch 2 of the Act also amended the Water Supply Authorities Act 1987 No 140 (NSW) (WSA Act) to authorise water supply authorities to levy developers as part of the issue of a compliance certificate towards the cost of water and sewerage works. With the repeal of the WSA Act, these provisions are now found in Ch 6 Div 5 of the WM Act at s 305–307. With the repeal of Pt 4 and introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW), the former provisions regarding development contributions were transposed in substantively the same terms into the new Pt 4. In 2000, the NSW Parliament enacted the Environmental Planning and Assessment Amendment (Affordable Housing) Act 2000 No 29 (NSW), the aim being to reverse the decision of Lloyd J in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 20 (Meriton Apartments v Minister) which held that levies for

affordable housing, as a condition of a development consent, were beyond power (this case is discussed in Chapter ¶3 at ¶3-110). The amendments also inserted in the EPA Act the authority to impose conditions on a development consent requiring contributions of land and money for affordable housing, as identified in a SEPP in the new s 94F–94G of the EPA Act, and to validate previously operating affordable housing provisions in EPIs. A further review of the system of development contribution was undertaken for the DUAP by the Section 94 Review Committee, leading to the release of a discussion paper in April 2000.4 The Section 94 Review Committee recommended an amendment to the EPA Act to provide for a developer agreements scheme as another form of development contributions. Following a public consultation process and a further taskforce, the NSW Parliament enacted the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005 No 19 (NSW) (2005 Amendments).5 These amendments provided for the following changes: • they permitted voluntary planning agreements between a developer and public authorities • as a condition of a development consent, they permitted the imposition of a fixed percentage levy on the cost of a development as an alternative to s 94 contributions, provided that the levy was authorised and applied in accordance with a Contributions Plan, and • they permitted the pooling of monetary contributions paid for different purposes and such monies then being applied to other purposes for which contributions were also required, provided that such funds would still be applied for a purpose for which they were raised within a reasonable time. In 2006, the contributions provisions of the EPA Act were further amended by the Environmental Planning and Assessment Amendment Act 2006 No 8 (NSW) and subsequent adjustments by the Environmental Planning Legislation Amendment Act 2006 No 123

(NSW). These changes resulted in the following: • the establishment of Special Contributions Areas, being land within any growth centre, and authorisation of the imposition as conditions on a development consent for “Special Infrastructure Contributions” • Special Infrastructure Contributions , which were for the provision of infrastructure specified in s 94ED and extended beyond the scope of s 94 from public amenities, public services and affordable housing to transport and other infrastructure relating to land, funding of recurrent expenditure, and conservation and enhancement of the natural environment. As a consequence of the changes, the NSW Court of Appeal decision in Hammersmith was reversed. The amendments in 2006 also led to the inclusion of the preparation of reports, studies and investigations within the scope of s 94 • there was no requirement for Special Infrastructure Contributions to be reasonable and merit reviews of such contributions by the NSWLEC were precluded (s 94EAA(4) and s 94EF(6)) • provision was made for a Special Contributions Areas Infrastructure Fund, and • the renaming of s 94 contributions and fixed percentage levies under a new general category of “Local Infrastructure Contributions”. The Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW) provided for the complete repeal of Div 6 and 6A of Pt 4 of the EPA Act (s 93C–94G), being all the provisions relating to development contributions, including those relating to planning agreements, s 94 Local Infrastructure Contributions, fixed percentage levies and Affordable Housing, and their replacement by a new Pt 5A in the EPA Act concerning Provision of Public Infrastructure (s 116A– 116W). These amendments have not been proclaimed to commence and hence, do not currently apply. Footnotes

Footnotes 4

Department of Urban Affairs and Planning, May 2000, Review of the Developer Contributions System, Section 94 Environmental Planning and Assessment Act 1979: Report to the Minister for Urban Affairs and Planning, Section 94 Review Committee, Sydney, ISBN 0 7347 0105 5.

5

NSW Parliament, 8 December 2004, “Ministerial Second Reading Speech by Graham West MP, Parliamentary Secretary”, NSW Legislative Assembly Hansard.

¶59-070 Changes to infrastructure levies In response to concerns regarding the impact of development contributions on housing supply and affordability and the need to provide stimulus to the construction industry, in December 2008, the then Premier, Nathan Rees MP, announced a series of changes to infrastructure levies. These included the following:6 “• A change to the way that State infrastructure contributions are calculated, by removing rail infrastructure and bus subsidies — leading to a reduction in the charges. • Allowing for the deferral of the point at which developers pay the State infrastructure contribution to the point of sale of a new residential lot (to improve cash flow). • Establishing a $20,000 threshold for local government contributions applying to residential dwellings. Councils will only be able to charge above the threshold if they have the approval of the Minister for Planning. • Requiring councils to provide existing contributions plans that would allow for contributions above the $20,000 threshold to the Government for an evaluation of the plan. • The immediate cessation of water infrastructure charges

imposed by Sydney Water and Hunter Water.” Section 94(5)(b) gives a consent authority the discretion to accept the provision of a “material public benefit (other than the dedication of land or the payment of a monetary contribution” in part or full satisfaction of a development contribution imposed under s 94(1). Footnotes 6

NSW Government, Department of Planning, 23 December 2008, Contribution, Planning Circular PS08–017, p 1. See www.planning.nsw.gov.au/planningsystem/pdf/ps08_017_review_infrastruct

¶59-080 Planning agreements The key features of planning agreements are as follows: • A planning agreement is a voluntary agreement between a developer and one or more planning authorities (being all public authorities under cl 25A of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation)) where the developer or associated person has sought a change in an EPI or has made or proposed to make a DA. A planning agreement can require a developer to dedicate land free of cost, pay a monetary contribution or provide “any other material public benefit” to be used or applied for a public purpose (s 93F(1)). • “Public purpose” is defined expressly in s 95F(2) to be broader than the public amenities or public services to which s 94 applies. • A planning agreement must contain the following compulsory elements specified in s 93F(3). • A planning agreement may exclude the operation of s 94 (development contributions), s 94A (fixed percentage levy) or s 94EF (Special Infrastructure Contributions), but only if the

consent authority for the development or the Minister is a party to the agreement (s 93F(3A)(7)). • A planning agreement does not require any connection between the development and the object of expenditure of any money paid (s 93F(4)). • A planning agreement cannot impose an obligation of a planning authority which would fetter its discretion, particularly in relation to the granting of development consent (s 93F(g)). • Planning agreements can be registered on the title of land (s 93H). • A planning agreement may be required as a condition of a development consent, but only where it reflects an offer made to the consent authority by a developer (s 93I(3)) and not otherwise (s 93I(1)–(2)). The EPA Regulation provides detailed provisions regarding: • the public notice of planning agreements, the requirement for an explanatory note, public access to planning agreements and coming into force of planning agreements (at cl 25B–25H) • section 94 Contributions (at cl 25I) in relation to indexation of the recoupment of costs for public amenities and public services in s 94(3), reversing part of the Allsands decision • fixed percentage levies (at cl 25J–25K) in relation to how the cost of carrying out a development is determined and the setting of a maximum percentage levy, depending on the cost of carrying out the development, ranging from nil up to 1% for developments with a cost of being carried out of more than $200,000, and greater levies for some specific areas • preparation and approval of Contributions Plans (at cl 26–33A) (Importantly, cl 27 specifies the compulsory requirements for the contents of a Contributions Plan.), and

• accounting requirements for contributions (at cl 34–36).

¶59-090 Building Owners and Managers Association of Australia Ltd v Sydney City Council In Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 (BOMA), Cripps J in the NSWLEC heard a challenge to the validity of a policy of the Sydney City Council which related to low income housing requiring payment of a two percent contribution of the estimated cost of developments, where that cost was $200,000 or greater. Cripps J referred to the nature of a consent authority’s power in imposing conditions on a development consent in Allen Commercial Constructions and in Newbury. Cripps J then held at p 70–71: “… the power of a council to impose a monetary contribution depends upon the establishment of a direct connexion between the development the subject of the contribution and the works, activities, services or amenities for which the contribution is claimed. Whether s 94 is the exclusive code for the imposition of monetary contributions need not be determined in these proceedings. But where a contribution is sought for the provision of a ‘public service’, within the meaning of s 94, the requirements of that section must be met, in my opinion, before such a contribution can be lawfully exacted. However, the reasoning which leads me to conclude that this policy and its application to each development is beyond the power of the council does not depend upon whether the condition proceeded from s 91(3)(a) or s 91(3)(h). The resolution referred to as the plan of action was passed by the council in purported exercise of its power to administer the planning and environmental legislation … What must be considered is the council’s conduct, not what label is placed on that conduct. The resolution of the council and the conduct of council’s officers pursuant to that resolution make it clear, in my opinion, that the council would not permit development to proceed until contribution was made to its Public Housing Trust Fund. In these

circumstances it strains credulity to characterize the payments as a series of voluntary contributions in the sense contended for by the council. They were contributions sought and made in the context of the council’s exercise of its planning power. The council pursued a policy consequent upon its resolution, of no contribution, no development. A method of implementing that policy was to refuse to release building plans until the contribution was paid. Until the building plans were released, any building work undertaken by the developer was unlawful. It is therefore unnecessary for me to determine the purely hypothetical case of a developer anxious to make a donation to the city council for some purpose that is not relevantly connected with the development and the capacity of the council to receive that sum of money as a gift. In the instant case all payments were claimed and made in the context of obtaining development consent or building approval for the purpose of permitting the development to proceed. The purpose of the resolution of the council, as is evidenced by its terms and the council’s subsequent conduct, was to effect the result that until each developer paid 2 per cent of the cost of the development work in excess of $200,000, the development would not proceed. Approval by the council for the carrying out of development, i.e. the granting of building approval without which any work was unlawful, was conditional upon payment of money to the council’s Public Housing Trust Fund. Whether it was a condition annexed to the consent or approval (as I think it was) or whether it was a condition precedent to the granting of building approval, cannot affect the result. It is to the substance that the court must look and not to the form. [p 71] The council did not, prior to the passing of its resolution nor at any time thereafter, seek to establish any connexion between the plan of action resolved upon and any particular development. Indeed, the conduct of the council in its application of the policy indicates there was none. The relevant provisions of the Act require the authority to take into account such matters ‘as are of relevance to

the development the subject of that development application’: s 90. It allows conditions to be imposed relating to any matter of ‘relevance to the development the subject of consent’: s 91. A monetary contribution for public amenities or services requires the council to be ‘satisfied that a development the subject of a development application, will or is likely to require the provision of or increase the demand for public amenities and public services’: s 94. The council by its resolution sought to adopt a policy which, in terms, precluded it from considering any individual case on its merits and, so long as it is in force, obliges the council to refuse building approval if the contribution is not made. In my opinion, the resolution is invalid and the conduct of the council is unauthorized. Council has conceded that unless restrained by an order of this Court it will continue to implement the plan of action in the manner it has in the past. In my opinion, the court ought to declare the resolution invalid and make the declarations and orders sought.” Conclusions The following conclusions may be derived from BOMA: • The power of a consent authority to require a monetary contribution depends upon the establishment of a “direct connection” between the development and the amenities or services for which the contribution is claimed. • Where monetary contributions are sought in the context of the consent authority’s exercise of its planning power, such contributions are unlikely to be voluntary. • There was no attempt to establish any connection between the purposes of the contribution and the development (the subject of the DA) before imposing a requirement for a contribution. • Where a consent authority adopts a policy which precludes any consideration of the merits and obliges the consent authority to refuse consent if no contribution is made, such conduct is unlawful.

¶59-100 Fitch v Shoalhaven City Council In Fitch v Shoalhaven City Council (1987) 67 LGRA 165 (Fitch), Stein J in the NSWLEC heard a question of law referred during the course of a merit appeal on a DA for a subdivision at Ulladulla. The question of law related to whether s 94 is the exclusive source of power for a consent authority to impose a condition of consent requiring the dedication of land free of cost or whether it could impose such a condition under what was then s 91 (and now s 80A) of the EPA Act independent of s 94. In this case, the development site included land zoned medium density residential and land zoned open space. The subdivision in the DA divided the land on the zone boundary and the Council sought dedication free of cost of the land zoned open space. Cripps J concluded that s 94 is the exclusive source of power for contributions or dedications for public amenities. He held at p 170: “In Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 Cripps J referred to but did not decide the question of whether s 94 is the exclusive code for the imposition of monetary contributions. I think Bignold J’s interpretation in St George and Henbury is the correct one and I adopt it. It is difficult to know why subs (3)(h) of s 91 is present if it was not the intention of the Parliament that dedication of land free of cost under the Environmental Planning and Assessment Act must satisfy the criteria set forth in s 94. Section 91(3)(h) does not merely permit the lawful imposition of a condition under s 94, it points to s 94 as the exclusive source of power for contributions or dedications for public amenities. It consciously provides for special (and additional) requirements for the validity of such conditions over and above those applicable to conditions under s 91 (other than, of course, subs (3)(h)). If a council could require (by condition) a dedication of land under s 91 as an alternative to s 94 it would lead to the special requirements of s 94 to be circumvented. Section 94 would tend to be avoided if a council felt it was unable to comply with it but

could satisfy the Newbury tests alone (under s 91).” (Note: the references to s 91 above refer to what is now known as s 80A.) Thus, Fitch establishes that the development contributions provisions of the EPA Act (including s 94) are the sole source of power for a consent authority to impose a condition on a development consent requiring the dedication of land or the payment of a monetary contribution, and that the general power to impose conditions under s 80A is not an alternative source of power.

¶59-110 Parramatta City Council v Peterson In Parramatta City Council v Peterson (1987) 61 LGRA 286 (Parramatta v Peterson), Stein J in the NSWLEC heard an appeal from a decision of an assessor regarding the validity of a condition of a development consent for the erection of a multi-storey commercial building in Parramatta which required a monetary contribution of just over $1.26m for car parking under s 94. Stein J found that the proposed development would generate a need for car parking west of the site. In considering what were the correct legal tests to apply to conditions imposed under s 94, Stein J referred to decisions such as Tandel, but noted that, given the legislative changes since the enactment of the EPA Act, pre-EPA Act cases should be approached with caution. Stein J noted that s 94 does not refer to the necessity for a nexus or connection between the public amenities to be provided and the subject development. Stein J then referred to the decision of Holland J in Greek Australian Finance v Sydney City Council (1974) 29 LGRA 130, and Stein J held at p 291–292 as follows: “In the Greek Finance case Holland J was dealing with the validity of a condition requiring a monetary contribution towards the provision of offstreet parking. The city council had a policy of constructing perimeter parking stations around the central business district. After examining the Else-Mitchell J cases referred to above and making reference to Allen v North Sydney Municipal Council, His

Honour said (at 140): ‘There can be no doubt that the purpose of the provisions of the legislation which prohibit particular kinds of development without the absolute or conditional consent of the responsible authority is only part of a larger purpose, namely, the orderly planning of the area subject to the controls as a whole. In relation to motor traffic, and, in particular to the parking of vehicles, and more especially in the city of Sydney, this can be properly done only by the adoption of a general policy for the whole of the city into which the piecemeal development of individual and scattered sites must be made to fit. The adoption by the council of the City of Sydney of a general policy such as is found in the City of Sydney Strategic Plan, the Development Control Floor Space Ratio Code and the Parking Policy and Parking Control Code, when adopted as a base for considering applications for the development of individual sites is, in my opinion, a logical and appropriate step as a guide to the proper exercise of the council’s powers as the responsible authority for giving development consent. These powers are conferred upon the council in the expectation of a continual process of new development and extension of the use of existing sites and buildings in the city area. Hand in hand with this expectation must flow an anticipation of increasing vehicular traffic and increasing need for provision to be made for the parking of vehicles generated by new development. It seems to me to be perfectly relevant to the purpose for which the powers in question were vested in the council, and certainly not unreasonable, for the council to have adopted, for the purpose of exercising its powers, a proposal to establish parking stations at strategic points throughout the city with a view to meeting part of the demand generated by future development and require new developers who did not propose to provide any parking facilities at their own expense to contribute an appropriate sum of money towards the provision of them by the council. Such a proposal is calculated to confer a general benefit on the sites owned by

all future prospective developers by tending thereby to reduce street parking in the city, improve the flow of traffic to and in the vicinity of their sites and relieve them wholly or partly from the necessity of using parts of their sites and buildings to accommodate parked vehicles. The establishment of the Capital Contribution Fund dedicated as it is to the establishment of such parking stations contemplates the building of such stations over a period of time in an endeavour to keep pace with the demand for parking facilities arising out of scattered individual new development throughout the city. Of necessity, the establishment of the fund contemplates the building of such parking stations over a substantial period of time on such sites as are presently available and as may become available from time to time in the future until the whole plan is achieved.’ [Emphasis added] On the basis of these considerations the city council contended that the development site was reasonably related to the imposition of a monetary contribution towards offstreet carparking notwithstanding that there was no proposal to build a parking station in the immediate vicinity of the site. However, Holland J felt constrained by the authorities of ElseMitchell J to reject the council’s submissions. Were it not for those cases he made it plain that he would have regarded the condition as within power. He said (at 141): ‘The view espoused by the plaintiff requires a piecemeal approach to the parking problems produced by new development which, in my opinion, could be inconsistent with and destructive of an efficient approach to planning control in respect of the parking of vehicles in this busy city. In my opinion, the council’s application of its policy to the present case is reasonably capable of being regarded as related to the purpose for which its power was being exercised.’ [Emphasis added]” Stein J then held at p 296:

“In my opinion neither s 94, nor the judicial gloss on it, requires proof of a direct connection between the development and the public amenity upon which the contribution is to be spent. In my view it is sufficient if the parking facility serves the Parramatta CBD as a whole. In this respect I embrace the approach of Holland J in the Greek Finance case as the correct one and indeed the only common sense and logical approach. To require a narrower and stricter approach will deny any public authority having regional or subregional centres within its boundaries the ability to effectively provide public amenities, the need for which may undoubtedly be generated by a development. In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity). I have to say that I find the reference to ‘direct connection’ in Building Owners and Managers Association of Australia Ltd v Sydney City Council difficult to understand. To my thinking it is not required by the authorities nor the section.” Further, Stein J held at p 293: “In my opinion ‘area’ in s. 94(1) means the local government area. The council is to consider whether the development ‘will or is likely to require the provision of or increase the demand for public amenities and public services’ within the council area.” Conclusions The following conclusions may be derived from Parramatta v Peterson: • Section 94 does not require proof of a direct connection between the development (the subject of the consent) and the public amenities or public services upon which the contribution is to be spent. Rather, it is sufficient if the public amenities or public

services serve the centre as a whole and form part of an integrated approach to an issue, which would confer a general benefit on all sites in the particular centre. • The reference to “area” in the requirement in s 94, that a development will, or is likely to, require the provision of, or increase in, demand for amenities or services within the area, is a reference to the LGA of the Council.

¶59-120 Toadolla Co Pty Ltd v Dumaresq Shire Council In Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261 (Toadolla), Pearlman CJ in the NSWLEC heard a challenge to the validity of conditions imposed by the Council under s 94 requiring monetary contributions for road upgrading, the provision of open space and fire suppression equipment for a subdivision of rural land at Armidale. The applicant did not lodge a merit appeal on the Council determination of the DA. Rather, it implemented the consent, paid the contributions and then challenged the validity of the condition. An issue in the proceedings related to what connection or nexus is required between the development proposed and the increase in demand for public services and amenities, and between the development proposed and the amenities or services provided to meet the increased demand. Pearlman CJ held from p 265 as follows: “Section 94 does not require a direct connection between the development and the public amenity upon which the contribution is to be spent, nor does it require geographical proximity: see Parramatta City Council v Peterson (at 296) and the useful review of the authorities there provided by Stein J. It does, however, require that the condition must ‘fairly and reasonably relate to the subject development’: see the Boma case (at 68), noted with approval in Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 at 213 and the comment thereon by Cripps J in North Shore Gas Co v North Sydney Municipal Council (Land and Environment Court of New South Wales, 27 June 1991, unreported at 47–48).

I cannot see, however, any relevant relationship between the development the subject of this case, and the contribution for road upgrading or for open space. Whilst it may be fairly said that a subdivision of one lot into seventeen lots ipso facto creates an increased demand for road upgrading and open space, it cannot be said in this case that there is any connection between the subject development and the amenity to be provided to satisfy that demand. It is not enough to say, as Mr McDougall QC for the Council urged me to do, that the implementation of a shire-wide policy does not necessarily lead to the inference that the money contributed will be spent anywhere in the shire. It may well be spent, he said, on roads or open space in the vicinity of and immediately benefiting the subject development. But Council cannot, in my opinion, by its later actions render valid what was not valid at the time of imposition of the condition. The time to determine the relevant nexus is at the time the condition is imposed; it is then that there must be a nexus between the subject development and the public amenity. At that time, as the evidence which I have outlined shows, there was no such nexus for either road upgrading or provision for open space. Both were imposed on a shire-wide basis. They referred to local roads and recreational facilities in wide general terms. There was no apparent assessment of the relationship between the subject development and the conditions as imposed. In those circumstances, the conditions set out in pars (c) and (d) of the consent were invalid. I do not take the same view in relation to the contribution for fire fighting equipment. Although the amount was calculated by applying a shire-wide figure, it was, in terms, imposed in order to provide an amenity for the development in question. It was for ‘the residents of the area’ and I can infer, I think, that the contribution of $8,500 was a contribution intended for the benefit of the residents of the subject development. Condition (m) is therefore valid.” Conclusions

The following conclusions may be derived from Toadolla: • Section 94 does not require a direct connection between the proposed development and the public services and amenities upon which the contribution is to be spent. It does not require geographical proximity. • Section 94 does, however, require that the contribution must fairly and reasonably relate to the proposed development. • There needs to be a connection between the proposed development and the amenity to be provided to satisfy the increased demand. • The date on which the connection is to be established is the date when the condition is imposed, not at some later date. Further, in Toadolla, the Council argued that because the applicant had not sought a merit appeal on the contributions in dispute, it was precluded from taking Class 4 civil enforcement proceedings. Pearlman CJ rejected this argument. However, despite finding the conditions requiring contributions for roads and open space were invalid, Pearlman CJ exercised her discretion to make no orders and dismissed the application on the basis that the applicant had accepted the benefits of the development consent and accepted the conditions without protest.

¶59-130 Allsands Pty Ltd v Shoalhaven City Council In Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435 (Allsands), the NSW Court of Appeal heard an appeal in relation to development contributions required under s 94 which related to a development consent for a residential subdivision near Nowra. The development consent required s 94 contributions for sewerage headworks and water headworks, to be indexed according to movements in the Consumer Price Index. The focus in the case was on the provisions of what is now s 94(3) (at the time of the case it was s 94(2A), without the current power to index

the amounts in accordance with the EPA Regulation) to enable development contributions to be levied to recoup costs of providing public amenities or services. Priestley JA (with whom Mahoney JA and Meagher JA agreed) held at p 440: “Subsections (2A), (2B), (2C) and (3A) were inserted in the section by the Environmental Planning and Assessment (Amendment) Act 1985 (NSW), s 5 and Schedule 4, cl (1). Plainly enough, the new subsections were inserted to enable a consent authority as a condition of consent to development in a particular area to require the developer to pay a monetary contribution towards costs already incurred in the development of that area, from which the new development would have some of the benefits; plainly enough also, the result of the insertion of the new subsections was to make it clear that the consent authority had full power by the combined authority of the subsections already in s 94 and the new subsections to require payment of monetary contributions in regard both to future development of the area and existing development from which the developer would benefit either in the future or immediately. Amongst matters not spelt out by s 94 as it stood after the 1985 amendments was how the term ‘recoupment of the cost’ was to be turned into cash figures in particular cases.” In calculating the amount payable for the recoupment of costs, the Council used the following formula: Developer Contribution = Portion of asset value of each component serving the development plus share of capacity for future of all components minus a share of debt. Priestley JA considered the meaning of “cost” in what is now s 94(3) in the context of the capacity to require contributions towards the recoupment of costs and held at p 445–446: “On turning to consider the meaning of the word ‘cost’ in the phrase ‘recoupment of the cost’ it seems to me reasonably clear that the word must be referring to actual cost …

[p 446] … In my opinion, the proper conclusion is that the first element in the exhibit 22 formula imports into the calculation of the contribution a method of estimating cost which is not justified by the statutory provision. It is not lawful therefore to impose conditions under s 94 requiring contributions calculated in accordance with the formula. The words of s 94(2A) do not justify estimating ‘cost’ either by taking present day cost and discounting it, or by applying an index to historical cost. The first method might yield a result approximating historical cost. On the other hand, it might not, which is what, in my opinion, prevents it being supportable by the words of s 94(2A). The second method in its own terms produces a figure different from historical cost. But it is historical cost, that is, what the Council actually paid out, that the subsection is in my opinion referring to. Any estimating must be done with a view to arriving at that ‘cost’, and it is towards that cost that payment of a monetary contribution may be required as a condition of consent.” Additionally, Priestley JA considered whether the cost of public amenities and public services should exclude subsidies provided by external parties to the consent authority and held at p 446: “Contribution towards recoupment of cost seems to me to be directed towards cost actually borne by the Council. Section 94 entitles the Council as the provider of the amenity or service to impose conditions requiring contributions towards recoupment of the cost. In cases where, by arrangement with the government, the Council was never liable to anyone for payment of part of the cost of a work, the power to impose a condition requiring contribution towards recoupment of cost cannot be referable to a cost not incurred by Council.” In relation to whether contributions could be imposed to recoup ongoing maintenance costs of a physical asset already provided, Priestley JA held at p 447:

“This question seems to me to be one of some difficulty. The relevant words in s 94 could, with some plausibility, be read in either sense. However, it seems to me that the words of s 94(2A) (a) tend more towards the meaning that the cost towards the recoupment of which conditions may be imposed is the cost to the Council of having put in place public amenities or services in preparation for or to facilitate the carrying out of development in the area, rather than the meaning which would justify the inclusion of this factor in the formula. That is, those words seem to me to convey the meaning that the cost referred to is a once for all cost. The same sense seems to me to be conveyed (although by no means conclusively) by s 94(3A). Such a once for all cost as I think is indicated by a reading of s 94 as a whole would in my opinion include interest payments on moneys borrowed to meet that once for all cost, but not in my opinion the cost of maintaining the physical asset after it has been provided.” Following the Allsands decision, the NSW Parliament in the Local Government (Consequential Provisions) Act 1993 No 32 (NSW) amended s 94 to provide that s 94 does not apply to water supply or sewerage works. However, to the extent that s 94 contributions are levied to recoup costs for public amenities and services other than for water and sewerage, the conclusions in Allsands remain applicable, save that under the current provisions of s 94(3) the actual cost of assets may be indexed as provided in the regulations and cl 25I of the EPA Regulation in accordance with movements in the Consumer Price Index. Conclusions The following conclusions may be derived from Allsands: • Where a development contribution is required as a condition of consent towards recoupment of the cost of providing a public amenity or service, the cost is the actual historical cost. That cost can be indexed in accordance with the EPA Regulation. • In calculating the cost of a public amenity or service for the purposes of s 94(3), any subsidies provided by external parties

should be excluded. • In calculating the cost of a public amenity or service for the purposes of s 94(3), interest payments on moneys borrowed to meet that cost can be included, but the cost of maintaining the physical asset after it has been provided cannot be included.

¶59-140 Stockland (Constructors) Pty Ltd v Shellharbour Council In relation to what constitutes “public amenities and public services”, in Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123 (Stockland v Shellharbour), Stein J in the NSWLEC held: “On behalf of the Council, Mr McEwen submits that there is no need for the Council to demonstrate a direct ability of the public to use a service or amenity. Just as the public may be excluded from a works depot, so they will be from a council plant nursery, a sportsground store, parts of a library, child care centre or waste treatment plant etc. Mr McEwen says that a building or facility can provide a public amenity or public service without the public having access to the facility or building as of right. I accept this submission. It accords with common sense. What is however important is the public benefit provided by or from the facility, not necessarily its physical accessibility to the public. As Mr McEwen observes, neither phrase ‘public amenities’ or ‘public services’ is defined in the Act. The only reference to actual amenities or services is in s94(9) viz. water supply or sewerage works. Should the phrase public services or amenities be construed in a broad or narrow fashion? It is reasonable to note that the services and amenities provided by local government over the last 100 years have changed dramatically, mirroring the changes in society and its growing complexity. What may not have been regarded as a public service or amenity 20 years ago may today be readily accepted as such eg. a child care centre.

… Many of the commonly accepted examples of public amenities and services under s94 include a capital cost component to fund the building of a facility from which the public service or amenity will be provided. In my opinion, so long as a facility is operated or used for the benefit of the public, it provides a public service or public amenity. It seems to me to be illogical to exclude facilities which may enable the provision of a public amenity or public service merely because they emanate from council administrative offices or a technical works depot. Taking the applicant’s argument to its logical conclusion would mean that part of, say, a child care centre or library which housed administration, would not qualify under s94 as a public service or amenity but the balance of the facility would. This highlights the illogicality of applying a narrow construction to the phrase. … A broad construction of the phrase ‘public amenities and public services’ should not be a matter of concern because of the extensive accountability provisions built into the Act. For example, a development needs to be likely to result in an increase in the demand for public services or amenities (s94(1)) to qualify for a contribution. The contribution, of course, has to be a reasonable one for the provision, extension or augmentation of the public services or amenities (s94(2)). A contribution must also satisfy the Newbury tests of validity: • be for a planning purpose • fairly and reasonably relate to the development (the nexus test) • be reasonable.” This decision was referred to with approval by the NSW Court of Appeal in Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 (Hammersmith) at paragraphs [56]–[62].

Conclusions The following conclusions may be derived from Stockland v Shellharbour: • What constitutes public amenities and public services under s 94 should be broadly construed as the requirements in s 94 requiring that a development will, or is likely to, require the provision of, or increase the demand for, the public amenities and public services in question, plus the Newbury tests, provide for adequate accountability. • What constitutes public amenities and public services changes over time, depending on changes in society. However, the amenity or service needs to provide a public benefit, although physical accessibility by the public to the amenity or service is not necessary.

¶59-150 Russo v Burwood Municipal Council In Russo v Burwood Municipal Council [1996] NSWCA 459 (Russo v Burwood), the NSW Court of Appeal heard an appeal relating to the validity of conditions imposed by the Council on a consent for monetary contributions for car parking, community facilities and traffic facilities and for the dedication of land for rear lane widening purposes. This appeal was heard after the 1991 Amendments had been introduced which required the preparation of a Contributions Plan and provided that contributions could only be imposed if they were in accordance with the Contributions Plan. These amendments only applied to DAs made on or after 1 July 1993. In this case, the subject DA was lodged before that date. Beazley JA (with whom Priestley JA and Sheller JA agreed) held that the Newbury tests applied to s 94. She held that Peterson was correct in deciding the reference to “area” in s 94 is to the LGA. Further, she held the contributions sought complied with the three tests in Newbury. In relation to the nexus or connection between the development (the subject of the consent) and the increase in demand for services and amenities and the services and amenities to be provided, Beazley JA

(in effect) held that compliance with the second test in Newbury, namely that the connection fairly and reasonably related to the development, also satisfied the nexus requirement.

¶59-160 Fairfield City Council v N & S Olivieri Pty Ltd In Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 (Fairfield v Olivieri), the NSW Court of Appeal heard an appeal relating to the validity of conditions imposed on a development consent for the erection of a factory at Wetherill Park. These conditions required the applicant to construct an extension to the Canley Vale Road for the frontage of the development site on land to be acquired by the Council (with compensation payable). In the proceedings, the developer argued that the conditions were invalid because s 94 was the exclusive source of power to impose such a condition, there was no relevant Contributions Plan which authorised the condition, and the roadworks were a public amenity. Cripps AJA (with whom Spigelman CJ and Santow JA agreed) held at paragraphs [73] and [76]–[79] as follows: “73 In Fitch v Shoalhaven City Council (1977) 67 LGRA 165 Stein J (as he then was) held that s 94 was the exclusive source of power under the Environmental Planning and Assessment Act 1979 for a council to impose as a condition of development consent a requirement that land be dedicated free of cost (or require a monetary contribution) and that a condition purporting to require dedication free of cost (or a monetary contribution) independently of s94 was not authorised in law. In my respectful opinion Stein J’s conclusion was correct. … 76 I do not read the decision of Stein J denying a Council the power to impose as a condition of consent that a developer undertake work off site at its own expense for the reason that the work might or would benefit the public. 77 In my opinion s94 only restrains the power of councils to impose conditions requiring the dedication of land free of cost or a

monetary contribution. In my opinion it has no application to a condition requiring a developer to undertake work at its own expense (although, of course, such a condition to be attached would have to be relevantly connected to the development and not unreasonable in the relevant sense). 78 In the present case I am prepared to assume that although the Council expressed no opinion about the matter it nonetheless held the view that the carriageway it required Olivieri to construct would, in due course, be used by members of the public and be of benefit to those users. 79 The learned trial judge gave no reason why ss91(3)(a) or 91(3) (f) were not, in the circumstance of the case, sources of power entitling the Council to impose condition 14. It appears to have been assumed by His Honour that if it be established that compliance with a condition imposed by Council would have the consequence that the public would benefit from it then such a condition cannot be imposed otherwise than pursuant to s94. But that, in my opinion, that is not what the legislation says. The limitations on council’s power to impose conditions relevantly connected to the development and reasonable in all the circumstance is limited by operation of s94 to those conditions where the Council requires as a condition of consent dedication of land free of cost or a monetary contribution or both.” Spigelman CJ, in additional observations, held at paragraphs [22]–[27] as follows (noting that the references to s 91 relate to the pre-1997 EPA Act and should now be read as s 80A): “22 The qualifications and restrictions found in s94, notably the ‘reasonableness’ restriction in s94(2) and the public requirements for the promulgation of a contributions plan, do lead to the conclusion that s94 is the exclusive power for conditions of the character specifically identified in s94 i.e. dedication of land or monetary contributions. To go beyond these express conditions and extend the exclusive nature of the power to conditions which may, in some way, be the commercial equivalent of a dedication of land, or the payment of a contribution, in my opinion, goes too

far. 23 Section 91(3)(f), in terms, permits a condition for the ‘carrying out of works’. The works must be related to matters referred to in s90(1). Although s90 contained a wide range of relevant considerations, this restriction, as Cripps AJA points out, is a significant restriction. No doubt, if a particular work, required to be carried out pursuant to such a condition, can be characterised primarily as the provision of a public amenity, then its connection with the development may not be regarded to be sufficiently close. However, that arises by reason of the proper construction of s91(3)(f), not by reason of the exclusion from the scope of s91(3)(f) of conditions falling within, or capable of falling within, s94. 24 There is, in my opinion, no warrant for reading down the reference to ‘works’ in s91(3)(f) by giving the exclusive operation of s94 extended scope. Section 91(3)(a) and (f) relevantly provide: ‘A condition may be imposed for the purposes of subsection (1) if it: (a) relates to any matter referred to in section 90(1) of relevance for the development the subject of the consent, … (f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90(1) applicable to the development the subject of the consent.’ 25 A condition requiring works to be done would probably have fallen within the general scope of s91(3)(a). However, the Parliament went on to put the issue beyond doubt by conferring an explicit power, in much the same terms as that paragraph in s91(3)(f), extending to the provision of works. Where the Parliament has been as specific as this, this Court should be slow

to read down the general words used by a process of implication. 26 An obligation to carry out works will, no doubt, usually be commercially equivalent to a ‘monetary contribution’ which enables a council to carry out the works itself. These may be circumstances where, as a matter of statutory construction, the court will conclude that what cannot be done directly, cannot be done indirectly. (See e.g. F. Bennion Statutory Interpretation (4th ed) Butterworths, London 2002 pp 879–880). However, that must turn on the statute. As shown by the overlap between pars 91(3) (a) and (f), s91(3) does not contain mutually exclusive categories. The express reference to s94, in par 91(3)(h) does not give rise to any implication that the general works in s91(3)(f) should be read down by reason of s94 as picked up in s91(3)(h). Each can be given full scope in accordance with their terms. 27 The general provisions of s90(1), as they then existed, and to which a condition for the carrying out of works under s91(3)(f) may attach are, in the words I have previously quoted from Nintendo above, ‘concerned with the adjustment of the competing rights, claims or obligations of persons in a particular relationship or area of activity’. A valid condition with respect to s90(1) considerations is, accordingly, unlikely to be characterised as a condition for the dedication of land free of cost or the payment of a monetary contribution ‘for the provision, extension or augmentation of … public amenities and public services’ referred to in s94(2)(b). The conditions imposed here cannot, in my opinion, be so characterised.” Similarly, Santow JA held at paragraph [46]: “46 I am of the view that the proper construction of ss91 and 94 is as set out by Spigelman CJ and Cripps AJA namely that s94’s exclusive zone is strictly limited to a condition requiring either or both of a dedication of land free of cost and the payment of a monetary contribution. Neither apply here. The statue [sic. Should read “statute”] does not embody any doctrine of economic equivalence, even if it could be said that the carrying out of work were equivalent to the foregoing. I also agree that there is nothing

to preclude application of s91 of the Act as a sufficient basis for imposing the relevant conditions 13 and 14.” Conclusions The following conclusions may be derived from Fairfield v Olivieri: • Fitch was correctly decided in holding that s 94 is the exclusive source of power under the EPA Act for a consent authority to impose, as a condition of a development consent, a requirement that land be dedicated free of cost or requiring a monetary contribution. Any such condition purportedly imposed, other than under s 94, is invalid. • Despite the above, a consent authority is not precluded from imposing, as a condition of a development consent, a requirement that a developer undertakes work off-site at its own expense, even if that work might or would benefit the public. However, such a condition would need to be related to the development and not be unreasonable. Such a condition is expressly authorised by s 80A(1)(f) and that power should not be read down, even if its effect is to authorise something to be done indirectly which cannot be done directly, and has the same commercial effect.

¶59-170 Rose Consulting Group v Baulkham Hills Shire Council In Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 (Rose Consulting v Baulkham Hills), the NSW Court of Appeal heard a challenge to conditions of development consents imposed by the Council in relation to DAs for subdivision for part of the Kellyville/Rouse Hill urban release areas (located at Kellyville) imposing contributions for open space, roadworks, community facilities and studies and administration. The Council had a Contributions Plan applying to the area and, in December 1999, made new Contributions Plans for the area, significantly increasing the contribution levels. The development consents were granted in 2000 after the new Contributions Plans were made. The developer argued that the contributions imposed by the Council were not reasonable, as

was required by s 94(2), and that the Court, on appeal, may disallow or amend a contributions condition if it was unreasonable in the circumstances of the particular case (provided for now in s 94B(3)). The Council argued that the Court’s power to disallow or amend a contributions condition cannot override a condition permitted by a Contributions Plan because the consent authority, being the Council, cannot impose a contributions condition unless it is allowed by and determined in accordance with a Contributions Plan (provided for now in s 94B(1)). Santow JA (with whom Meagher JA and Young CJ in Eq agreed) held at paragraphs [35]–[37], [42] and [46]–[49] (noting that the references to s 94(11) and (12) refer to the EPA Act provisions prior to the 2005 Amendments and hence, should now read as s 94B(1) and (3)): “35 I prefer the interpretation that the court on an appeal has a broader discretion than that of Council in amending an unreasonable condition so no longer unreasonable, even if no longer permitted or mandated by the contributions plan. Consistent with the plain words of subss94(12), reference to ‘even if it was determined in accordance with the plan’ contemplates that the result of amending a condition on appeal may well produce an outcome different from the condition mandated or permitted by the plan. It must be assumed that this phrase was inserted deliberately. I should add that such an interpretation is, as the appellant contends, wholly consistent with Talbot J’s earlier impeccable reasoning in Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262. At 276 he says: ‘the amount of s94 contributions, except for open space land, have been allowed otherwise than in accordance with the formulae in Contributions Plan 8A … the claim by the council has been allowed or amended by the court because it is unreasonable, notwithstanding that it was determined in accordance with the plan …’. At 276 he adds, ‘apart from the discretion whether or not to impose a condition, the council has no discretion under s94(7). The contributions must be determined in accordance with the contributions plan. On appeal to this court, a condition may be disallowed or amended because it is unreasonable even if it was determined in accordance with the plan’.

36 I agree with the appellant’s submission that the reasoning of Talbot J in Trehy & Ingold v Gosford City Council (supra) could not be reconciled with the reasons given for the instant decision. The contortions required to attempt to reconcile the two decisions simply point to the fundamental difficulty of, on the one hand, accepting that the statute still requires that conditions be tested for reasonableness, but on the other, precluding that testing for those ‘generic’ conditions mandated or permitted by the contributions plan, even though they produce an unreasonable result by reason of the formulae or input variables of the plan. 37 It does not follow that where a contributions plan mandates an unreasonable result in terms of conditions, the effect of a court amending or disallowing a condition is to amend the contributions plan itself. That is not the result at all. What it does mean is that until the contributions plan is amended, anyone who challenges such a condition is likely to succeed. It is of course open to a council to avoid that result by adopting a new and sensible contributions plan provided it follows the mandated process including public participation; see Pearlman J in Stockland (Constructors) Pty Limited v Baulkham Hills Shire Council [1996] NSWLEC 185. … 42 I conclude that subss94(11) and (12) are cumulative in their operation so far as the council is concerned. Their combined effect is: (a) to compel the council, if it is to impose a condition for contribution, to do so pursuant to a contributions plan, yet (b) still rendering such a condition, though in accordance with such a plan, subject to disallowance or amendment by the court, where shown to be unreasonable even if the resultant amended condition would no longer be in conformity with the contributions plan. …

46 Finally, as regards whether s94(12) requires unreasonableness to a Wednesbury7 standard, I agree with the decision of Talbot J and the written submissions of the appellant. These I quote below: ‘26. The Respondent seeks to import into s94(12) the ‘third limb’ of the validity test set down in Newbury District Council v Secretary of State for the Environment [1981] AC 578. This submission should be rejected. 27. The Respondent submits that the ‘Wednesbury unreasonableness test had been applied in respect of s94 in Parramatta City Council v Peterson’ (1987) 61 LGRA 286. However, nothing in Peterson could be remotely determinative as to the proper construction of s94(12). That case preceded the amendments made by the Environmental Planning and Assessment (Contributions Plans) Amendment Act 1991 No. 64, which inserted s94(8) (the precursor to s94(12)). Accordingly, at the time Peterson was decided there was no power akin to s94(12) in the Act. The proceedings in that case were instead framed as a challenge to the validity of the relevant conditions. Decisions since the insertion of s94(8) disclose no hint that ‘Wednesbury’ unreasonableness is the appropriate criterion under s94(8)/94(12). Frevcourt Pty Ltd v Wingecarribee Shire Council [1993] NSWLEC 65; (1992) 80 LGERA 75 [sic. Should read ‘‘(1993) 80 LGERA 75’’] at 79; Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262 at 272–273; Security Storage v Leichhardt Municipal Council (1996) 93 LGERA 176 at 185–187; GHD Pty Limited v Pristine Waters Council [2001] NSWLEC 186 at paragraph 13. 28. Although the Court on a s97 appeal additionally has the same functions as a council — s94(12) ‘allows a wider discretion’. Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262 at 275–276. That proposition comports with the ordinary meaning conveyed by the text of the provision. It is a meaning which should be given effect to. Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981]

HCA 26; (1981) 147 CLR 297 at 304–305; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421. The Respondent’s preferred construction is tantamount to reading words into the provision which are simply not present and for which there is no clear necessity. Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201 at 251; Ivanhoe Coal Pty Ltd v TransGrid (2000) 107 LGERA 53 at 56; Vamanda Pty Ltd v Townsville City Council Murrayfield Pty Ltd v Townsville City Council (1983) 51 LGRA 20 at 24; Dorney v Commissioner of Taxation [1980] 1 NSWLR 404 at 420. 29. Even if the word ‘unreasonable’ was capable of being regarded as ambiguous, any ambiguity should be resolved in favour of a liberal approach to the Court’s power under s94(12). Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543–544.’ … Overall Conclusion 47 While the court is not a ‘consent authority’ for the purposes of the Act, its powers and the deemed consequences of their exercise give the decision of the court the effect that it would have had were it made by a consent authority. This is with the additional scope conferred by s94(12) to disallow or amend unreasonable conditions, though they be determined in accordance with a contributions plan. There is no basis in policy or in the words of statute for compelling developers to make contributions pursuant to unreasonable conditions merely because mandated or permitted by a contributions plan. Nor is there any basis in thereby leaving developers to the dubious prospects of later restitution; that is allowing a remedy only after it can be shown that the contribution in reality exceeded what the council actually spent and needed to spend on amenities as a result of the development. 48 Contributions plans are not in that regard to be elevated to some form of delegated legislation. They do not thereby render

immune a condition mandated or authorised by the contributions plan when such condition, objectively considered, is shown to be unreasonable. 49 The scope of review is not to a Wednesbury standard but simply requires reasonableness to be tested according to its ordinary connotation.” Conclusions The following conclusions may be derived from Rose Consulting v Baulkham Hills: • In determining an appeal, the NSWLEC has the same powers as the consent authority. In addition, the Court has an extra power under s 94B(3) to disallow or amend a condition of a consent imposing development contributions, even if that condition was imposed in accordance with a Contributions Plan, and even if the condition (as amended by the Court) is no longer in conformity with the Contributions Plan. • Contributions Plans are not a form of delegated legislation preventing the Court from disallowing or amending a contributions condition of a consent that was imposed in accordance with a Contributions Plan. In making a decision under s 94B(3) to disallow or amend a contributions condition, the Court is not amending the Contributions Plan itself, but is providing a signal that until the Contributions Plan is amended, any challenge to a similar condition is likely to succeed. • The test under s 94B(3) empowering the Court to disallow or amend a contributions condition if it is unreasonable in the circumstances of the case is not one of unreasonableness to a Wednesbury standard, but of reasonableness to its ordinary meaning. Footnotes 7

CCH comment: This refers to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

¶59-180 Lake Macquarie City Council v Hammersmith Management Pty Ltd In Hammersmith (a case discussed previously in Chapter ¶58 in relation to conditions generally of a development consent), the NSW Court of Appeal heard an appeal regarding the validity of a condition in a development consent for urban subdivision requiring the payment of a mandatory contribution under s 94 for the acquisition of a conservation corridor. Tobias JA (with whom Mason P and Young CJ in Eq agreed) held that in applying s 94 there were two questions requiring answers: (1) whether the particular development will, or is likely to, require the provision of the public amenity or service in question, or (2) whether the particular development will, or is likely to, increase the demand for the public amenity or service in question (paragraph [26]ff). Further, the Court held that a condition can only be validly imposed under s 94 if: • one or the other of the two limbs of the test in s 94 referred to above had been met, and • the condition satisfied the three tests under Newbury (paragraph [52]). The Court held that s 94 is not satisfied merely because the occupants of the proposed development may conveniently make use of or benefit from the conservation corridor (paragraph [60]), although such a conclusion could validly be included in a conservation plan. But it then requires a finding of fact as to whether a particular DA will, or is likely to, require the provision of or increase the demand for the conservation corridor.

¶59-190 Baulkham Hills Shire Council v Group Development Services Pty Ltd In Baulkham Hills Shire Council v Group Development Services Pty Ltd [2005] NSWCA 315 (Baulkham Hills v Group Development Services), the NSW Court of Appeal (Handley JA, Ipp JA and Tobias JA) considered the question of adjustments to contribution rates set in a Contributions Plan and held: • Clause 27(1)(e) of the EPA Regulation requires that a Contributions Plan include “the contribution rates for different types of development, as specified in the schedule to the plan”. Such a requirement precludes the plan providing for contribution rates to be reviewed and updated without making a new plan. The EPA Regulation requires that a contribution rate be set and it does not authorise a rate which changes from time to time or which is continually updated. • Clause 32(3)(b) of the EPA Regulation permits adjustment of contribution rates in a Contributions Plan by “readily accessible index figures adopted by the plan”. Handley JA (with whom Ipp JA and Tobias JA agreed) held at paragraph [23]: “23 In my judgment cl 32(3)(b) did not authorise the council to create a new index, but only authorised the adoption of an index already in existence which would provide figures that were readily accessible. The need for the Council to ‘adopt’ an index required it to adopt an existing one which would ordinarily, if not invariably, be one maintained by an independent third party. The example provided ‘such as a Consumer Price Index’ was such an index, already in existence, maintained by an independent third party, which would indeed provide ‘readily accessible index figures’ from the very start of the plan.” Thus, an adjustment to contribution rates by a readily accessible index refers to a document that is publicly available and recognised as based on existing market information and not a document generated

by the Council for the purpose of changing its contributions. Further, the NSW Court of Appeal agreed that s 94 contributions were not a tax and hence, subject to the principles which govern the construction of taxation laws. Handley JA (with whom Ipp JA and Tobias JA agreed) held at paragraphs [15]–[16]: “15 During the argument the Court asked Mr Preston whether contribution condition amounts were a tax and referred to the definition of a tax given by Latham CJ in Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263, 276: ‘… a compulsory exaction of money by a public authority for public purposes, enforceable by law, and … not a payment for services rendered.’ 16 Mr Preston submitted that these amounts were not a tax and referred the Court to a number of decisions, the most relevant being that of Cowdroy J in Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363, 377–9 where the authorities are collected. This decision establishes that these amounts are not taxes, and that the principles which govern the construction of taxation legislation do not apply.” The Meriton Apartments v Minister case was discussed in relation to the scope and period of an EPI earlier (see Chapter ¶3). However, Baulkham Hills v Group Development Services endorses the conclusion that s 94 contributions are not a tax.

¶59-200 Arkibuilt Pty Ltd v Ku-ring-gai Council — Court empowered to amend a condition of a development consent requiring a s 94 contribution In Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502, Jagot J in the NSWLEC held that the Court is empowered to amend a condition of a development consent requiring a s 94 contribution where that amendment is sought under the modification provisions of s 96 rather than a new DA.

¶59-210 Broker Pty Ltd v Shoalhaven City Council In Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311 (Broker v Shoalhaven), the NSW Court of Appeal heard an application seeking a declaration that certain parts of a Contributions Plan were invalid. The developer was granted a number of development consents in 2004 for residential subdivision near Milton. As part of the development consents, the Council imposed requirements for s 94 contributions which were paid and were not in dispute. Subsequently, in 2006, the Council amended its Contributions Plan to identify some new additional roadworks over and above those identified in the Contributions Plan as it existed at the time of the 2004 consents. These new contributions were payable either on issue of a linen plan for subdivisions, or issue of a construction certificate or a complying development certificate. It was indicated that many of the dwellings likely to be erected on the subdivisions would be complying developments. Campbell JA (with whom Handley AJA agreed) held that additional s 94 contributions may be imposed when subsequent DAs were approved for dwellings on the subdivision. He held at paragraphs [49]–[50] and [54]–[55]: “49 The trigger for the operation of section 94 is that there is ‘development’, for which ‘development consent’ is sought from a consent authority. In accordance with the extended definition of ‘development’ in section 4, there is ‘development’ when the subdivision of land occurs, but there is also ‘development’ when the erection of a building occurs. 50 If an application for subdivision of land is made to a council, and the council is satisfied that that subdivision ‘will or is likely to require the provision of or increase the demand for public amenities and public services within the area’, the council’s power to grant the development consent subject to a condition for payment of money under section 94 is triggered. In making the judgment whether the subdivision ‘will or is likely to require the provision of or increase the demand for public amenities and public services within the area’, the council is not restricted to

considering only those consequences which must inevitably flow from, or are legal consequences of the granting of, the subdivision approval. As well, the council can consider the practical consequences that are likely to follow from the granting of the consent. If the council is satisfied that a subdivision consent, once granted, is likely to be acted upon, and to instigate a process whereby people come to occupy the separate lots that arise from the subdivision, the council might, in the circumstances of the particular case, be satisfied that the subdivision will, or is likely, to require the provision of or increase the demand for public amenities and public services within the area. … 54 In accordance with this provision, the fact that the council has made a prediction, for the purpose of section 94, at the time when subdivision consent is sought concerning a particular parcel of land does not preclude it from making another prediction, for the purpose of section 94, at a later time when some other development, for which development consent is sought, is to occur concerning the same land. 55 In the situation involved in the present case, at the time of granting the subdivision approval the Council was evidently satisfied that the subdivision would or was likely to require the provision of, or increase the demand for, public amenities and public services within the area, concerning the particular Council projects that were identified in the condition of subdivision approval that levied the section 94 charge. It was able to come to that view by comparing what public amenities and public services would, or were likely to be provided, or be ones for which a demand would exist, if the subdivision approval was granted, and those that would or were likely to be required, or for which a demand would exist, if the subdivision approval were not granted.” Campbell JA also considered whether s 94 contributions could be imposed on the issue of a complying development certificate, including one issued by an accredited certifier. He held (at paragraph

[73]) that a Contributions Plan under s 94EC(1) could validly require an accredited certifier to impose a condition on a complying development certificate requiring payment of s 94 contributions. Conclusions The following conclusions may be derived from Broker v Shoalhaven: • Where a project involves a number of sequential development consents (such as a subdivision consent for residential allotments followed by a development consent or complying development certificate for a dwelling), a council may impose a condition of consent requiring development contributions for later consents, even though such a condition was also imposed on earlier consents. This may arise where the applicable Contributions Plan has been altered between the date of the first consent and subsequent corridors to add additional public amenities and public services for which contributions may be imposed. • A Contributions Plan may require an accredited certifier to impose a condition on a complying development certificate requiring payment of s 94 contributions. The issue of the use of monetary contributions, validly imposed under s 94 to ensure they are used for the purposes for which they were levied, has proved a vexed question in trying to balance the interests of the applicant, whose development may benefit from the monetary contributions being expended for the requisite purpose (such as additional car parking), and the Council, which faces practical issues (such as the absence of sufficient contributions to initiate the expenditure of the contributions on the delivery of some amenity or service where a number of contributions are needed). Section 94, as originally enacted, required that the Council: • hold any monetary contribution in trust for the purpose for which it was levied, and • apply the money towards the public amenities or public services within a reasonable time.

¶59-220 Levadetes v Hawkesbury Shire Council In Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190 (Levadetes), Holland J in the NSWLEC heard proceedings where the applicant contended that a reasonable period had elapsed since monetary contributions had been made for car parking. The applicant sought orders that the Council was in breach of trust and that it should expend the moneys contributed on car parking within six months or, if it failed to do so, it should repay the applicant. Holland J held at p 195–197: “Section 94(3) is mandatory and imposes on the consent authority a duty under which there are four elements in the obligations to be performed. The first is to hold the money in trust for the purpose for which the payment was required. The second is to apply the money towards providing the relevant public amenities or services. The third is to do so within a reasonable time. The fourth is to apply the moneys in such a manner as will meet the increased demand for those amenities or services. … [p 196] … As to the lapse of time, the Council does not concede that a reasonable time has yet elapsed having regard to the difficulties inherent in having to expend the money within the narrow confines laid down by the terms of the condition and the pace at which it is possible to obtain decisive action from government departments having a multitude of public duties to perform. Its counsel submitted that, at worst, it might be said that the pace at which the Council had moved might be described as ‘stately’; but not so as to be called unreasonable in the circumstances. What is a ‘reasonable time’ for the purposes of s 94(3) will obviously vary enormously with the circumstances of each case; but, in my opinion, it has been well exceeded in the present. The action that has been taken by the Council would have been

‘stately’ if it had occupied a period of nine months, but it is now three years and nine months since the payment was made and there is yet nothing to show for it and no present prospects of action to achieve the purposes of the ‘trust’. … [p 197] It is my conclusion, in the particular circumstances of the present case, that the Council has failed to perform the duty imposed upon it in respect of this fund by s 94(3), in that it has failed to do what was required of it within a reasonable time. In reaching this conclusion I would emphasise that the facts of the trust that arose in respect of the contribution required for this particular development distinguish it from the general run of cases where a contribution for parking facilities provided or to be provided by councils is required as a condition of consent to development. Usually the Council has a general fund for the provision of parking at strategic places in its area from which developers of individual sites benefit by being relieved of the need to use part of their own sites to provide parking and the Council may reasonably expect to be free to apply contributions to the fund over a period of time in accordance with appropriate planning. In such case a reasonable time for applying the funds may be quite long and difficult to postulate. However, here the locality in question is very small and particular, the nature of the task to be performed very simple and uncomplicated and the range of possibilities to achieve the objects of the trust very limited. Consequently, a relatively short time for setting about and completing the task may fairly be regarded as reasonable. As I have said, I think the time that passed up to the commencement of the proceedings far exceeds what may fairly be regarded as reasonable in the present case.” Conclusions The following conclusions may be derived from Levadetes: • Section 94 imposes four obligations on the consent authority:

(1) to hold the money for the purpose for which the payment was required (2) to apply the money towards providing the relevant public amenities or services (3) to do so within a reasonable time, and (4) to apply the moneys in such a manner as will meet the increased demand for those amenities or services. • The question of “what is a reasonable period of time to apply s 94 contributions for the purposes for which they were imposed?” varies according to the circumstances of each case. A longer period is reasonable where the Council does have a general pool for a specific purpose, but where the locality is discrete, the task is simple and the possible choices are limited, a relatively short period is reasonable. • Where a reasonable period of time has elapsed, the relief granted by a Court is difficult and is directed to spurring the Council to expend the contributions for the purposes for which they were levied.

¶59-230 Idameneo (No 9) Pty Ltd v Great Lakes Shire Council Similar issues to those raised in Levadetes were raised in Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27 (Idameneo) before Cripps CJ in the NSWLEC. The applicant was required by a condition of a development consent to make a monetary contribution in lieu of off-street car parking. The money was paid in 1983 and, after six years of inaction, the applicant commenced proceedings. After the commencement of the proceedings, the Council then used the money to acquire land for car parking. Cripps CJ held that, even if the delay of the Council in expending the money was unreasonable, it had expended it and, as a result, the

proceedings should be dismissed. However, as there were issues of costs in the proceedings, Cripps CJ proceeded to determine the issues and held that the money was not spent within a reasonable time. Cripps CJ then considered what should have happened if the Council cannot, or will not, perform its statutory obligations. He held at p 32 as follows: “However, as I have said, the Council has now acted in accordance with its obligations. Therefore I am relieved of the obligation of determining what orders should be made had it not undertaken that activity. Section 94 is silent as to what consequences follow if the Council cannot or will not perform its statutory obligations. Section 124, however, provides that where the Court is satisfied that a breach of the Act has been committed or will occur the Court may make such orders as it thinks fit to remedy or restrain the breach. In F Hannon Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 6 LGRA 306, the Court of Appeal referred to the extremely wide charter given to the Court by s 124. The Chief Justice said (at 311) ‘that the words ‘such order as it thinks fit’ … empowers the Court to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it’. Because, as I have said, the Council has fulfilled its trust obligation with respect to $36,000 paid by Idameneo, I do not think this case is the appropriate occasion to explore all the options referred to in argument. I do not think it inappropriate, however, to observe that the Court is concerned with the administration of public law and the conditions attached to development consent run, as it were, with the land. A condition such as I am presently concerned with must be assumed to be in the public interest in the sense that it must be assumed to have been imposed for the benefit of relevant members of the public. That is, it must be assumed that the condition was imposed for a planning purpose and that it had a relevant connection with the development the subject of the consent. If the contribution is not being used for the purpose for which it was levied, ordinarily the appropriate order would be that the Council perform its obligation.

If the contribution cannot be so used, more difficult questions may arise. However, as I have said, this matter does not need to be explored further. The Council has discharged its statutory obligation.” Cripps CJ awarded costs to the applicant up until the date the Council expended the money. Conclusions The following conclusions may be derived from Idameneo: • Section 94 is silent as to the consequences which flow if a council has not complied with the requirement to expend a contribution for the requisite purpose within a reasonable time but, under s 124, the Court has wide powers to make such orders as it thinks fit. • Where there has been a breach of the requirement to spend s 94 contributions within a reasonable time, ordinarily, the appropriate order would be to require the Council to perform its obligation. If it cannot do so, more difficult questions may arise. As to relief, Holland J struggled and decided to adjourn the proceedings for further hearing in about three months, no doubt in the hope or expectation that the Council would initiate some action.

¶59-240 Denham Pty Ltd v Manly Council In Denham Pty Ltd v Manly Council (1995) 89 LGERA 108 (Denham v Manly), Talbot J in the NSWLEC heard an application seeking repayment of s 94 contributions relating to a hotel development project at Manly. The Council granted development consent, subject to a condition requiring s 94 contributions. These contributions were paid and the development commenced with the demolition of existing buildings, site excavation and the construction of a basement car park wall. Thereafter, construction was discontinued in 1990. Subsequently, the Council granted development consent in 1994 for a commercial/residential development on the site, subject to a condition

requiring s 94 contributions. The developer sought a refund for contributions paid under the earlier consent. Talbot J refused that request. Conclusions The following conclusions may be derived from Denham v Manly: • Where a s 94 contribution is imposed as a condition of a development consent and the money has been actually paid, if that money has been spent in accordance with s 94, that disposes of the matter. The consent authority is not required to hold back providing public amenities or services to ascertain if a developer proposes to act of a development consent. • If there is no prospect that a development (the subject of a development consent) which has physically commenced will proceed, there is an issue of whether the consent authority can meet the fourth obligation in Levadetes, namely, to apply the moneys in such a manner as will meet the need of the increased demand for public amenities or services. But, if the money contributed has been expended or (if part of a larger fund) it cannot be distinguished, then any claim for a refund must fail.

¶59-250 Frevcourt Pty Ltd v Wingecarribee Shire Council In Frevcourt, the NSW Court of Appeal heard an appeal relating to a claim for a refund or repayment of s 94 contributions in relation to subdivisions at East Bowral. The Court considered the extent of flexibility a council has in relation to the public amenities and services provided, both pre-1991 Amendments (requiring Contributions Plans) and after. It should be noted here that the provisions of the 1991 Amendments, requiring that only contributions be in accordance with a Contributions Plan, applied after 1 July 1993. They are referred to here as the 1991 Amendments, being the date of enactment in Parliament, although in Frevcourt, they are referred to as the 1993 Amendments, after their date of coming into operation. In relation to s 94 contributions levied before the 1991 Amendments, the Court noted that councils have a discretion in applying the contributions in a

workable and manageable manner (see paragraphs [51]–[57]). In relation to the position after the 1991 Amendments, Beazley JA (with whom Ipp JA and McColl JA agreed) held at paragraphs [87]–[91]: “87 … The overall thrust of the Contributions Plan scheme as Her Honour found, is therefore, that a council must expend s.94 contributions on the amenities for which the contributions were required. This is subject to any amendment of the Contributions Plan. 88 As has already been explained, the regulations permit for the amendment or repeal of a Plan. The appellants contend that if a Plan is amended or repealed, then s.94 contributions collected under a particular plan cannot be ‘carried across’ into any amended or substituted plan. They also contend that a Council must complete all the works specified in a Plan, except in the limited circumstances discussed above, and if a Council does not, it must refund any money left in the fund comprising the s.94 contributions. This raises the question of the extent of the right to amend a Contributions Plan. 89 There is no restriction in the Act or regulations as to the type or extent of amendments that may be made. Nor do the regulations specify whether a plan can be repealed in whole or part, and it is not necessary to determine that question. However, the status of any s.94 contributions in the case of a total repeal raises, perhaps more starkly, the question of a contributor’s right to a refund, a matter which is explored more fully below. However, for present purposes, it follows from the ability to repeal a Contributions Plan, either in whole or in part, that a Council is entitled not to proceed with work specified in a Plan. 90 Although there is no restriction as to the type or extent of an amendment, the regulations regulate how the amendment must be made or, if applicable, how the repeal is effected. In the case of an amendment, that must be by a new Contributions Plan. Given the absence of any restriction in the type or extent of amendments that may be made, I am of the opinion that a council can amend a plan so as to alter both the extent and type of public

amenity or service that is reasonably required by the development and apply existing s.94 funds to those amenities or services. 91 In my opinion, and it follows from what I have said, a council’s entitlement to amend a Contributions Plan encompasses a right to reduce the scope of works specified in a Contributions Plan, even if this means that some works stipulated in the original Contributions Plan are no longer to be carried out. I should add that as this case is concerned with a reduction in the scope of roadworks, and not with the substitution of different works, it is not necessary to reach a final conclusion on whether a Council can amend the type of amenity or service so as to substitute different work and use existing s.94 contributions for that different purpose. I would further add that if the right to amend did not encompass the ability to eliminate or abandon (or indeed to substitute different amenities), a Council arguably would be limited to being able to make minimal changes of the detail of the work originally proposed. Amendments of that type would, in my view, be variations of a type in respect of which a council has a continuing discretion in any event. In this regard, I agree with the trial judge (at [72]) that a limited discretion remains after the 1 July 1993 amendments.” In relation to whether a refund was available, Beazley JA (with whom Ipp JA and McColl JA agreed) held at paragraphs [97], [102]–[108], [111]–[113], [120], [122]–[123] and [127]: “97 There is no authority binding on this Court as to whether a person who makes a s.94 contribution as a condition of a development consent is entitled to a refund of those moneys. There are, however, a number of decisions in the Land and Environment Court where obiter remarks to that effect have been made … … 102 None of their Honours (other than Lloyd J with whose remarks I disagree), indicated the basis upon which they considered that a refund was available. Neither s.94 nor the regulations expressly provide for it. By the same token, the

legislation does not expressly prohibit a refund. In the absence of any express permission or prohibition, the question arises as to whether there is anything in the legislative scheme that makes a refund permissible, or alternatively, prohibits the making of a refund. 103 The following matters tend to a construction that there is no power to refund contributions. First, I have already expressed the view that the power to amend a Contributions Plan involves the ability to use funds (initially required for a particular amenity or service) for the amenity or service substituted, changed or varied in the amended Plan. In such a case there would be no right to a refund. 104 A Council is also entitled to repeal a Contributions Plan. It might be expected that the clearest case where there might (and ought to) be an entitlement to a refund is where a Plan is repealed after s.94 contributions have been received and no new Contributions Plan is made. However, in that case, as there is no breach of the Act there is no entitlement to relief under s.124, which is the jurisdictional basis upon which the appellants base their claim for a refund. Further, although s.94 contributions are held for a public purpose, in the case of a repeal of a Contributions Plan there is no longer any public purpose for which the funds are held. The authorities are clear that the statutory trust is not the same as, nor do persons have the rights that flow from moneys being impressed with, a private trust. The same is true of moneys held for a public purpose. There is no correlative private right. A contributor in such a case therefore has no rights of or equivalent to those of a beneficiary. It may be that a contributor would have a general law right to recover the s.94 contribution on a restitutionary basis, for example as money had and received. Such a right, however, is different in nature and concept to the relief that an individual may seek under s 124 of the EP&A Act. 105 The accounting regulations are also relevant. If there is more than one contributor to the fund for the provision of a particular amenity or service then all s.94 contributions made in respect of

that amenity or service, become part of a combined fund. It would seem unlikely that the legislature would have envisaged a right to a refund in circumstances where funds were to be mixed. Although a council is required to record the details of individual s.94 contributions and the particular public service or amenity to which it relates, its accounting obligation relates to the expenditure in respect of the amenity, not to an accounting in respect of the expenditure of the particular s.94 contribution. 106 If there was a right to a refund, the further question arises as to the basis upon which the right is to be determined. Is it to be based upon the principle that first payments in are to be taken as first payments out? Is it to be on a proportional basis? If so, is any account to be taken of accumulations of interest on the fund. In my opinion, the absence of any enabling provision dealing with these issues would tend to a conclusion that the legislature did not intend there to be an entitlement to a refund. 107 If there is no right to a refund, it may be that the only right, if there is a breach of the Act, is a right to compel a council to use the funds for the public purposes for which they were paid: see Levadetes. This would be a logical result flowing from the nature of such funds being held for a public purpose. I acknowledge, however, that that does not satisfactorily explain how a Council is to treat any surplus should that position ever eventuate. 108 Even if there is a right to a refund, there remains a question whether the appellants are entitled to a proportionate share of any surplus, in circumstances where the particular funds they ... … 111 Again, it is necessary to return to the legislation to ascertain the nature of any right that might be available. 112 Section 94(3) and the regulations govern how the moneys of an individual contributor are to be held and expended. A s.94 contribution is made because a council requires it as a condition of a particular development consent. A council must hold a s.94 contribution for the purpose for which it was required and apply it

towards providing the public amenities or public services specified in the Contributions Plan to which the contribution relates. 113 If an individual contributor’s funds have been expended, the council has fulfilled its statutory duty in respect of those funds. Once a contributor’s funds have been expended, and a council’s duty satisfied in respect of those specific finds, it is difficult to see any basis upon which that contributor would be entitled to a share of surplus funds contributed by other persons, who logically must have contributed moneys at a later point of time. … 120 It is not apparent therefore that there was a surplus. If the appellants had otherwise been successful on their appeal, the Court would have required a greater explanation and analysis of the financial situation in order to determine whether the matter should be remitted to the Land and Environment Court for a proper determination on that question. However, neither course is necessary given that the appellants, in my view, have failed on all other issues in the case. … 122 The trial judge held that she would not have granted relief in this case even if the appellants had established that there had been a breach of the Act, that their funds had not been expended, and that there was a surplus. She said at [128] that it was undesirable for a developer to seek a refund from a Council after the sale of lots in a subdivision in circumstances when it had the benefit of the development consent. She considered the position was compounded when the claim was brought many years after the development consents were granted. 123 I agree with her Honour that these matters were relevant discretionary factors to take into account. I see no error in her Honour’s remarks as to how she would have exercised the discretion. … 127 Unfortunately, notwithstanding the amendments, made to the

Act in 1993 that were directed to ensuring that councils more closely observed the link between the purpose for which contributions were made and actual expenditure, no attention was given to the possibility that s.94 contributions might not be expended, in part, or at all. Although the need for a council to prepare a Contributions Plan to which the s.94 contributions are linked makes it less likely that funds will not be fully utilised, it cannot be assumed that the possibility will never arise. The uncertainty that surrounds the question whether there is an entitlement to a refund, whether or not there has been a breach of the Act, is highly unsatisfactory and legislative attention is needed to clarify the rights and entitlements of both councils and those who are required to contribute funds pursuant to s.94.” Conclusions The following conclusions may be derived from Frevcourt: • With the requirement that s 94 contributions must be imposed in accordance with a Contributions Plan, a council must expend the contributions on the amenities for which the contributions were required. • This requirement is subject to any amendment of the Contributions Plan. A council may amend a Contributions Plan to alter the extent and type of public amenity or service that is required by a development and apply existing s 94 funds to those altered amenities or services. • It is likely that there is no power to refund s 94 contributions. There is no private right in relation to money held for a public purpose, but there may be a right to restitution. The absence of statutory provisions regarding refunds or repayments suggests that there is no legislative intention to provide for refunds. The only right likely is a right to compel a council to use the money for the public purposes for which they were contributed. The question of what happens to any surplus of moneys is unclear. • In declining, on discretionary grounds, to provide relief in relation

to alleged breaches of s 94, it is a relevant consideration if the developer had already taken the benefits of the development consent.

¶59-260 Baulkham Hills Shire Council v Wrights Road Pty Ltd Following the NSW Court of Appeal decision in Baulkham Hills v Group Development Services invalidating the indexing provisions in a Contributions Plan (see ¶59-190), another property developer who had paid a s 94 monetary contribution, with the indexation subsequently found to be invalid, sought recovery in the District Court for the indexation amount which it had paid some two and a half years earlier. The Council sought to avoid repayment by reliance on the Recovery of Imposts Act 1963 (NSW) (RoI Act). On appeal to the NSW Court of Appeal, Spigelman CJ (with whom McColl JA and Gzall J agreed) held in Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) NSWCA 152 (Wrights Road) at paragraphs [5]–[6], [16]–[17] and [19]–[21] as follows: “5 The issue which falls for consideration in this matter is the interpretation of the definition of ‘tax’ under s1A of the Imposts Act. That definition is: ‘tax’ includes a fee, charge or other impost; 6 Section 2 of the Imposts Act relevantly states: ‘2(1) No proceedings shall be brought to recover from the Crown or the Government or the State of New South Wales or any minister of the Crown, or from any corporation, officer or person or out of any fund to whom or which it was paid, the amount or any part of the amount of any tax paid, under the authority or purported authority of any Act: … subsequent to the commencement of this Act, after the expiration of twelve months after the date of payment. …’

Section 5 of the Imposts Act states: ‘5 If because of this Act money paid by way of tax or purported tax ceases to be or is not recoverable, the right to recover the money is extinguished.’ … 16 The word ‘impost’ extends, in my opinion, to a requirement to make a payment for a public purpose imposed, pursuant to statutory authority expressly providing for monetary payment, as a condition for the exercise of a statutory power. 17 A clear indication of the Parliamentary intention about the scope of the definition of ‘tax’ is found in the fact that the word ‘Impost’ appears in the title of the Act. It is not the Recovery of Taxes Act, but the Recovery of Imposts Act. This confirms the intention that the scope of the Act goes beyond common law jurisprudence on the meaning of ‘tax’. … 19 The natural and ordinary meaning of the word ‘tax’ would not usually extend to a ‘fee’ or ‘charge’. The inclusive definition was clearly intended to expand the concept of a tax, as it had developed in case law over many years in a variety of statutory and common law contexts. There is no warrant to construe the word ‘impost’ so narrowly as to be equivalent to the word ‘tax’ as so understood. The purpose of the extended definition was to avoid any such result. As a matter of drafting convenience the single word ‘tax’ was used in the operative provisions of the Imposts Act. 20 In its operation as a condition of consent, the developer is not obliged to make the payment unless the development is to proceed. However, s7 of the Imposts Act expressly states that the Act applies ‘to money paid whether voluntarily or under compulsion’. Once a s94 Contribution is paid, the payment can accurately be described as having been imposed pursuant to statutory authority. 21 In my opinion, a s94 Contribution is an ‘impost’ and,

accordingly, a ‘tax’ within s1A of the Imposts Act. The Respondent’s claim for recovery of those funds is time barred by s2 and s5 of that Act.” Interestingly, it was not argued that there was a power to refund s 94 contributions as was suggested in Frevcourt, which was delivered some two months earlier. Conclusion The following conclusion may be derived from the decision in Wrights Road: • A s 94 contribution is an impost for the purposes of the RoI Act and that acts as a time bar to proceedings for recovery of contributions unless they are commenced within 12 months after the date of payment.

¶59-270 Principles regarding development contributions The key principles derived from the discussion on development contributions are as follows: Principle 1: Development contributions may be required as a condition of a development consent where authorised by the following: • a s 94 local infrastructure contribution, being the dedication of land free of cost or the payment of a monetary contribution (s 94 of EPA Act) • a fixed percentage levy on the proposed cost of carrying out the development, being a monetary contribution (Note, however, that a fixed percentage cannot be imposed where a s 94 local infrastructure contribution has also been imposed (s 94A of EPA Act).) • a special infrastructure contribution, being a monetary contribution, the dedication of land or the provision of a material public benefit, but only in special contributions areas (usually growth centres) (s 94EF of EPA Act), and

• contributions for Affordable Housing, being monetary contributions or the dedication of land free of cost, but only where required by a SEPP (s 94F–94G of EPA Act). Principle 2: A planning authority (any public authority) may enter into a planning agreement with a developer under which a developer can agree to dedicate land free of cost, pay a monetary contribution or provide any other material public benefit to be used for a public purpose as defined (s 93F(1)–(1) of EPA Act). A planning agreement can be entered into where the developer or associate has sought a change in an EPI, or has made, or proposes to make, a DA (s 93F(1) of EPA Act). A planning agreement may (but is not required to) exclude the power to impose conditions requiring other types of development contributions (s 93F(3A)–(7) of EPA Act). Principle 3: A council, as a consent authority, may only impose a condition of a development consent requiring s 94 local infrastructure contributions or a fixed percentage levy if it is of a kind allowed by, and is determined in accordance with, a Contributions Plan (s 94B(1) of EPA Act). However, if the consent authority is not the Council, that consent authority may impose a condition, even if it is not authorised by, or of a kind allowed by, or determined in accordance with, a Contributions Plan (s 94B(2) of EPA Act). On a merit appeal, the NSWLEC may disallow or amend any condition for a development contribution if the Court considers it unreasonable in the particular circumstances of a case, even if the condition was determined in accordance with a Contributions Plan (s 94B(3) of EPA Act) (Rose Consulting v Baulkham Hills). Principle 4: The development contributions provisions of the EPA Act (including s 94) are the sole source of power for a consent authority to impose a condition on a development consent requiring the dedication of land without cost or the payment of monetary contributions, and the general power to impose conditions on a consent under s 80A is not an alternative source of power for such conditions (Fitch, Fairfield v Olivieri). Principle 5: A consent authority may impose a condition on a consent under s 94 requiring development contributions only if:

• one or other of the two limbs in s 94(1) are met, namely: (1) the particular development will, or is likely to, require the provision of the public amenities or public services in question, or (2) the particular development will, or is likely to, increase the demand for the public amenities or public services in question, and • the condition satisfies the three tests under Newbury. (Hammersmith) Principle 6: What constitutes public amenities and public services under s 94 should be broadly construed as the requirements in s 94 requiring that a development will, or is likely to, require the provision of, or increase the demand for, the public amenities and public services in question, plus the Newbury tests, providing for adequate accountability. What constitutes public amenities and public services changes over time, depending on changes in society. However, the amenity or service needs to provide a public benefit, although physical accessibility by the public to the amenity or service is not necessary (Stockland v Shellharbour). Principle 7: Public amenities or public services do not include water supply or sewerage services for the purposes of the development contribution provisions of the EPA Act (s 93C of EPA Act). Water supply authorities are empowered to levy developers for water and sewerage works under the WM Act. Principle 8: Section 94 does not require proof of a direct connection between the development the subject of the consent and the public amenities or public services upon which the contribution is to be spent. Rather, it is sufficient if the public amenities or public services serve the centre as a whole and form part of an integrated approach to an issue, which would confer a general benefit on all sites in the particular centre (Parramatta v Peterson, Toadolla). There needs to be a connection between the proposed development

and the amenity to be provided to satisfy the increased demand. Compliance with the second test in Newbury that a condition fairly and reasonably related to the development would also satisfy the requirement for a connection under s 94(1) (Russo v Burwood). The date on which the connection is to be established is the time when the condition is imposed, not at some later time (Toadolla). Principle 9: The reference to area in the requirement in s 94, that a development will or is likely to require the provision of or increase in demand for amenities or services within the area, is a reference to the LGA of the Council (Parramatta v Peterson, Russo v Burwood). Principle 10: A condition may be imposed on a development consent under s 94 requiring a reasonable monetary contribution towards recoupment of the cost of providing public amenities and public services which have already been provided where the development (the subject of the consent) will benefit from those amenities and services (s 94(3) and (4) of EPA Act). Where a development contribution is required as a condition of consent towards recoupment of the cost of providing a public amenity or service, the cost is the actual historical cost. That cost can be indexed in accordance with the EPA Regulation. In calculating the cost of a public amenity or service for the purposes of s 94(3), any subsidies provided by external parties should be excluded. In calculating the cost of a public amenity or service for the purposes of s 94(3), interest payments on moneys borrowed to meet that cost can be included, but the cost of maintaining the physical asset after it has been provided cannot be included (Allsands). Principle 11: Even though the development contributions provisions of the EPA Act (including s 94) are the exclusive source of power for a consent authority to impose a condition on a consent requiring that land be dedicated free of cost or a monetary contribution be paid, this does not preclude a consent authority imposing, as a condition of a development consent, that a developer undertakes work off-site at its own expense, even if that work might or would benefit the public. However, such a condition would need to be related to the development and not be unreasonable. Such a condition is expressly

authorised by s 80A(1)(f) and that power should not be read down even if the effect is to authorise something done indirectly which cannot be done directly even though it may have the same commercial effect (Fairfield v Olivieri). Principle 12: In determining a merit appeal regarding development contributions, the NSWLEC has the same powers as the consent authority. In addition, the Court has an extra power under s 94B(3) to disallow or amend a condition of a consent imposing development contributions, even if that condition, as amended by the Court, no longer conforms with the Contributions Plan. Contributions Plans are not a form of delegated legislation preventing the Court from disallowing or amending a contributions condition of a consent that was imposed in accordance with a Contributions Plan. In making a decision under s 94B(3) to disallow or amend a contributions condition, the Court is not amending the Contributions Plan itself, but is providing a signal that until the Contributions Plan is amended, any challenge for a similar condition is likely to succeed. The test under s 94B(3) empowering the Court to disallow or amend a contributions condition if it is unreasonable in the circumstances of the case, is not one of unreasonableness to a Wednesbury standard, but of reasonableness to its ordinary meaning (Rose Consulting v Baulkham Hills). Principle 13: A Contributions Plan is required to set a contribution rate. That rate cannot change from time to time or be updated, other than by an adjustment by readily accessible index figures adopted by the plan (Baulkham Hills v Group Development Services). Principle 14: Where a project involves a number of sequential development consents (such as a subdivision consent for residential allotments followed by a development consent or complying development certificate for a dwelling), a council may impose a condition of consent requiring development contributions for later consents even though such a condition was also imposed on earlier consents. This may arise where the applicable Contributions Plan has been altered between the date of the first consent and subsequently considered to add additional public amenities and public services for

which contributions may be imposed (Broker v Shoalhaven). Principle 15: A Contributions Plan may require an accredited certifier to impose a condition on a complying development certificate requiring payment of s 94 contributions (Broker v Shoalhaven). Principle 16: Section 94 imposes four obligations on the consent authority: (1) to hold the money for the purpose for which the payment was required (2) to apply the money towards providing the relevant public amenities or services (3) to do so within a reasonable time, and (4) to apply the moneys in such a manner as will meet the increased demand for those amenities or services. (Levadetes, as modified by changes to s 94) Principle 17: The question of “what is a reasonable period of time to apply s 94 contributions for the purposes for which they were imposed?” varies according to the circumstances of each case. A longer period of time is reasonable where the Council does have a general pool for a specific purpose, but where the locality is discrete, the task is simple and the possible choices are limited, a relatively short period of time is reasonable (Levadetes). Principle 18: Section 94 is silent as to the consequences which flow if a council has not complied with the requirement to expend a contribution for the requisite purpose within a reasonable time. But, under s 124 the Court has wide powers to make such orders as it thinks fit (Idameneo). Principle 19: Where there has been a breach of the requirements to spend s 94 contributions within a reasonable time, ordinarily, the appropriate order would be to require the Council to perform its obligation (Levadetes, Idameneo). Principle 20: Where a s 94 contribution is imposed as a condition of a

development consent and the money has been actually paid, if that money has been spent in accordance with s 94, that disposes of the matter. The consent authority is not required to hold back providing public amenities or services to ascertain if a developer proposes to act of a development consent (Denham v Manly). Principle 21: With the requirement that s 94 contributions must be imposed in accordance with a Contributions Plan, a council must expend the contributions on the amenities for which the contributions were required. This requirement is subject to any amendment of the Contributions Plan. A council may amend a Contributions Plan to alter the extent and type of public amenity or service that is required by a development and apply existing s 94 funds to those altered amenities or services (Frevcourt). Principle 22: It is likely that there is no power to refund s 94 contributions. There is no private right in relation to moneys held for a public purpose, but there may be a right to restriction. The absence of statutory provisions regarding refunds or repayments suggests that there is no legislative intention to provide for refunds. The only right likely is a right to compel a council to use the money for the public purposes for which they were contributed. The question of what happens to any surplus of moneys is unclear (Frevcourt). In declining on discretionary grounds to provide relief in relation to alleged breaches of s 94, it is a relevant consideration if the developer had already taken the benefits of the development consent (Frevcourt, Toadolla). Principle 23: A s 94 contribution is an impost for the purposes of the RoI Act and that acts as a time bar to proceedings for recovery of contributions if commenced 12 months after the date of payment, assuming there is a right for recovery (Wrights Road).

CONSEQUENCES OF INVALIDITY OF A CONDITION: SEVERANCE ¶60-010 Greek Australian Finance Corporation Pty Ltd v

Sydney City Council — challenge to the validity of a condition of a development consent If a condition of a development consent is found to be invalid, what are the consequences of that invalid condition for the consent as a whole? In Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 (Greek Australian Finance), Holland J in the Supreme Court of NSW heard a challenge to the validity of a condition of a development consent for the redevelopment of a site in the central business district of Sydney. The Council granted the development consent subject to a condition requiring a monetary contribution in lieu of car parking. Holland J held that he was constrained by authority to find the condition beyond power and hence, invalid. As to the consequences of finding the condition invalid, Holland J held at p 143–145 as follows: “The plaintiff’s third submission was that the condition in question was severable and that the council’s approval should be declared to be a valid approval with the void condition excised. It is my opinion that it is not open to me to take that course. … The council also had before it, in the report, a statement that the floor space ratio exceeded the council’s code but that this objection could be disregarded because of the applicant’s willingness to make a contribution towards car parking space. … I do not think that I can assume that, if it had so proceeded, the council would have approved the application or say that its rejection on that ground would have been beyond its powers. It is not possible to say what the council’s decision would have been if the applicant’s offer to contribute to the Car Parking Fund had not been made because the council was never called on to consider the application on that basis. … Thus it was possible in that case to know what the council’s decision would have been if no financial contribution was to be made by the applicant. In my opinion, the correct view to take in the present case is that

the condition objected to was a fundamental element of the approval which the council gave, and that in dealing with the application the council proceeded on a false basis, either as to its powers to impose the condition, or as to its expectation that the applicant would voluntarily pay the contribution required. I think it is clear that the council has never considered or approved the application simply on the basis that no car-parking space was to be provided and no contribution in lieu thereof was to be made by the applicant. On this view the condition in question cannot, in my opinion, be struck out as severable and its invalidity renders the whole approval invalid. To borrow the language of Lord Morris in Kingsway Investments (Kent) Ltd v Kent County Council [1971] A.C. 72, at p. 102, the condition was part ‘of the structure of the permission [p 145] so that if the condition is hewn away the permission falls with it’. See also Kriticos v Parramatta City Council (1971) 21 LGRA 404 at pp. 408–409). In the result I think that the plaintiff is entitled to a declaration in accordance with par. 1 of the summons, that is to say, a declaration that condition 2 of the development consent is ultra vires the defendant council but that I should not make the other declarations claimed by the summons. Instead, I will declare that the development consent is void and of no effect.” The decision in Greek Australian Finance was a rather spectacular own goal. The applicant stated to the Council a willingness to contribute car parking and, when granted a development consent with a condition requiring a monetary contribution for car parking, challenged the validity of that condition. But in succeeding in the challenge, the applicant lost the entire consent. Conclusions The following conclusions may be derived from Greek Australian Finance: Where a condition of a consent is found to be invalid, that condition is

not severable and the entire consent is invalid if: • the condition was a fundamental element of the approval • the consent authority granted the approval on a false basis, either as to the extent of its power or the applicant’s agreement to such a requirement, and/or • the consent authority had not considered or approved the development on the basis that no car parking or no contribution for car parking would be provided. The Council appealed the decision to the NSW Court of Appeal in relation only to the validity of the condition, while no appeal was lodged by the developer in relation to the issue of severance. The developer made a submitting appearance, having no further interest in the project. In Sydney City Council v Greek Australian Finance Corporation Pty Ltd (1974) 32 LGRA 32, the Court of Appeal declined to consider the substance of an appeal absent a proper contradictor.

¶60-020 Randwick Municipal Council v Pacific-Seven Pty Ltd In Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 (Pacific-Seven), Stein J in the Land and Environment Court of NSW (NSWLEC) heard an appeal on a question of law regarding the validity of a condition of a development consent granted by the Council for a convenience food store with self-service petrol facilities. The Council imposed a condition on the consent that “Council reserves the right to restrict the hours of operation should any nuisance occur”. The Council claimed that nuisance had occurred and reduced the approved hours of operation, and then commenced proceedings when the operator failed to comply. Stein J held that the condition was invalid on the grounds that it lacked finality and reserved for the consent authority a capacity to impose further conditions at a later time. Although this case was decided prior to the NSW Court of Appeal decision in Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) LGRA 349 (Mison), the Court’s

decision that the condition was invalid rests on what is now the second ground in Mison. Stein J held at p 16–20: “Severability: The issue of whether the invalid condition can be severed is not, in my view, as clear cut as the issue of invalidity of the condition. This is partly [p 17] because it is difficult (at least for me) to seize upon the ‘true test’ of severability in Kingsway Investments [Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72], Lord Reid stated it thus (at 90): ‘Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly, in my view, the condition should be severed and the permission should stand. But suppose, on the other hand, that a condition, though invalid because ultra vires or unreasonable, limits the manner in which the land can be developed, then the condition would not be severable, for if it were simply struck out the result would be that the owner could do things on his land for which he never in fact obtained permission, and that would be contrary to the intention of the statute.’ A little later in his speech Lord Reid added: ‘I do not think that striking out the time conditions would alter the character of these permissions.’ According to the speech of Lord Morris of Borth-y-Gest (at 102– 103): ‘There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some

condition is seen to be a part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls away with it. In his judgment in Hall & Co Ltd v Shoalhaven-by-Sea Urban District Council [1964] 1 WLR 240, at 251–252; [1964] 1 All ER 1, at 10 Willmer LJ pointed to the contrast between a case in which one or two trivial conditions might be held to be ultra vires (where it would be difficult to justify saying that the whole permission failed) and a case in which conditions are ‘fundamental to the whole of the planning permission’ in which case the planning permission would fail. In the same case Pearson LJ (as he then was), differentiated, (at 261; 18), between conditions which are ‘essential, or at least important’, and those which are ‘trivial or at least unimportant’. ’ Lord Guest proceeded to deal with the question of severability although he had found the condition intra vires. He stated (at 106–107): ‘I have not found it an easy question. It would, in my view, be a very surprising result for the law to reach, that although the planning authority had given outline planning permission which was to expire at the end of three years, unless details were approved by them within that time, yet because a time limit was ultra vires unlimited planning permission remained to be exercised at anytime in future upon the approval of the reserved matters. This may, of course, be a result of the authorities but I should not, without considerable hesitation, reach such a conclusion. Planning permission is an animal sui generis not to be compared with licences and similar permissions. It seems to me that planning permission is entire. If a condition as to its grant flies off owing to its invalidity, the whole planning permission must go; and it is impossible to separate the outline permission without the time limit from the grant. The good part is so inextricably mixed up with the bad that the whole must go (see Pigot’s Case (1614) 11 Co Rep 26b, at 27b [p 18]

and McDonald v McDonald [1875] LR 2 Sc & Div 482, at 488–489, Lord Cairns LC). I agree with the observations of Hodgson LJ (as he then was) in the Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 579. I agree, therefore, for these reasons and also for the reasons given by my noble and learned friend, Lord Morris of Borth-y-Gest, that if the condition is invalid the invalid part cannot be separated from the permission and the whole permission must go.’ Lord Upjohn (who with Lord Reid was in the minority) canvassede [sic.] the issue of severability in his speech. After referring to the authorities, including Hall & Co v Shoreham-by-Sea Urban District Council, he said: ‘In these two cases (clearly correctly decided on this point), however, it is of cardinal importance to note that the invalid conditions went to the root of the planning permission itself and severely restricted the permission applied for, and the observations of Hodgson and Pearson LJJ respectively must be read in that light.’ The decision of the House of Lords in Kingsway Investments was applied in the New South Wales Court of Appeal in Parramatta City Council v Kriticos [1971] 1 NSWLR 140; 21 LGRA 404. In the leading Judgment of Asprey JA (with whom Holmes and Moffitt JJA agreed) his Honour said (at 145; 408–409): ‘I am of the opinion that when the tests to which I have just referred are applied to the conditions attached to the consent here it will be seen that they relate to matters fundamental to the development or, as it has been put, to the root of the planning permission itself and restricted the permission applied for. Accordingly, in my opinion, the condition, if it were invalid, would render invalid the consent itself.’ Kingsway Investments was also applied by Stephen J, as he then was, in Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; 30 LGRA 19. In his opinion severance would not in any way affect the operation of the determination and ‘not alter the

substantive intended effect of the tribunal’s determination’. To my thinking a most important decision for this case is Greek Australian Finance v Sydney City Council (1974) 29 LGRA 130. Holland J felt constrained by authority to hold that a condition requiring a monetary contribution towards car parking was invalid. At 143–144 his Honour dealt with the question of whether the condition was severable from the Council’s approval. In considering the factual situation Holland J said: ‘I do not think that I can assume that, if it had so proceeded, the council would have approved the application or say that its rejection on that ground would have been beyond its powers. It is not possible to say what the council’s decision would have been if the applicant’s offer to contribute to the car parking fund had not been made because the council was never called on to consider the application on that basis. The fact by itself that no parking facilities were being offered could have been regarded by the council as decisive against the application.’ He concluded: ‘In my opinion, the correct view to take in the present case is that the condition objected to was a fundamental element of the approval which the council gave, and that in dealing with the application the council [p 19] proceeded on a false basis, either as to its powers to impose the condition, or as to its expectation that the applicant would voluntarily pay the contribution required. I think it is clear that the council has never considered or approved the application simply on the basis that no car-parking space was to be provided and no contribution in lieu thereof was to be made by the applicant. On this view the condition in question cannot, in my opinion, be struck out as severable and its invalidity renders the whole approval invalid. To borrow the

language of Lord Morris in Kent County Council v Kingsway Investments (Kent) Ltd the condition was part ‘of the structure of the permission so that if the condition is hewn away the permission falls with it’. ’ In Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166 Helsham J (sitting in the Equity Division of the New South Wales Supreme Court) held a condition of a subdivisional approval under the Local Government Act to be invalid. After referring to Kingsway Investments his Honour observed: ‘While one might be pardoned for assuming that if any grounds for disapproving the application exist it would not be approved, particularly in light of the provisions of the interim development order, nevertheless I am not satisfied that the condition is so extraneous to the approval as to enable me to say that the approval is valid with the condition excised. Although there is no evidence before me it may be that the council approached the whole matter upon a false basis, namely that there was an existing right of way, and while I cannot see that if the correct position were before the council this would make any difference to its decision, nevertheless I am not satisfied that the condition is one that should be excised, leaving the approval intact. The condition is invalid, and it is open for me to declare it so. But if I do I think its invalidity renders void the approval.’ When one applies the authorities to the facts in this matter a number of conclusions may be drawn. It seems apparent that the Council believed that what it was doing, in imposing condition 4, was lawful. It obviously considered that it had the power to impose the condition recommended by its chief town planner and, conformably with his advice, restrict the hours of operation later in the event of a nuisance. Indeed, this is what it purported to do in early 1988. It seems to me that the Council’s consideration of the development application proceeded on a false basis. What would it have done if it had known it could not impose such a condition? Would it have granted a consent unlimited as to time? Would it have restricted the hours in the consent itself or granted consent

limited as to time to allow for a review at a later stage? Or would it have refused the application? It is impossible to know. This points up the difficulty of excision. In my opinion the issue of the hours of operation of the development and whether they should be restricted was fundamental and went to the root of the consent. The issue cannot be seen as unimportant or incidental. Applying the tree analogy of Lord Morris, it is not a question of losing a branch. Rather the issue goes to the structure of the consent which must fall with it. The issue of hours forms an integral part of the approval. It cannot be said that when one excises the invalid condition the consent remains of the same character as before. Further, it cannot be suggested that the condition does not relate to the development, or refers to matters antecedent or extraneous to the consent. Whichever is the ‘true test’ of severability I [p 20] am driven to the conclusion that the invalid condition cannot be severed from the consent and the whole consent must fall with it.” Conclusions The following conclusions may be derived from the decision in PacificSeven: Where a condition of consent is found to be invalid, the invalid condition cannot be severed from the consent and hence, the whole consent is invalid if: • the condition relates to an issue which was fundamental and went to the root of the consent, rather than an issue which is unimportant or incidental • the condition relates to an issue which forms an integral part of the consent, without which the consent does not have the same character, rather than a matter antecedent or extraneous to the consent, and/or • the condition is one which, if the consent authority had been aware

it could not have imposed, it is unclear whether it would have granted consent at all, and hence, the consent authority considered the application on a false basis. However, it is unclear which of the above is the correct test of severability.

¶60-030 Wechsler v Auburn Council In Wechsler v Auburn Council (1997) 130 LGERA 134 (Wechsler), Talbot J in the NSWLEC heard a question of law as to whether a condition of a development consent requiring a monetary contribution for road construction that had been found to be invalid was capable of being severed while the remainder of the development consent remained in force. Talbot J held at p 135–138 as follows: “The sole remaining question to be determined is whether the condition can be severed and the balance of the development consent granted on 13 June 1995 remain in force. The applicant relies on s 32(2) of the Interpretation Act 1987 (NSW) to maintain that the remainder of the development consent, after deletion of condition 13, is not affected. In Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13, Stein J followed the decision of the House of Lords in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 (applied by the Court of Appeal in Parramatta City Council v Kriticos [1971] 1 NSWLR 140; (1971) 21 LGRA 404 and adopted by Holland J [p 136] in Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130) to find that a condition relating to the hours of operation of the development was fundamental to the decision to grant consent and thus, because it went to the very root of the consent, it could not be severed. His Honour does not

appear to have been referred to s 32 and the presumption of validity in respect of the remainder of the instrument. The applicant contends that, as the residue of the consent will not operate differently to the manner in which the whole would have operated, the validity of the remainder of the consent is not displaced: Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101 and Coleman v Gray (1994) 55 FCR 412 at 430, where Gummow J applied the reasoning followed by Dixon J, as he then was, in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 371. Mr Wilson, on the other hand, cites relevant authority including Greek Australian Finance and Kent to demonstrate that the question of access was a matter which was at the forefront of the council’s concerns in respect of the development and that in the absence of a resolution of the problems relating to access, development consent would and indeed should have been refused after a consideration of the matters referred to in s 90(1) (i) and (j) of the Act. If he is right about the proper test to be applied, it could be reasonable in the circumstances to adopt the argument put forward by Mr Wilson in this respect if the evidence supported it. Unfortunately Mr Wilson has not taken up the issue raised on behalf of the applicant by Mr Robertson, namely, that s 32 of the Interpretation Act reversed the common law presumption of invalidity of instruments, parts of which were invalid. Section 32 provides, in full, as follows: ‘(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of such provision to any person, subject-matter or circumstance, would but for this section, be construed as being in excess of the power conferred by the Act under which it is made —

(a) it shall be a valid provision to the extent to which it is not in excess of that power; and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.’ The whole of condition 13 is invalid as exceeding the power conferred by the Act. No part of it is saved by s 32(2)(a). The common law rule is that where part of an instrument contains a provision which is not within the scope of the power created by the statute, the whole of the instrument is invalid. Statutory rules of construction, of which s 32 is but an example, have reversed the common law presumption of invalidity in many jurisdictions. Dixon J explained the rationale behind the common law rule in Bank of New South Wales v Commonwealth (at 369–371). He stated that [p 137] the effect of such severability clauses is to reverse the presumption that a statute is to operate as a whole so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. The presumption of validity may only be displaced where the severed instrument operates in a fundamentally different way to the original instrument. The test is whether the rejection of the invalid part would have the result that the balance or remaining part of the provision would operate differently or in some other way would produce a different result. The council, as the consent authority, is required by s 92(1) to give notice of the determination of the development application in the prescribed form and manner. The notice of determination

issued by the council on 13 June 1995 and of which condition 13 forms part therefore fits the definition of ‘instrument’ where it appears in s 3 of the Interpretation Act as being an instrument made under an Act. I accept what Cole J said in Sloane (at 101) that provisions such as s 32 should be approached consistently with the principles of interpretation enunciated by Dixon J in Bank of New South Wales v Commonwealth. The test so understood is that if severance results in the balance operating in a manner which is different to that in which the whole would have operated, then severance cannot be affected. Such a test is to be distinguished from the test derived from the authorities analysed by Stein J in PacificSeven, namely, whether the condition under challenge relates to matters fundamental to the development or goes to the root of the planning permission itself. Although the answer to some factual situations could be the same, the application of the different tests will not always bring about the same result.

In the present case, the consent after severance of condition 13 will continue to satisfy its statutory purpose of regulating the development pursuant to the Act. The fact that the council may have come to a different decision if it had known the levy of a contribution pursuant to condition 13 was not enforceable does not mean that the consent will operate differently upon the applicant or produce a different result. The determination of the council remains a development consent within the meaning of the Act after severance. The operation of the residue is no different to the manner in which the whole would have operated. In order to reverse the statutory presumption that the remainder of the instrument shall not be affected, it must be shown that the consent will operate differently in the sense explained in the Bank of New South Wales case. The presumption has not been displaced in the present case. Whereas Stein J does not appear to have referred to s 32 or the Bank of New South Wales case in Pacific-Seven, Cole J makes specific reference to the principles applicable as being those set forth in the judgment of Dixon J and then sets out s 32 in full, following which he made the following observation (at 101): ‘Provisions such as s 32 are to be approached consistently with the principles of interpretation enunciated by Dixon J in Bank of New South Wales v Commonwealth. The court is required to have regard to the intention of the legislature, but if it appears that severance of an ultra vires portion of a regulation (or form prescribed by such a regulation) results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as s 32, severance [p 138] cannot be affected. This is because the residue would operate differently to the apparent intention of the legislature.’ The above approach is consistent with the observations made by Gummow J in Coleman v Gray (at 430).

The fact that the council will not have the benefit of a contribution for road works does not mean that the consent will operate in such a way that it would be regarded as different to the manner in which the whole would have operated.” Conclusions The following conclusions may be derived from Wechsler: • The general common law rule is that, where part of an instrument contains a provision that is beyond the scope of power created by the statute, the whole of the instrument is invalid. • The general common law rule presuming invalidity is reversed by s 32 of the Interpretation Act 1987 (NSW) (Interpretation Act) to permit the severance of an invalid part, provided the balance remaining does not operate in a manner different to the way the whole would have operated without any severance. • A development consent is an “instrument” within the definition in the Interpretation Act and hence, the provisions of s 32 of that Act apply to development consents.

¶60-040 MLC Properties v Camden Council In MLC Properties v Camden Council (1997) 96 LGERA 52 (MLC Properties) at p 57–59, Lloyd J in the NSWLEC followed the approach in Wechsler, while in Hutchinson 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151, Cowdroy J, while noting the divergence between Pacific-Seven and Wechsler, held that the condition under consideration was severable under both approaches and thus, avoided any consideration of which one was correct.

¶60-050 Winn v Director-General of National Parks and Wildlife In Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17 (Winn), the NSW Court of Appeal heard a challenge to the lawfulness of mineral sands mining at Tomago, near Newcastle. The

majority of the Court (Spigelman CJ and Powell JA) held that a condition in the development consent approving re-mining was valid. Hence, the majority on this issue did not consider the consequences of invalidity. However, Stein JA found that the condition was invalid in part on the basis of the second ground in Mison (paragraphs [203]– [211]). Stein JA then considered the consequences of invalidity. He held at paragraph [212] as follows: “212 In my view, the words in condition 64 following ‘once only’ were beyond the power of the council to impose. It does not follow, in my opinion, that other conditions are similarly invalid or that the whole consent falls, see, for example, Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13. The invalid rider to condition 64 may be severed and the consent remain valid and operative. A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage. If a condition is fundamental to the whole of the consent, it cannot be severed and the whole consent is invalid. That is not the situation here.” Interestingly, Stein JA cited the same authorities he had relied upon in Pacific-Seven, but without any reference to Wechsler. In relation to this aspect of Stein JA’s judgment, Powell JA held at paragraph [125] as follows: “125 If, however, contrary to the view which I have just expressed, such approvals or consents could properly be regarded as fundamentally altering the nature of the development to which, in each case, the ‘consent’ was given then, as the passages from the Judgments of Priestley and Clarke JJA in Mison v Randwick Municipal Council make clear the result, in law, would be, not — as Stein JA’s Judgment seems to suggest — that, to the extent to which Conditions 17 and 64 make provision for the giving of such approvals or consents, those conditions may be set to one side, but, rather, that there has never been a valid consent to the proposed development described in each application for development consent.” It appears that the approach of Powell JA in Winn is preferred for the

following reasons: • The two grounds in Mison are directed to the question of whether there is a consent at all or whether there is not a consent due to a failure to grant a consent or a failure to grant a consent to the development application under consideration. Hence, where a consent fails to meet one of the grounds in Mison, there is no consent at all and the question of severance does not arise. • While one particular condition of a development consent may demonstrate a failure to meet one of the grounds in Mison, the offending condition is an indicator that the consent as a whole does not comply with the requirements in Mison; it is not simply that the particular condition itself is invalid. Thus, it appears that severability only arises where a condition is held to be invalid, but has no applicability where the consent is held not to be a consent at all on the basis of a failure to comply with the requirements in Mison. It is noted that, in Pacific-Seven, the condition found by Stein J, as he then was, to be invalid was because it failed to comply with the first ground in Mison, while the condition found to be invalid in Wechsler was invalid not for any failure to comply with the requirements in Mison.

¶60-060 Anambah Homes Pty Ltd v Maitland City Council [No 2] In Anambah Homes Pty Ltd v Maitland City Council [No 2] [2004] NSWLEC 719 (Anambah Homes), Pain J in the NSWLEC held that it was unnecessary to decide between the tests of severability in Wechsler and Pacific-Seven as the condition in question was severable under both tests. On appeal in the NSW Court of Appeal, in Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, Tobias JA agreed with Pain J that the condition was severable on the basis of both tests without deciding what is the correct approach (see Tobias JA at paragraph [176] with Spigelman CJ agreeing at paragraph [22] and

Ipp JA agreeing at paragraph [49]).

¶60-070 Principles regarding the consequences of invalidity of a condition and severance The key principles derived from the discussion on the consequences of invalidity of a condition and severance are as follows: Principle 1: There are two conflicting approaches by the courts towards the consequences of invalidity of a condition of a development consent and whether an invalid condition may be severed, ie leaving the balance of the consent still applying, or whether the consent as a whole is invalid. These two conflicting approaches are as follows: (1) The approach in Pacific-Seven, namely that where a condition of consent is found to be invalid, the invalid condition cannot be severed from the consent and hence, the whole consent is invalid if: • the condition relates to an issue which was fundamental and went to the root of the consent, rather than an issue which is unimportant or incidental • the condition relates to an issue which forms an integral part of the consent, without which the consent does not have the same character, rather than a matter antecedent or extraneous to the consent, and • the condition is one which, if the consent authority had been aware it could not have imposed, it is unclear whether it would have granted consent at all and hence, the consent authority considered the application on a failure basis, although it is unclear which of the above is the correct test of severability (Pacific-Seven, Greek Australian Finance, Anambah Homes). (2) The approach in Wechsler, namely that:

• the general common law rule is that where part of an instrument contains a provision that is beyond the scope of power created by the statute, the whole of the instrument is invalid • the general common law rule presuming invalidity is reversed by s 32 of the Interpretation Act to permit the severance of an invalid part, provided the balance remaining does not operate in a manner different to the way the whole would have operated without any severance, and • a development consent is an “instrument” within the definition in the Interpretation Act and hence, the provisions of s 32 of that Act apply to development consents. (Wechsler, MLC Properties, Anambah Homes) Principle 2: Where a development consent is held to have not complied with the first requirement of Mison, it is unclear as to whether a condition indicating such a failure to comply is severable from the consent or whether there never was a valid consent at all (Powell JA and Stein JA in Winn).

SAVINGS AND TRANSITIONAL PROVISIONS RELATING TO DEVELOPMENT CONSENTS ¶61-010 Former planning approvals are now development consents Prior to the commencement of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 1 September 1980, development consents under prescribed planning schemes and interim development approvals under Interim Development Orders (IDOs) could be granted under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919). With the enactment of the EPA Act, prescribed planning schemes and

IDOs under Pt 12A of the LG Act 1919 were carried forward as deemed environmental planning instruments (EPIs) and the definition of an EPI in the EPA Act, as originally enacted, explicitly included a deemed EPI unless expressly provided otherwise. These transitional arrangements relating to an EPI have been discussed in relation to the process of making Local Environmental Plans (LEPs). A different approach was taken in relation to development consents and interim development approvals granted under Pt 12A of the LG Act 1919 prior to the commencement of the EPA Act. They were not deemed to be development consents under the EPA Act, but were continued in full force and effect by cl 7 of Sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205 (NSW) (MARA Act). In Paul Winn v Director-General of National Parks and Wildlife and RZM Pty Ltd (unreported decision of Bannon J in the Land and Environment Court of NSW (NSWLEC), No 40209 of 1999, delivered on 23 November 1995), Bannon J confirmed the effect of these provisions as follows: “A different course was adopted in the case of existing planning consents. They were not deemed to be planning consents within the meaning of the EPA Act but were continued in full force and effect by virtue of Clause 7 of Schedule 3 to the Miscellaneous Act, subject to conditions. … The provisions in Clause 7(2) and (2) [sic. Should read “(3)”] applying certain sections of the EPA Act to the old planning consents is a clear indication that they did not become planning consents within the meaning of the EPA Act, as it then stood. … If my analysis of the EPA Act be correct, there appears to be no room for the Court to interpolate extra wording in that Act so as to treat development consents under previous legislation as development consents within the meaning of that Act. Cooper Brookes (Wollongong) Pty Ltd v The Federal Commission of

Taxation (1981) 147 CLR 297 at 304–305, 320; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258; Lemair (Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167 at 169. The same observation applies even more strongly to s.92B(11)(a) of the NPW Act. It would be a bold judge who would interpolate a reference to consents under the Miscellaneous Act even if he thought that was fair.” Following this decision, the NSW Parliament enacted the Environmental Planning Legislation Amendment Act 1995 No 90 (NSW), which provided in s 3 as follows: “3 Amendment of Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205 The Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 is amended by inserting after clause 7(3) in Schedule 3 the following subclause: (4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979.” Further, s 2 of that Act gave it retrospective effect by providing that the Act is taken to have commenced on 1 September 1980, the commencement date of the EPA Act and the MARA Act. Thus, former planning approvals granted under Pt 12A of the LG Act 1919 are now development consents within the meaning of the EPA Act.

¶61-020 Protection and exemptions provided to former planning approvals The significance of this change was that it provided to former planning approvals certain protections and exemptions from statutory provisions only afforded to matters the subject of a development consent under the EPA Act, including: • exemption from the definition of an “activity” in s 110 of the EPA

Act and hence, exemption from the application of Pt 5 of the EPA Act • exemption from potentially being subject to a Stop Work Order under s 114 of the Threatened Species Conservation Act 1995 (NSW) (see s 114(4)(a)) and under s 91AA of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) (see s 91AA(4)(a)), and • a defence to any prosecution for harming any animal that is or is part of a threatened species, endangered population or endangered ecological community (EEC) (see s 118A(3)(b)(i) of the NPW Act) or damaging the habitat of a threatened species, endangered population or EEC (s 118D(2)(b)(i) of the NPW Act).

¶61-030 Effect of the repeal of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 In the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW), s 4 provided that the MARA Act is repealed. The effect of the repeal of the MARA Act was to bring into operation s 30 of the Interpretation Act 1987 (NSW) (Interpretation Act). Section 30 of the Interpretation Act provides that the repeal of an Act does not affect the previous operation of the Act or anything duly done under that Act. Hence, despite the repeal of the MARA Act, its provisions (that consents and approvals under Pt 12A of the LG Act 1919 become development consents under the EPA Act) were done under that Act and hence, they continue to operate despite the repeal of the MARA Act.

¶61-040 Development consent does not generally create a right or privilege Section 30 of the Interpretation Act provides that: “30(1) The amendment or repeal of an Act or statutory rule does not:

… (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or …” Section 5(2) provides: “This Act applies to an Act or instrument except in so far as the contrary intention appears in the Act or in the Act or instrument concerned.” Generally, a development consent does not create a right or privilege of the sort protected by s 30: see the High Court’s decision in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 (Eaton v Warringah) at 293–294. However, there are circumstances where a development application (DA) or development consent may constitute a right or privilege so protected, such as in the following instances: • where a savings and transitional provision in an EPI regarding DAs lodged but not determined when an EPI is made, and where subsequently, that EPI is amended to extend new provisions to the pending DA: see Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424, and • where a development consent has been granted and another statute, provided that the carrying out of a development consent cannot be restricted or prohibited by the provision of any Act (other than that Act and the EPA Act), but subsequently that Act is repealed and the successor Act requires consent under that Act. An example of this is the Native Vegetation Conservation Act 1997 (NSW), which provided that clearing under a development consent could not be restricted or prohibited by the provision of any Act (other than that Act and the EPA Act) and, subsequently, that Act was repealed by a successor legislation (the Native Vegetation Act 2003 (NSW)), which required a new consent under the new Act: see Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506 (Vitality Care).

¶61-050 Principles regarding savings and transitional provisions regarding development consents The key principles derived from the discussion on savings and transitional provisions regarding development consents are as follows: Principle 1: A development consent granted prior to the commencement of the EPA Act under a prescribed planning scheme and an interim development approval granted under an IDO, both under Pt 12A of the LG Act 1919, are taken to be development consents within the meaning of the EPA Act and continue in full force and effect (cl 7 of Sch 3 of the MARA Act). Principle 2: A development consent of itself does not create a right or privilege of the sort protected by s 30 of the Interpretation Act (Eaton v Warringah). However, there are circumstances where a development consent may create such a right or privilege as a result of the operation of another statutory provision, such as the former Native Vegetation Conservation Act 1997 (NSW) (Vitality Care).

PRESUMPTION OF REGULARITY, FUNCTUS OFFICIO, ALTERNATIVE SOURCE OF POWER AND ESTOPPEL AND DEVELOPMENT CONSENTS ¶62-010 Issues of relevance There are a number of issues of relevance to the status, lawfulness and capacity to challenge development consents which require consideration. These are: • the presumption of regularity • the doctrine of functus officio • alternative source of power, and

• estoppel. Each of these will be addressed in the following sections.

¶62-020 Presumption of regularity The legal maxim of a presumption of regularity is explained by McHugh JA (with whom Kirby P agreed) in the NSW Court of Appeal in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 164 (Minister for Natural Resources v NSW Aboriginal Land Council) at p 164 as follows: “In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475): ‘… One of the fundamental maxims of the law is the maxim ‘omnia praesumuntur rite esse acta’. It has many applications … The wheels of business will not go smoothly round unless it may be assessed that that is in order which appears to be in order. The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M’Gahey v Alston (1836) 2 M&W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardees v Beaumont [1953] VLR 315 at 318–319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583. The maxim was applied in statutory context in this Court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR

36 where objection was taken to the validity of the imposition of ‘parking area rates’ on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim. His Honour said (at 46–47): ‘… as the case is one where the opinion required by s 121(1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed … In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote.’ A particular application of the maxim which is relevant to this case is stated in Broom’s Legal Maxims, 10th ed (1939) at 642 as follows: ‘… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter [sic. This should read as “solemniter”] esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.’ ” In essence, the maxim of the presumption of regularity provides that, where a public official or authority (such as a consent authority) purports to exercise a power, or to do an act in the course of his/her/its duties (such as granting a development consent), a presumption arises that all conditions necessary to the exercise of that power or doing that act have been fulfilled. Like any presumption, it

applies unless the contrary is demonstrated, effectively placing the onus of proof of invalidity on a challenger and not the public authority whose decision is being challenged. However, the presumption of regularity operates not just to identify where the onus of proof lies. It is a presumption of fact, establishing that the decision is valid unless the contrary is established: see Hodgson AJA (with whom Ipp JA and Davies AJA agreed) in the NSW Court of Appeal in Hill v Woollahra Municipal Council [2003] NSWCA 106 (Hill v Woollahra) at paragraphs [51]–[52]. The presumption of regularity was further explained by Heydon JA (with whom Mason P agreed) in the NSW Court of Appeal in Ashfield Municipal Council v Roads and Traffic Authority of NSW [2001] NSWCA 370 (Ashfield v RTA) at paragraphs [53]–[54] as follows: “53 … Where a statutory power is conferred on terms requiring the prior formation of a particular opinion by the done power, it will be presumed from the exercise of the power that the done had the required opinion: Western Stores Ltd v Orange County Council [1971] 2 NSWLR 36 at 46–47 per Moffitt JA, Asprey JA and Taylor AJA concurring; Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297 per Wilcox J. 54 In McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 Griffith CJ approved the following formulation of Brewer CJ in Know County v Ninth National Bank 147 US 91 at 97 (1893): ‘where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of that prior act.’ …” Thus, Ashfield v RTA provides that where a consent authority is empowered to grant a development consent only after certain matters are undertaken, the grant of consent brings with it a presumption that the prior requirements were met. Stephen Bower Architects Ltd v Waverley Council

Further, the maxim may even assist in establishing the existence of a development consent, as held by Lloyd J in Stephen Bower Architects Ltd v Waverley Council [2003] NSWLEC 16, who, after referring to McHugh JA’s judgment in Minister for Natural Resources v NSW Aboriginal Land Council, held at paragraphs [20]–[21] as follows: “20 More recently, in Ashfield Municipal Council v Armstrong [2002] NSWLEC 269 the Court of Appeal applied the maxim in a case involving the use of a building as flatettes. Although there was, in that case, no record of any development consent, the council had in 1953 written a letter to a bank which claimed to have an estate or interest in the land, to the effect that the council offered no objection to the continuing use of the premises as flatettes. Davies AJA (Mason P and Handley JA concurring) in applying the maxim, said (at [40]): ‘Back in 1953, the officers of the Council would have been in a position to check the history of the subject premises. It is contrary to the maxim to require the respondents at the present time to prove what was the state of affairs with respect to the premises back in the 1940’s. Had the Council’s officers had any concern about the property at the time they could have raised it and the Council could have refused its consent. The consent granted in 1953 has stood for many years and is strong evidence of the fact that the Council legally and regularly consented to the use of the subject premise as a residential building.’ 21 In the present case the council would not and could not have lawfully issued the licences that it did unless either (a) a development consent had been granted for the use of the building as a boarding house or house let in lodgings, or (b) no such development consent was required in 1970.” Centro Properties Ltd v Hurstville City Council However, a narrower view of the operation of the presumption of regularity was taken by McClellan CJ in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 (Centro Properties v Hurstville) in the Land and Environment Court of NSW (NSWLEC).

This case involved a challenge to the validity of a development consent granted by the Council for a cinema and retail complex at Beverly Hills on the grounds that the Council had failed to consider a number of required matters, including the likely noise impacts. The Council submitted that, even though the officers’ report to the Council made no reference to the issue of noise impacts, the presumption of regularity applied to establish that the Council had considered this issue. McClellan CJ held at paragraphs [57]–[62] as follows: “The Presumption of Regularity 57 The presumption of regularity raises a rebuttable presumption of law that official acts are presumed to have been done rightly and regularly. It will apply to planning decisions: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164. In that case, the presumption was described by McHugh JA in the following terms: ‘Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.’ 58 As such, the presumption embodies the notion that the ‘wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order’: Morris v Kanssen [1946] AC 459 at 475. 59 The first and second respondents submit that the presumption of regularity operates in the present case so that it may be presumed that the Council has considered all relevant matters when making its decision to approve the Amended Development Application. Because it is submitted that there is no evidence to the contrary, it must be presumed that the Council considered the issue of impact from traffic noise. 60 In my opinion, reliance on the presumption of regularity in this case is misplaced. As Ipp J explained in Selby v Pennings (1998)

102 LGERA 253, at 261 (with whom Owen J agreed at 282), the presumption applies ‘only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met.’ 61 It was for this reason that Stein JA said in Franklins Limited v Penrith City Council [1999] NSWCA 134 that the challenge to the decision as to whether the council was satisfied of a particular matter was not informed by the presumption of regularity. 62 In the present case, the applicant does not submit that the Council failed to make a decision or that a precondition was not discharged. The submission is that in making the decision, the Council failed to have regard to a particular matter — the noise impact from traffic — and, accordingly, its discretion miscarried. Because the applicant is dependent for success in the proceedings on the Court drawing appropriate inferences, the task it undertakes may be difficult, but the presumption of regularity is not relevant to the Court’s decision.” In Centro Properties v Hurstville, it was held that the presumption of regularity applies only to matters of form rather than matters of substance, such as whether a particular matter required to be considered was in fact considered. GPT Re Limited v Belmorgan Property Development Pty Ltd The complexity of the application of the presumption of regularity is apparent from the judgment of Basten JA (with whom Bell JA and Young CJ in Eq agreed) in the NSW Court of Appeal in GPT Re Limited v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 (GPT v Belmorgan). This case involved a challenge to the validity of a deferred commencement consent granted by the Council. One of the grounds of the challenge was that the Council had failed to consider the provisions of a draft Local Environment Plan (LEP) for the site and changes to the economic and retail environment. Ultimately, the NSW Court of Appeal held that, what the Council had issued was not a consent and hence, it was unnecessary to reach a

concluded view on the claims of a failure to consider. However, Basten JA held at paragraphs [78]–[84] as follows: “Failure to address mandatory considerations: presumption of regularity 78 As noted above at [29]–[37], the terms of Schedule A itself cast significant doubt on the proposition that the Council gave proper consideration to the content of the draft LEP and its relationship to the proposed development, as required by s 79C(1)(a)(ii). Belmorgan, however, supported the conclusion reached by the trial judge, in part on the basis of a presumption of regularity. This gives rise to a nice question as to how any such presumption operates in circumstances where there is evidence before the Court from which an inference could be drawn. The answer to that question may depend upon which party has the burden of persuasion in a particular case and whether such evidence as there is tends to support or undermine the presumption. Further, the presumption may apply differentially in relation to specific facts, such as the existence of an instrument of delegation, or its proper execution, as compared with an amorphous inference, such as the nature of a particular state of satisfaction reached by an officer after reading and considering relevant material. 79 Further, in some circumstances the presumption may be seen to reflect common experience of human affairs, whilst in others it may reflect a particular matter of legal policy. As an example of the former, Griffiths CJ in McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 at 849, quoted Thomas Starkie, A Practical Treatise of the Law of Evidence (10th ed, 1876) at 741 to the following effect: ‘A presumption may be defined to be an inference as to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, it is necessary that there be a previous experience of the connection between the known and inferred facts, of such a nature, that as soon as the

existence of the one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject.’ 80 An example of the operation of policy may be found in Morris v Kanssen [1946] AC 459 at 475, where Lord Simonds noted that ‘[t]he wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order’. After quoting that passage, McHugh JA, in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164C, stated: ‘The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit …’ 81 The presumption of regularity has attained statutory recognition in s 45 of the Interpretation Act 1987 (NSW), which used to be replicated in s 34(3) of the EPA Act (now repealed). Section 45 reads: ‘45 Presumption of validity of certain instruments (1) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an instrument have been complied with and performed.’ 82 Section 45 of the Interpretation Act applies, relevantly, to ‘an environmental planning instrument’: s 45(2)(c). It does not apply to a consent to a development application. That in turn raises a question as to the relationship between the statutory form of the presumption and the general law presumption, a matter

discussed by Ipp J in Selby v Pennings (1999) 102 LGERA 253 at 261–262. It is clear from the discussion in Selby that the presumption may operate differentially in relation to instruments in the form of delegated legislation and other administrative acts, and in criminal proceedings, as opposed to proceedings directly challenging the validity of the administrative act in question: at 262–265 (Ipp J) and 282 (Owen J agreeing). Nevertheless, the view expressed by Ipp J that the presumption applies ‘only to matters of form, rather than of substance’ (at 261) has been applied in relation to a challenge to a planning decision under the EPA Act: see Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257 at [60] (McClellan CJ). His Honour held that, on a challenge to a development consent based upon a failure to have regard to a particular matter, the presumption of regularity was ‘not relevant’: at [62]. Whether that line of authority is consistent with the view of McHugh JA set out at [80] above, and the reasoning of this Court in Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122; 140 LGERA 185 at [31] (Santow JA, Campbell J agreeing) and [77] (McColl JA), addressing the statutory presumption, need not be considered. 83 Although it may do more, it is no doubt correct, as was argued in Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7, that one aspect of such a presumption is to identify the person upon whom lies the burden of persuasion: cf Hill at [52]. Thus a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity. Furthermore, that party must affirmatively satisfy the Court that there has, for example, been a failure to comply with some necessary precondition to the exercise of the power: see Lane Cove Council at [31]. What is less clear from the authorities is what role, if any, the statutory presumption has once there is before the Court some ‘evidence to the contrary’ and the equivalent position under the general law principle. Thus, in the present case, it would be open to the Court to infer that the Council did not give more than passing consideration to an important question, namely non-compliance

with the draft LEP, for two reasons. The first was that the nature and extent of non-compliance was not drawn to their attention in any coherent fashion, so as to allow an appropriate judgment to be made. The second was that consent was granted on a basis which appeared to impose on the applicant the need to give consideration to compliance with the draft LEP. 84 Ultimately it is not necessary to reach a final view in respect of this issue. The conclusion reached above, namely that the Council failed to give a valid consent to the development as proposed in the application is sufficient to dispose of the appeal.” Conclusions The following conclusions may be drawn from GPT v Belmorgan: • The presumption of regularity may operate differently depending on who raises it and upon whom the burden of proof falls in a particular case. • The presumption of regularity may operate differently depending upon the nature of the act or decision in whose aid it is called and whether that is a routine administrative action or one requiring consideration. Whether or not it applies to matters of substance, rather than form, is unclear. • The role of the presumption of regularity is unclear when there is some evidence to the contrary which is simply suggestive rather than conclusive. What is the status of a development consent, which has been granted but whose validity has been questioned or is disputed, however, it has not been declared to be invalid by a court? In Smith v East Elloe Rural District Council [1956] AC 736 (Smith v East Elloe), in the United Kingdom House of Lords, Lord Radcliffe, in relation to a challenge to the validity of a compulsory purchase order, held at p 769–770: “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its

forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, [p 770] it will remain as effective for its ostensible purpose as the most impeccable of orders.” This principle was cited with approval by Talbot J in the NSWLEC in Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436 (Swadling). In Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 (Rosemount), Cole JA (with whom Sheller JA agreed) held at p 88: “It seems to be established that where an administrative act is done without compliance with principles of natural justice the act is valid and operative unless and until it is challenged ‘but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception’ (Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 277 per Aickin J; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 729–730 per Kirby P, the passage in Smith v East Elloe Rural District Council [1956] AC 736 at 769–770 in the speech of Lord Radcliffe is to be understood to the same effect). To similar effect in a wider context is the view expressed by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 365 where his Lordship said: ‘Under our legal system, however, the courts as the judicial arm of government do not act on their own initiative. The jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give it locus standi to initiate proceedings to challenge the validity of the

instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed. It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of the court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings.’ ” This confirms that where an administrative act, such as the grant of a development consent, has been done, that administrative act is presumed to be valid unless or until a legal challenge is made and is upheld by a judgment of a court. Where it is successfully challenged in a court, such administrative act is void from its inception and not just from the time of the court decision. MLC Properties v Camden Council This issue was also addressed by Lloyd J in MLC Properties v Camden Council (1997) 96 LGERA 52 (MLC v Camden). In this case, the Council approved a modification of a development consent for a shopping centre at Narellan to remove a condition for development contributions. Another party challenged the validity of the consent. MLC claimed the consent was invalid on a number of grounds, including that the condition regarding development contributions was invalid and that the Council cannot validly modify an invalid development consent. The Council conceded that the condition requiring development contributions was beyond power and Lloyd J held that it could be severed from the consent. Lloyd J then held at p 59–61 as follows: “The finding that, although Condition 5 is ultra vires, its severance does not effect [sic.] the validity of the development consent, has the consequence that the third issue, namely, the validity of the

modification of the consent by the revocation of the condition, does not arise. Nevertheless, out of deference to the arguments of counsel I should comment briefly upon this issue. Mr Craig submitted that, on the assumption that Condition 5 was not severable, its invalidity meant that the consent was void ab initio. In order for there to be a modification there must first be a consent; that is to say, there must first be a validly granted development consent. The modification cannot make valid something that was invalid and void ab initio. There is simply nothing in law upon which the modification can operate. Mr N A Hemmings QC who appeared with Mr G B Newport for the [p 60] respondents, submitted that unless or until the development consent is declared to be void it must be treated as valid; that the first respondent had a duty to consider the application for modification; and that the court was now presented with the development consent which had been modified and thus stripped of the condition said to be void. Mr Hemmings referred to Swadling v Sutherland Shire Council (1994) 82 LGERA 431, in which Talbot J said: ‘Until a consent is declared invalid all parties, including the council, must treat it as valid.’ … Talbot J went on to hold that a council could modify a development consent under s 102 by deleting a condition said to be void notwithstanding the fact that an appeal under s 97 of the Act is pending in the court in relation to the same matter. Mr Hemmings also relied upon the judgment of McHugh JA in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 326–328. In that case McHugh JA doubted the continuing existence of the artificial distinction between decisions which are void or only voidable.

In Hannan, in discussing the distinction between decisions which are void or voidable, McHugh JA referred to Calvin v Carr [1979] 1 NSWLR 1; [1980] AC 574, in which Lord Wilberforce, giving the Advice of the Board said (at 8; 589–590): ‘A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision. This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships’ opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or Court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.’ McHugh JA then said (in the context of a breach of s 112 of the Environmental Planning and Assessment Act): ‘The point is that, despite a breach of s 112, all the activities carried out in consequence of the decision are effective unless and until the Land and Environment Court or this Court on appeal makes an order pursuant to ss 123 and 124 of the Act.’ Despite a suggestion to the contrary in Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615 at 640, I am thus inclined to the view that unless or until a consent, or a condition of consent, is found to be void, a consent authority may modify the consent under s 102 of the Environmental Planning and Assessment Act by deleting the condition. If the effect of the modification is to remove the cause of the suggested invalidity, [p 61]

then there is no longer any basis upon which it can be said that the consent is void.” Conclusions The following conclusions may be derived from MLC v Camden: • Until a development consent is declared invalid by a court, all parties, including the Council, must treat it as valid. It remains effective and may be acted upon until a court holds otherwise. • Until a development consent or a condition is declared invalid by a court, a consent authority may modify the consent to delete that condition. The second conclusion may not apply where the source of invalidity was a failure to comply with the requirements of Mison v Randwick Municipal Council (1991) 73 LGRA 349, but this is untested (see discussion in relation to severance).

¶62-030 Alternative source of power The existence of an alternative source of power under which an otherwise invalid act or decision may have been undertaken can, in limited circumstances, protect that act or decision from being held to be invalid. Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd In Rosemount, the NSW Court of Appeal heard a challenge to the validity of a State Environmental Planning Policy (SEPP) and a development consent for the Bengalla Coal Project near Muswellbrook. In the appeal, it was argued that the Minister could have granted the development consent under the then power for the Minister to approve prohibited development (under s 100A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as at August 1995) and that the existence of this alternative head of power could maintain the validity of the development consent (but rather a power under SEPP No 45 — Permissibility of Mining). It was

argued that the Minister’s consideration would have been the same under the alternative source of power and hence, the development consent should be valid on the alternative basis. Cole JA (with whom Sheller JA agreed) held at p 85–86: “It is clear law that ‘a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed (Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 per Brennan J). Thus if s 100A confers a source of power sustaining the development consent, it matters not if State Environmental Planning Policy No. 45 be invalid or ineffective notwithstanding it was thought to be the source of power pursuant to which consent was given. That is so provided any conditions necessary for the exercise of the power pursuant to s 100A have been satisfied: see generally Moore v Attorney General (Irish Free State) [1935] AC 484 at 498; R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 and 487 per Williams J; Lockwood v Commonwealth (1954) 90 CLR 177 at 184 per Fullaghar J; Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd [p 86] (1985) 10 FCR 1 at 9–10 per Bowen CJ; Brown v West (1990) 169 CLR 195 at 203 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ.” Cole JA held that the procedural steps preliminary to the exercise of the alternative source of power had been met and hence, the alternative source of power was available to maintain the validity of the consent (p 87–88). Handley JA held otherwise that the validity of the development consent could not be sustained by the alternative source of power because the legal effect of the exercise of the two powers would have been markedly different (p 40–41). VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) In VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under

s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297 (VAW v Scientific Committee), the NSW Court of Appeal heard a challenge to the validity of a decision of the Scientific Committee to list an ecological community, the Kurri Kurri Open Forest, as an endangered ecological community (EEC) under the Threatened Species Conservation Act 1995 (NSW). One of the issues before the Court was whether the Committee’s determination of a nomination application was valid given the extent of difference between the nomination and the determination. This claim was countered by the submission that the Act provided three different mechanisms for listing and that, if the mechanism used was invalid, alternative sources of power were available. Spigelman CJ reviewed the authorities on this issue and held (with Beazley JA agreeing at paragraph [172] and Hodgson at paragraph [214]) at paragraphs [25], [29]–[32], [34], [55] and [58] as follows: “25 In Newcastle Mining (WA) Ltd v The Commonwealth (1997) 190 CLR at 618, Gummow J stated the proposition in the following way: ‘… the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed.’ … 29 In my opinion it is not always helpful to state the issues that arise in such a context in terms of a ‘general principle’ subject to ‘limits’ or ‘exceptions’. The issue is always one of statutory interpretation and is dependent on the particular statutory regime under consideration. 30 This approach is consistent with the proposition advanced by Gummow J in Newcrest Mining to the effect that a mistake as to the source of power does not ‘necessarily’ impugn the validity of an administrative act. 31 His Honour’s focus on the particular statutory regime was manifest in Mercantile Mutual Life Insurance at 437, where his

Honour said: ‘In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decisionmaker specify in writing the source of the authority relied upon? Is such a requirement made directory or mandatory by the law in question? That distinction, as now understood, is discussed in Tasker v Fullwood [1978] 1 NSWLR 20 at 23– 24; TVW Enterprises Ltd v Duffy (No 3) [1985] FCA 382; (1985) 8 FCR 93 at 102, 113–114; Broadbridge v Stammers [1987] 16 FCR 296 at 300 and Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 691–693. If there be no such requirement, or if the requirement be directory in character, it must be very difficult to sustain a case that the propriety of the decision in question is to be judged by that head of power expressly relied upon (if any) to the exclusion of any other enabling authority. Here, none of the heads of power suggested to support the authorisation specify any particular form, nor, indeed, that it be embodied in any written instrument. Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties, such as the present applicants. The position was rather different with the legislation considered in Saatchi & Saatchi (supra).’ 32 What is needed in each case is a careful analysis of the statutory head of power in fact relied upon and the alternative head of power open to be relied upon, to determine the effect of a failure to refer to or rely upon the head of power not relied on. The particular circumstances of Mercantile Mutual Life Insurance raised an issue that could be characterised, as Gummow J did, in

terms of whether the decision-maker was required to state the source of authority. In different contexts analogous issues arise, but not necessarily in that way. … 34 There will be occasions when the alternative head of power cannot properly be seen to be available to the decision-maker who invoked an impermissible head of power. … 55 In the present case no aspect of the procedure or of substance differed in any material respect depending on whether the matter was commenced upon the initiative of the Committee or upon nomination by a third party. Notices were required, and in the event given, to the nominating party, but the process of public inquiry, the conduct of investigations by the Committee, the scope of relevant considerations, the substance of the tests to be applied and the consequences of the listing did not differ in any respect depending on the source of the initial trigger mechanism. There were additional procedural requirements in the case of a nomination, which the Committee observed. There were no requirements relevant to self-initiated proposals which were not observed. … 58 There is no aspect of the scope and purpose of the statute, or of its content, which suggests that an act done in reliance on a process initiated by nomination, if not supported under such process but which could be supported by a process commenced or continued on the initiative of the Committee, should be invalid (Project Blue Sky).” Conclusions The following conclusions may be derived from VAW v Scientific Committee: • The validity of an administrative act is not necessarily impugned by a mistake as to the source of power, as stated by the decision-

maker as having been relied upon. However, that conclusion requires a careful analysis of the statutory regime in question. • To rely upon an alternative source of power requires a comparison between the source of power actually used, and the alternative to answer the following questions: – Is there any difference in procedure? – Is there any difference in substance, including scope of relevant considerations and tests to be applied? – Is there any difference in consequences or results, particularly for third parties? • If such a comparison reveals no differences, then the alternative source of power is likely to be available. The conclusions in VAW v Scientific Committee were agreed to by Santow JA (with Meagher JA and Ipp JA agreeing) in Gorczynski v Perera [2004] NSWCA 70 (see paragraphs [75]–[78]).

¶62-040 The principle of functus officio The principle of functus officio relates to where a power or function has been exercised or performed and hence, is spent and no longer available. Leung v Minister for Immigration and Multicultural Affairs In Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 (Leung), Finkelstein J (with whom Baumont J agreed) outlined the background to the principle of functus officio as follows at p 84: “The origin of the principle of functus officio as that expression is currently employed is to be found in the latter part of the last century in England when it was decided that a final decision of a court could not be reopened. The reason given was that the power to reopen a dispute had been transferred to the court of appeal: …

A similar rule applies to the exercise of a statutory power or function but for a different reason. If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Blacks Law Dictionary (5th ed, 1979) ‘functus officio’ is defined as ‘a task performed’ and it is applied to ‘an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue’. It is for this reason that where it is sought to reconsider the exercise of a statutory power or the performance of a statutory function it is necessary to find the power to do so in the statute. That power may be express or it may exist by way of implication.” Finkelstein J then proceeded to consider in detail whether a power for reconsideration is available to an invalid decision and concluded at p 88 that to decide again a matter where an invalid decision has been made is not a reconsideration as there was no valid original decision. In such circumstances, functus officio has no application: see also the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (Bhardwaj). Conclusions The following conclusions may be derived from Leung: • Where a statute confers a power or function on an authority, once that power has been exercised or the function performed, the purpose for its creation has been fulfilled and, as a result, the power or function is exhausted (this is the principle of functus officio). • The principle of functus officio applies unless the statute confers a power for reconsideration, either expressly or impliedly. • Where the initial exercise of a power or function is invalid, the power or function may be exercised or performed again as this does not involve a reconsideration (as there was no valid original decision).

Finkelstein J noted in Leung that the power to reconsider may be conferred by statute. Of relevance in New South Wales is the Interpretation Act 1987 (NSW) (Interpretation Act), which provides as follows: “5. Application of Act … (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. … 48. Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires. (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.” An Environmental Planning Instrument (EPI) is an “instrument” as defined in s 3(1) of the Interpretation Act and is described in relation to the consequences of invalidity of a condition and severance. Talbot J in Wechsler v Auburn Council (1997) 130 LGERA 134 held that a development consent was an “instrument” for the purposes of that Act. Richmond v Minister for Urban Affairs and Planning In Richmond v Minister for Urban Affairs and Planning [2000] NSWLEC 23 (Richmond v Minister), Sheahan J in the NSWLEC held that the EPA Act demonstrates a contrary intention as provided in s 5(2) of the Interpretation Act in relation to the process of preparing an EPI and hence, s 48 of the Interpretation Act does not apply and the principle of functus officio does apply (see paragraph [139]). By analogy, where in relation to a development application (DA) a

consent authority has made a clear choice in the process of determination and with the determination itself, it is also likely to be functus officio. However, where there has not been a clear choice or decision, there is nothing to preclude reconsideration, as was held in Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638 (Pongrass) by Jagot J in the NSWLEC, particularly where there had been no external communication of the decision (Pongrass is discussed in detail in Chapter ¶15 in relation to the preparation and making of LEPs). Hence, the application of the principle of functus officio to decision points within the process of consideration of a DA and prior to its determination and communication is doubtful, particularly where such decision points within the process have not been externally communicated for the reasons outlined in Pongrass.

¶62-050 Estoppel Estoppel is a doctrine which provides remedies to a party which has relied, to its detriment, on the representations of another. It applies in both common law and equity. At common law, estoppel operates as a result of evidence to prevent the admission of evidence from not being bound by representations made, while estoppel in equity may give rise to an equitable right to relief. This is not the place for other than a cursory examination of estoppel as it applies to planning law.1 Some caution needs to be applied to the incorporation of principles or rules of private law into public statutory codes, such as planning law. Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment In considering whether the doctrine of election between inconsistent rights is incorporated in the planning law, Lord Scarman in the UK House of Lords in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1AC 132; [1984] 2 All ER 358 held at p 363:

“Planning control is the creature of statute. It is an imposition in the public interest of restrictions on private rights of ownership of land. The public character of the law relating to planning controls has been recognised by the House in Newbury DC v Secretary of State for the Environment [1980] 1 All ER 731, [1981] AC 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. Planning law, though a comprehensive code imposed in the public interest, is, of course, based on land law. Where the code is silent or ambiguous, resort to the principles of private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.” Hornsby Shire Council v Vitone Developments Pty Ltd In Hornsby Shire Council v Vitone Developments Pty Ltd [2003] NSWLEC 272 (Vitone), McClellan CJ in the NSWLEC heard an application by the Council seeking to have one of its own development consents declared invalid. McClellan CJ considered whether the Council is estopped from seeking a declaration that its own consent was void. McClellan CJ held at paragraphs [35]–[47] as follows: “Estoppel 35 The Council submits that because in the circumstances of this case s 78A(8)(b) requires a species impact statement to accompany the development application, without which neither the application nor any decision made in relation to it is valid, it cannot be estopped from challenging the validity of the consent

which it granted. The council relies on the decision of Spigelman CJ in Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSLWR 55, where his Honour said that the requirement for a species impact statement plays ‘such a significant role in the legislative scheme’ that it is an essential pre-condition to any valid decision by the Council and that accordingly it is appropriately described as a jurisdictional fact (at 73). 36 The respondent submits that the Council is estopped from challenging the validity of the consent which the Council itself granted. 37 In Brickworks Limited v The Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568 the Council put in issue whether it had granted a development consent. Windeyer J discussed the difficulties with the evidence and said: ‘It cannot be inferred from the absence of a minute that consent had not then or at any time been refused. I do not understand how, when afterwards the Council said implicitly that the mining on Portion 4 was being done with its consent, and still later said expressly that it had consented, it could expect to obtain relief in equity on the basis that it had never consented at any time. … Whether or not a person consented to something is a question of fact. It may be proved that he did by proving an express consent or by showing conduct evidencing consent: Booton v Clayton (1948) 48 SR (NSW) 336. But I do not think a person can, by words and conduct, state that he has consented and is consenting, and then deny that he meant what he said and did.’ 38 His Honour expressed the following conclusions in the circumstances of that case: ‘The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems

to me to arise. … 39 The availability of an estoppel in planning law has been the subject of discussion in a number of cases since Brickworks. It is important to emphasise the distinction which Windeyer J made between a representation by a public authority that it had made a decision, a representation of fact, and a representation by the authority as to the existence of some other fact, typically whether existing use rights exist or as to a matter of law. 40 In Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391 the respondent had sought approval to open a gravel quarry. It asserted in its application that the development was not designated and did not require an environmental impact statement. The Council granted consent but later formed the opinion that it had erroneously done so since the proposed use was in fact designated development. It was submitted that the Council was estopped from contending that it did not grant a consent effective in law. Perrignon J said: ‘In the present case I am of the opinion that no estoppel arises to prevent the council from exercising the statutory duties and discretions which are imposed upon it by the Environmental Planning and Assessment Act and which it has not yet exercised. I think that the general principle which was enunciated in the Southend-on-Sea case, and which is set out above, should be applied.’ 41 Perrignon J also emphasised that in his opinion the public interest would override any estoppel which might otherwise have arisen. 42 Perrignon J had occasion again to consider the application of the doctrine of estoppel in Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200. That case involved a purported grant of consent under delegation to use two lots for exhibition homes. As it happened the proposed use was prohibited. His Honour held that a Council could not be estopped from asserting that a purported consent could not operate to authorise a use which was in fact prohibited. See F N

Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114 at 116–117; Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279 at 286–287; Jurkovic v City of Port Adelaide (1979) 41 LGRA 71 at 78–79; Canterbury Municipal Council v Perri (1982) 47 LGRA 111; Trimboli v Penrith City Council (1981) 48 LGRA 323 at 333–337 and Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391 at 396–398. 43 The approach adopted by Perrignon J was considered and applied by Stein J in Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 see 131. 44 The problem was recently considered by the Court of Appeal in Hawkesbury City Council & Anor v Sammut (2002) 119 LGRA 171. In that case the respondent sought consent from the Council to erect a shed on his land in order to operate a tractor repair business. The Council purported to grant consent and the shed was constructed. Both the Council and a neighbour commenced proceedings in the Land and Environment Court seeking declarations as to the invalidity of the consent. The Court of Appeal, following the reasoning in Egan v Hawkesbury City Council (1993) 79 LGERA 321, held that if the tractor repair business could be fairly categorised as an ‘industry’ then it was prohibited under the Local Environmental Plan and it was irrelevant that the use could also have been categorised under the separate permissible category of ‘rural industry’. Mr Sammut contended that the Council was estopped from challenging its own consent, relying on the judgment of Windeyer J in Brickworks. 45 Mason P considered the submission and, although it was not necessary to determine the matter as proceedings had also been commenced by a neighbour of the respondent, referred to Brickworks and said: ‘Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably establishing a fact, can never be challenged at the suit of the administrator who did it: see generally Minister for Immigration, Local

Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211–214 per Gummow J. In my view Stein J, as he then was, was correct to decide that the public interest in the carrying out of statutory duties requires that a council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid: Holidays-AFloat Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127.’ 46 There is a public interest in ensuring that decisions are made in accordance with the law but there is also a public interest in achieving certainty in the planning process. It is for this reason that s 104A was provided in the Environmental Planning and Assessment Act. That section, following amendment, now finds expression in s 101 of the Act. It seems to me that if a council has stated that it has carried out the necessary process and has made a decision to grant a consent which is within its jurisdiction to make, it may, as Windeyer J concluded, be estopped from denying that a consent has been granted. 47 In the present case the Council submits that the development application was not accompanied by the required species impact statement and accordingly the Council, although purporting to exercise its power in relation to the application, could not do so. In these circumstances the Council does not resile from the fact that it made a decision but submits that it was a decision which it had no lawful capacity to make. If the Council’s submission is correct no estoppel can arise.” Conclusion The following conclusion may be derived from Vitone: • No estoppel arises to prevent a consent authority from exercising its statutory duties and discretions under the EPA Act in accordance with the general principle in Southend-On-Sea Corporation v Hodgson, that estoppel by representation cannot prevent the performance of a statutory duty or exercise of a statutory discretion. • Thus, a consent authority is not estopped from challenging the

validity of a development consent granted by it. A consent authority may assert that a consent granted by it is beyond power. This may be on the basis that no estoppel arises, or alternatively, that the public interest in the carrying out of its statutory duties overrides any estoppel. • An estoppel may arise to prevent a public authority denying it made a representation of fact, such as that it had made a decision to grant consent, or that it has carried out the necessary process. However, an estoppel may not arise to prevent a public authority denying a representation of some other fact, such as whether existing use rights exist or whether consent is required or as to a matter of law. Footnotes 1

See Thomson, J, 1988, “Estoppel by Representation in Administrative Law”, Federal Law Review, Volume 26, p 83–113; and Weeks, G, 2010, “Estoppel and Public Authorities: Examining the Case for an Equitable Remedy”, University of New South Wales Faculty of Law, Research Series, No 70.

¶62-060 Principles regarding the presumption of regularity, functus officio, alternative source of power and estoppel and development consents The key principles derived from the discussion on the presumption of regularity, functus officio, alternative source of power and estoppel, as they relate to development consents, are as follows: Principle 1: The presumption of regularity provides that, where a public official or authority, such as a consent authority, purports to exercise a power or to do an act in the course of his/her/its duties, such as granting a development consent, a presumption arises that all

conditions necessary to the exercise of that power, or doing that act have been fulfilled. Like any presumption, it applies unless the contrary is demonstrated, effectively placing the onus of proof of invalidity on a challenger and not the public authority whose decision is being challenged. (Minister for Natural Resources v NSW Aboriginal Land Council, Ashfield v RTA). Principle 2: The following are features of the presumption of regularity: • The presumption of regularity operates not just to identify where the onus of proof lies. It is a presumption of fact, establishing that the decision is valid unless the contrary is established (Hill v Woollahra). • The presumption of regularity may operate differently depending on who raises it and upon whom the burden of proof falls in a particular case (GPT v Belmorgan). • The presumption of regularity may operate differently depending upon the nature of the act or decision in whose aid it is called and whether that act is a routine administrative action or one requiring consideration. Whether or not it applies to matters of substance, rather than form, is unclear (GPT v Belmorgan). • Section 45 of the Interpretation Act applies as a statutory presumption of regularity for compliance with all conditions precedent and preliminary steps in the making of an EPI, but the statutory presumption does not apply to a development consent (GPT v Belmorgan). • The role of the presumption of regularity is unclear when there is some evidence to the contrary which is simply suggestive rather than conclusive (GPT v Belmorgan). Principle 3: Until a development consent is declared invalid by a court, all parties, including the Council, must treat it as valid. It remains effective and may be acted upon until a court holds otherwise.

Until a development consent or a condition of that consent is declared invalid by a court, a consent authority may modify the consent to delete that condition (Smith v East Elloe, Swadling, Rosemount, MLC v Camden). Principle 4: The validity of an administrative act is not necessarily impugned by a mistake as to the source of power as stated by the decision-maker as having been relied upon. However, that conclusion requires a careful analysis of the statutory regime in question. To rely upon an alternative source of power requires a comparison between the source of power actually used and the alternative to answer the following questions: • Is there any difference in procedure? • Is there any difference in substance, including scope of relevant considerations and tests to be applied? • Is there any difference in consequences or results, particularly for third parties? If such a comparison reveals no differences, then the alternative source of power is likely to be available (Rosemount, VAW v Scientific Committee). Principle 5: Where a statute confers a power or function on an authority, once that power has been exercised or the function performed, the purpose for its creation has been fulfilled and, as a result, the power or function is exhausted (this is the principle of functus officio). The principle of functus officio applies unless the statute confers a power for reconsideration either expressly or impliedly (such as s 48 of the Interpretation Act). Where the initial exercise of a power or function is invalid, the power or function may be exercised or performed again as this does not involve a reconsideration (as there was no valid original decision) (Leung, Bhardwaj). Principle 6: The provisions of s 48 of the Interpretation Act do not

apply to the process of preparing an EPI and hence, the principle of functus officio applies to the making of an EPI (Richmond v Minister). The principle of functus officio may not apply unless there has been a clear decision point which has been externally communicated (Pongrass). Principle 7: No estoppel arises to prevent a consent authority from exercising its statutory duties and declarations under the EPA Act in accordance with the general principle in Southend-On-Sea Corporation v Hodgson that estoppel by representation cannot prevent the performance of a statutory duty or exercise of a statutory discretion. Thus, a consent authority is not estopped from challenging the validity of a development consent granted by it. A consent authority may assert that a consent granted by it is beyond power. This may be on the basis that no estoppel arises, or alternatively, that the public interest in the carrying out of its statutory duties overrides any estoppel. An estoppel may arise to prevent a public authority denying it made a representation of fact, such as that it had made a decision to grant consent, or that it has carried out the necessary process. However, an estoppel may not arise to prevent a public authority denying a representation of some other fact, such as whether existing use rights exist or whether consent is required or as to a matter of law (Vitone).

RELATIONSHIP BETWEEN A DEVELOPMENT CONSENT AND OTHER APPROVALS ¶63-010 Additional approvals A proposal which requires development consent under planning legislation may also require additional approvals under other legislation. Having obtained a development consent, what effect does that development consent have on the requirements for additional approvals?

Further, what is the effect of a consent authority’s consideration and determination on an issue in a development application (DA) on additional approvals where the issues raised are the same as were considered in the DA process?

¶63-020 I.D.A. Safe Constructions Pty Ltd v Woollahra Municipal Council In I.D.A. Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) LGRA 62 (I.D.A. Safe Constructions), McClelland CJ in the Land and Environment Court of NSW (NSWLEC) heard merit appeals in relation to two DAs for the same residential flat building proposal but to relating differently-sized site areas. The rationale for the two DAs was that in one DA, the site area did not comply with a requirement under the then Sch 7 of the Local Government Act 1919 (NSW) (LG Act 1919) as to the proportion of the total area of a site which could be occupied by a residential flat building, while the second DA did comply due to it relating to a larger site area. McClelland CJ held at p 69 as follows: “These matters were considered as recently as 17th October, 1980, by Wootten J. in Grace Bros Pty Ltd v Council of the Municipality of Willoughby (1980) 44 L. G. R. A. 400. After quoting both s 342v(1A) and s 314 he stated: ‘In short, all that a (development) consent does is to remove the hurdle to a development created by s 342U(4). It does not and does not purport to remove hurdles created by other sections of the Local Government Act or by various other Acts, under which consents must be obtained before particular developments are carried out.’ Accordingly, his Honour concluded, a council, in considering a development application, is not expected to concern itself with all other requirements of the Act, including in particular, Pt XI, Building Regulation. By the operation of s 39 of the Land and Environment Court Act the same considerations apply to this Court. I have therefore

excluded schedule 7 from my deliberations in deciding this development appeal.” Conclusion The following conclusion may be derived from I.D.A. Safe Constructions and Grace Bros Pty Ltd v Council of the Municipality of Willoughby (1980) 44 LGRA 400 (Grace Bros v Willoughby): • The granting of a development consent operates to remove one hurdle to a development. It does not purport to remove hurdles created by other legislation requiring approvals before a development may be carried out. • In considering a DA, the consent authority is not required to consider requirements contained in other legislation. Similarly, where a development consent has been granted for a proposal, the existence of that development consent does not require that approval be granted under other legislation, even if the approval body under that other legislation was the original consent authority.

¶63-030 Hadoat Pty Ltd & O R Ugo Pty Ltd v Bathurst City Council In Hadoat Pty Ltd & O R Ugo Pty Ltd v Bathurst City Council (Unreported decision of Talbot J in the NSWLEC, No 20063 of 1995, delivered on 31 July 1995) (Hadoat), Talbot J heard a question of law on an appeal against Council’s refusal of a building application (BA) under the then LG Act 1919 where Council had previously granted a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The applicant argued that, as the same matters were in issue in the BA as in the DA, Council was obliged to approve the BA, given that it had granted development consent. After referring to Grace Bros v Willoughby, Talbot J held: “There is nothing in either the LG Act or the EPA Act which suggests that they are cognate or that a determination under one is to have precedence over a determination under the other.

Although the analogy is not direct, it is useful to compare the separate and distinct consideration that must take place in relation to the use of premises for the sale of liquor. The consideration of such a proposal under the planning legislation is a separate and distinct consideration to the one which takes place under the liquor administration legislation. There can be no suggestion that a proponent in such a case would not require both approvals or that either authority is bound to take into account the consideration, or follow the determination, by the other. The situation does not change simply because the determining authority under the EPA Act and the LG Act happens to be the same. If the legislature had intended that a determination under the EPA Act could have the effect of excluding reconsideration under the LG Act, then it would have been reasonable to expect an express provision to that effect. … There is nothing in either legislative scheme which would preclude council from changing its mind upon the receipt of submissions in response to a notice under s 114, irrespective of whether the earlier notice had been given in respect of a development application. The problems that have arisen in this case might have been avoided if a provision in like terms to s 114 had been inserted in the EPA Act in 1994 when the LG Act came into operation. Nevertheless that is not the case and the council is required to carry out a fresh assessment taking into account the matters referred to in Reg 12 and s 118(2). Where the second determination is inconsistent with the former, then the applicant has the recourse of an appeal to this Court. If the council acts capriciously or unreasonably in the making of the second determination refusing the application, then that might be exceptional circumstances which could attract an order for costs. Each case, in that respect, must be decided on its merits. In the circumstances, I determine that the respondent council was required to comply with s 114 of the LG Act prior to determination

of the application for approval to erect notwithstanding that development consent was granted on 25 March 1994. Furthermore, the determination of the council to refuse the application for an approval to erect the building was not contrary to law in the circumstances, notwithstanding that development consent had previously been granted in respect of the same subject matter after a consideration of submissions made pursuant to s 118 relating to issue considered previously in the determination of the development application.” Conclusions The following conclusions may be derived from Hadoat: • Unless the statute so provides, there is nothing to suggest that the grant of a development consent has precedence over the decision to grant an approval under other legislation. • Often the decision to grant a development consent and a decision to grant an approval under other legislation may involve different heads of consideration. • There is nothing to prevent an authority from changing its mind between the DA process under the EPA Act and the process of obtaining approvals under other legislation.

¶63-040 Statutes may impact upon the relationship between planning legislation and other legislation In certain instances, the statutes themselves may impact upon the relationship between the planning legislation and other legislation. Examples of provisions altering the relationship between a development consent and approvals under other legislation found within the EPA Act relate to consents for integrated development and State Significant Development. Examples of such provisions in other legislation relate to the need for licences under the Threatened Species Conservation Act 1995 (NSW) and the National Parks and Wildlife Act 1974 (NSW) in relation to endangered species, where a development consent has been granted.

¶63-050 Principles regarding the relationship between development consent and approvals under other legislation The key principles derived from the discussion on the relationship between a development consent and approvals under other legislation are as follows: Principle 1: The granting of a development consent operates to remove one hurdle to a development. It does not purport to remove hurdles created by other legislation requiring approvals before a development may be carried out. In considering a DA, the consent authority is not required to consider requirements contained in other legislation (Grace Bros v Willoughby, I.D.A Safe Constructions). Principle 2: Unless the statute so provides, there is nothing to suggest that the grant of a development consent has precedence over the decision to grant an approval under other legislation. Often the decision to grant a development consent and a decision to grant an approval under other legislation may involve different heads of consideration. There is nothing to prevent an authority from changing its mind between the DA process under the EPA Act and the process of obtaining approvals under other legislation (Hadoat).

OPERATION OF A DEVELOPMENT CONSENT AND APPEAL AND REVIEW RIGHTS ¶64-010 When does a development consent become effective? Where a consent authority grants a development consent, s 83(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides that the consent becomes effective and operates from:

• the date endorsed on the notice of determination given to the applicant, or • (if it relates to a development application (DA) for designated development, where an objection has been made) after the expiry of 28 days from the date endorsed on the notice of determination, if there is a right of an objector for a merit appeal (not if there is no right of merit appeal following a public hearing into a DA for designated development by the Planning Assessment Commission). The 28-day period is the time within which objector may lodge a merit appeal under s 98. Where a development consent has been granted and is the subject of either merit appeal by the applicant under s 97 or by an objector under s 98, the consent ceases to be, or does not become, effective and only becomes effective and operates from the date of the determination of the merit appeal, unless the appeal results in a refusal of development consent. If a development consent is granted but is then subject to an internal review under s 82A or a merit appeal under s 97 or s 98, with the result that the consent is refused, the consent is void and taken never to have been granted (s 82). If upon appeal under s 97, development consent is granted, having previously been refused, that consent is effective and operates from the date of that appeal decision (s 83(4)). Curiously, the suspension of the operations and effectiveness of a development consent under s 83(2) and (3) does not apply to a consent for State significant development (SSD) (s 83(4A)). Hence, work on such a consent may commence in this period, an action which could prejudice any merit appeal. By a consent becoming effective and operating from a date, s 83 is identifying the date upon which a person having the benefits of a consent can proceed to act upon the consent.

¶64-020 Rights of review and merit appeal The rights of review and merit appeal, as well as the effects of

different types of consents, have been considered in relation to different types of DAs. Reference should be made to that consideration for these subjects. However, one issue of importance is identifying who can exercise a right of review or appeal. The question of “who is an objector?” was discussed in relation to DAs. Section 97(1) provides for a right of merit appeal to “an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application”. Thus, s 97 provides that the person with the right of appeal is the applicant for the DA.

¶64-030 Betohuwisa Investments Pty Ltd v Kiama Municipal Council In Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223 (Betohuwisa), Craig J in the Land and Environment Court of NSW (NSWLEC) heard a motion to dismiss a merit appeal on the grounds that the appellant was not the applicant within the meaning of s 97. In 2009, Old Kiama Wharf Company Pty Ltd (OKW) lodged a DA with Council to make improvements to a car parking area near a heritage building known as the “Cargo Shed”. At the time, OKW ran a restaurant in the building as lessee. The DA was refused by Council. OKW transferred its lease and all its rights to Betohuwisa Investments Pty Ltd, a company unrelated to OKW, with no common directors or shareholders. Betohuwisa instituted a merit appeal against Council’s refusal of the DA as successor in title and assignee of all rights from OKW. Craig J held at paragraphs [35], [42]–[43] and [49]–[54]: “35 Thus, in the context of the present matter, the person or entity entitled to appeal is that person or entity who made the application to the Council, and, as in the case of OKW Company, did so with the consent of the owner of the land. Ultimately, the question to be addressed is whether Betohuwisa meets the description of the applicant under s 97, thereby rendering its present appeal competent.

… 42 The Council accepts, in my view correctly, that an applicant for the purpose of s 97 of the EPA Act is not confined to the person or entity who signed the form of development application lodged with a consent authority. However, it submits that the class of persons to whom the broader notion of ‘applicant’ extends is the principal or principals of the person or entity on whose behalf the application is made. Thus, where a development application is lodged by a town planner, architect, engineer or construction company with no beneficial interest in the overall development other than receipt of a fee for service or work undertaken, the Council recognises that if its determination of a development application is one that leads to dissatisfaction with the decision, the principal of the consultant applicant could appropriately lodge an appeal pursuant to s 97. The lodging of development applications with Councils by agents of the kind that I have described is not uncommon. 43 Substitution of a principal for an agent who has lodged a development application has been sanctioned by this Court (Miller v Sutherland Shire Council [2008] NSWLEC 158 at [20]). As the actions of an agent, acting within the scope of that agent’s authority, are generally taken to be the actions of the principal, I see no reason why the principal should not be entitled to commence an appeal under s 97, notwithstanding that it was the agent of that principal who lodged the relevant development application with a consent authority. … 49 This, so it seems to me, is such a case. Where the EPA Act provides an entitlement to take any step consequent upon the lodgement of a development application, it identifies the person able to take that step. In the case of a development application that has been refused, it is the applicant for that consent who is entitled to appeal. Reference to ‘the applicant’ in s 97 is clearly a reference to the person who made the application pursuant to s 78A in accordance with the Regulation, as the latter section

requires. As I have earlier recorded, a different provision is made where modification of a consent is sought. Had the legislature intended to confer a right of appeal upon a successor in title to the original applicant, following determination to refuse a development application, or a person otherwise having the ‘benefit’ of the development application, it would have been a simple matter for the legislature so to provide. As earlier explained, the provisions of the Integrated Planning Act (Qld) provides an appropriate example by which such an intention might be made apparent. 50 Apart from the absence of any expressed right to appeal by a person who, subsequent to refusal of a development application, acquires ‘the benefit’ of that application, there are contextual considerations that favour the limitation of the right to the original applicant or that applicant’s principal at the time of which the application was made. By s 78A(1) the right to make an application is expressed to be subject to the Regulation. The relevant terms of the Regulation, earlier recited, make the personal nature of the application clear. 51 Secondly, prior to the determination of the application, the applicant may seek to amend it (cl 55 of the Regulation). In the event of any assignment by the original applicant of an interest in the application prior to its determination, cl 55 of the Regulation provides a mechanism by which substitution can be achieved (Miller v Sutherland Shire Council at [17] and [20]). 52 Thirdly, the potentially valuable ‘right’ consequent upon the grant of development consent is recognised in the EPA Act as a right extending beyond the original applicant for consent. That recognition is manifest, for example, in the provisions of s 96 of the EPA Act, addressing the power of modification of a development consent. In contrast, refusal of a development application creates no ‘right’ in the same sense. Refusal of an application results only in an entitlement to have the Court exercise its administrative review function by determining the same development application for itself. Nothing in the Act prevents the assignee from lodging the identical application with

the consent authority for the same purpose so that no ‘right’ is lost by denying to that post-determination assignee the entitlement to appeal. 53 In making the observations that I have in the preceding paragraph, I do not overlook the fact that refusal of a development application is not the only basis upon which an appeal pursuant to s 97 of the EPA Act may be instituted. An applicant for development consent may be ‘dissatisfied with the determination of a consent authority’ by reason of a condition that has been imposed upon the grant of development consent, thereby founding a basis for appeal. However, the potentially valuable ‘right’ created by the grant of consent ceases to be an effective ‘right’ upon the institution of an appeal and remains ineffective unless and until the appeal is upheld: subsections (2) and (3) of s 83, EPA Act. 54 Once again it must be observed that had the legislature intended to extend the right of appeal provided by s 97 to a person entitled to act on a development consent that has been granted, it could easily have done so in terms similar to those found in s 96(1). The fact that it did not do so supports my opinion that the right to appeal afforded by s 97 is restricted to the ‘person’ making the development application or, if made in an agency capacity, then that person’s principal.” Additionally, Craig J held that, if an appeal had been properly instituted by OKW, then a successor in title may well have a proper basis for joinder1 in the appeal and, in effect, to take over the conduct of an appeal (paragraph [65]). Conclusions The following conclusions may be derived from Betohuwisa: • The person or entity entitled to lodge a merit appeal under s 97 is that person or entity who made the DA. However, the notion of the applicant extends to the principal of the person or entity on whose behalf the DA was lodged, and so a principal may commence an appeal where an agent lodged the DA. But the

right to lodge an appeal does not extend to other persons with a benefit in the DA. Such persons can of course lodge the same DA again and in the event of refusal they may appeal. • If a merit appeal has been instituted by the applicant, a successor in title to the applicant may well have a proper basis for joinder in the appeal and, in effect, take over the conduct of the appeal. The time limit for instituting a merit appeal is 12 months from the date on which the applicant received notice of the determination, or the date on which the applicant received notice of the determination, or the date on which an undetermined application is deemed to have been refused under s 82(1) (s 97(1)). Further, the right to institute a merit appeal under s 97 requires that the applicant is “dissatisfied”. A similar requirement for dissatisfaction applies to the right of appeal in relation to an application to modify a development consent (now under s 96 and prior to the introduction of the Environmental Planning and Assessment Amendment Act 1997 (NSW) under s 102). Footnotes 1

CCH comment: “Joinder” means the inclusion or joining of a person as a party to legal proceedings in a court which have already commenced, with the same rights as any other party to those proceedings.

¶64-040 Arncliffe Development Pty Ltd v Rockdale City Council In Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297 (Arncliffe Development), Pain J in the NSWLEC heard an appeal in relation to an application to modify a consent relating to s 94 development contributions. The company had paid the monies in

question. Pain J held at paragraphs [8]–[12] as follows: “8. The Council argued that as condition 16 has been fully complied with, in that all the monies payable pursuant to it were paid on or before 24 March 2003, no application can be approved to modify a condition which has been fully discharged. Reliance was placed on the decision of Hardie J in Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395 and obiter comments by Bannon J in Waters v Hurstville City Council (1991) 77 LGRA 11. I note that in Bryson the execution of a deed required as a condition of development consent was held to mean that the Applicant was not dissatisfied in the legal sense when the deed was later challenged and could not appeal. 9. The Applicant argued that the fact money had been paid pursuant to condition 16 was not fatal to their application. The decision of Pearlman J in Minaway v Rockdale City Council (Pearlman J, NSWLEC, 26 April 1996, unreported) and to a lesser extent, Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176 were relied on in support of that submission. Finding on s 96(6) of the EPA Act 10. I note the Class 1 appeal by the Applicant is made pursuant to s 96(6) of the EPA Act which provides that: ‘an Applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application [for modification] within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.’ 11. I do not accept the Council’s arguments that the claim pursuant to s 96(6) is incompetent because all of the money paid pursuant to condition 16 has been paid by the Applicant. The context of the decision in Bryson is different to that before me and I do not consider I should apply it here in preference to the reasoning of Pearlman J in Minaway. I agree with Pearlman J that the requirements for dissatisfaction in s 96(6) means that legal

dissatisfaction only is required. In Minaway, Pearlman J considered s 102(5) of the EPA Act which is a predecessor, in identical terms, to s 96(6). Her Honour found that the two conditions precedent under s 102(5) were satisfied in that there was an Applicant who had applied for a modification of development consent and was dissatisfied with the determination of the application because the Council refused the application. Her Honour held the appeal was competent. Separately to this reasoning her Honour did consider that there was another reason to conclude that the appeal was competent, which related to the terms of the conditions of development consent in question in that case. In that case the obligation to pay was ongoing and contemplated an adjustment of amounts to be paid pursuant to s 94 over time. The condition in this case is different in that all s 94 contributions payments required under condition 16 have been made. 12. As in Minaway, in this case there is an Applicant who is dissatisfied with the determination of the application by the Council. That dissatisfaction has been made plain to the Council in correspondence before the final payment was made on 24 March 2003 although the necessity for such protest to satisfy s 96(6) is debatable. I do not think that because the amount in condition 16 has been paid, the Applicant is prevented from mounting this appeal. I note that the facts in Minaway were different to those before me in that the condition in question allowed for ongoing payments in Minaway so that not all payments had been completely made. I do not consider however that this is a material factual difference. In other words, the Applicant is successful in its arguments in relation to s 96(6).”

¶64-050 Principles regarding the operation of a development consent and appeal and review rights The key principles derived from the discussion on the operation of a development consent and appeal and review rights are as follows: Principle 1: A development consent becomes effective and operates

from the date endorsed on the notice of determination, except in the case of designated development where such a consent becomes effective and operates after the expiry of 28 days from the date endorsed on the notice of determination (s 83(1) of EPA Act). Principle 2: Where a development consent has been granted and is the subject of a merit appeal by the applicant or an objector (in the case of designated development), the consent ceases to be or does not become effective and operate, and only becomes effective and operates from the date of the determination of a merit appeal, as a result of which the consent is granted (s 83(1) of EPA Act). If a development consent is subject to an internal review on a merit appeal and, as a result, consent is refused, the consent is void and is taken to have never been granted (s 83(3) of EPA Act). Where a consent was refused by the consent authority, but was subsequently granted on appeal, the consent becomes effective and operates from the date of that appeal decision (s 83(4) of EPA Act). But a consent for SSD subject to a merit appeal is not suspended pending the determination of that appeal (s 83(4A) of EPA Act). Principle 3: The person or entity entitled to lodge a merit appeal under s 97 is that person or entity who made the DA. However, the notice of the applicant extends to the principal of the person or entity on whose behalf the DA was lodged, and so a principal may commence an appeal where an agent lodged the DA. But the right to lodge an appeal does not extend to other persons with a benefit in the DA. Such persons can of course lodge the same DA again and, in the event of refusal, they may appeal (Betohuwisa). Principle 4: If a merit appeal has been instituted by the applicant, a successor in title to the applicant may well have a proper basis for joinder in the appeal and, in effect, take over the conduct of the appeal (Betohuwisa). Principle 5: An applicant seeking to institute a merit appeal in relation to a DA is required to be dissatisfied with the determination of the consent authority. This requires only legal dissatisfaction. Acting upon the consent does not prevent an applicant from being dissatisfied, nor does the execution of a deed between the applicant and council

(Arncliffe Development).

LAPSING OF A DEVELOPMENT CONSENT ¶65-010 Applicant is entitled to do nothing to act upon a consent A development consent operates only to remove a hurdle to a development. It therefore removes a prohibition to that development being carried out. However, it does not require that development to be carried out, nor does it impose any obligation upon the applicant or any person with the benefit of a development consent to carry out the development. Having obtained a development consent, an applicant is entitled to do nothing to act upon the consent. This may be because the applicant no longer wishes to proceed, it may be because it is no longer economically feasible, it may be that the conditions imposed by the consent authority are unacceptable (either with or without a merit appeal), or it may be that the applicant no longer has lawful access to the land (the subject of the consent). It is important to recognise that there is no compulsion or requirement to act upon a development consent, despite the fact it has been granted and is effective and operational. However, there is a consequence if the holder of a development consent does not act upon that consent. That consequence is that the consent may lapse if specified work relating to the consent is not commenced within a required time period. The lapsing provisions are contained in s 95 and s 95A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Prior to the enactment of the EPA Act, the Local Government Act 1919 (NSW) (LG Act 1919) did not contain in Pt 12A any provisions for the lapsing of development consents issued under prescribed planning scheme ordinances. However, the provisions of planning scheme ordinances provided for lapsing. Thus, cl 41(5) of the County of Cumberland Planning Scheme Ordinance (County Scheme)1

provided as follows: “41.(5) Any consent given under this clause to the carrying out of development in a Living Area Zone shall be void if the development to which it refers is not substantially commenced within two years after the date of the consent: Provided that the responsible authority may, if good cause be shown, grant annual extensions or renewals of such consent beyond such period up to a further period of three years.” Interestingly, the lapsing provisions only applied to the development consents in one zone, the Living Area Zone. In all other zones, development consents had no lapsing period at all. The event required to avoid lapsing was for the development under a consent to be “substantially commenced” within a two-year period with a capacity for annual extensions for up to a further three years in planning schemes for individual Local Government Areas. These provisions varied between planning schemes. Thus, the Lane Cove Planning Scheme Ordinance provided that all consent (not just those in residential areas) lapsed within one year subject to annual extensions for a further three years unless the development was “substantially commenced” (cl 37(3)), while under the Blue Mountains Planning Scheme Ordinance, the lapsing period was two years with extensions of up to a further two years (cl 28(3)). For applications for interim development permission under an Interim Development Order (IDO), the 1970 Standard or Model Provisions for IDOs adopted under s 342U(3) of the LG Act 19192 made similar provisions as continued in prescribed planning scheme ordinances. Clause 8 of the 1970 Model Provisions for IDOs provided: “8. Any consent of the Council given under an interim development order shall be void if the development to which it refers is not substantially commenced within twelve months after the date of the consent: Provided that the Council may, if good cause be shown, grant annual extensions or renewals of such consent beyond such period up to a further period of three years.” It will be noted that development consents issued under prescribed planning schemes lapsed if they were not “substantially commenced”

in the required period. The EPA Act changed the test from one of substantial commencement to one of physical commencement. The question of the meaning of “substantially commenced” under the pre1980 law was subject to judicial consideration.3 Footnotes 1

Inserted on 2 August 1957.

2

NSW Government, 17 July 1970, NSW Government Gazette, No 88.

3

See the discussion in Wilcox, M, 1967, The Law of Land Development in New South Wales, Law Book Company, Sydney, p 543–545.

¶65-020 North Sydney Municipal Council v Middle Harbour Investments Pty Ltd In North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 (North Sydney v Middle Harbour Investments), Hardie J in the NSW Supreme Court heard an application for an injunction to restrain the erection of a block of 18-storey home units at Kirribilli on the grounds that the building had not been substantially commenced on the critical date (that being, the date when the consent would lapse and become void). Development consent had been granted under the County Scheme and a building approval had been granted. Prior to the critical date, the company had undertaken partial demolition, some prior holes had been dug and two were poured with concrete to ground level. Hardie J held that he was satisfied this was a genuine commencement of work. He then held in relation to whether this was “substantially commenced” at p 45: “The word ‘substantially’ in the context in which it is used in the relevant provisions creates a real difficulty, and was the subject of

interesting submissions from counsel. The use of the adverb ‘substantially’ in the context, in my view, emphasizes two points, or perhaps two different approaches to the one point. One is that the commencement must be some positive unequivocal step indicating that the building for which consent or approval has been obtained has actually been commenced; in other words, that some work has been done on the site which is referable to and only referable to the particular building or structure that has been approved; in that sense, it emphasizes that the commencement must be a real or actual one as distinct from preparatory work and as distinct from a notional or equivocal or sham commencement. On this aspect of the case I am quite satisfied that there was a real, as distinct from a sham, and an unequivocal, as distinct from an ambiguous, commencement of the building work. The other point emphasized or brought out by the use of the word ‘substantially’ is that indicated by Stirling L. J. in the Bournemouth Case [1902] 2 Ch, at p 733 where he stated that the corresponding phrase in the section then under consideration meant that ‘some substantial portion of the works … must have been physically commenced’. It will be seen that he construed the phrase as referring to the actual commencement of an important or substantial part of the work in question. On this approach to the problem in hand I am satisfied that the work was substantially commenced before the critical date. The laying of the foundation was a most important and substantial part of the work; it was fundamental to and the first essential step in the building process, and it was undoubtedly commenced before the expiry date.” Conclusions The following conclusions may be derived from North Sydney v Middle Harbour Investments. The meaning of “substantially” has two elements: (1) The commencement must be some positive unequivocal step indicating the building for which consent was granted had commenced. Work needs to be done on the site referable to the consent. It must be a real or actual commencement as distinct

from preparatory work or work which is notional, or equivocal, or a sham. (2) A substantial portion of the works must have commenced. It must be an important or substantial part of the work in question. The laying of foundations is an important and substantial part of the work. The enactment of the Environmental Planning and Assessment Act 1979 No 203 (NSW) in its original form provided (in s 99) the following in relation to the lapsing of a consent: • the test was one of “physically commencing” the development, not “substantially commencing” the development • the required period was two years, with a shorter period of one year if, within one year, an Environmental Planning Instrument (EPI) was made which prohibited the development • an extension of one year making a total of three years if, within the two-year period, an application was made to the consent authority showing “good cause” (and with a right of merit appeal to the court), and • where a development has commenced, but not been completed, a power for the consent authority to issue a notice to complete within 12 months or greater (and with a right of merit appeal against such a notice to the court).

¶65-030 Impact of amendments to planning legislation Under the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 No 90 (NSW), the provisions of s 99 were adjusted to ensure the additional one-year extension runs either from the expiry of the two-year period or when a final decision is made on the application for an extension, whichever is longer (s 4 and Sch 1, Pt 5). Under the Local Government (Consequential Provisions) Act 1993 No

52 (NSW), s 99 was amended to make the lapsing period five years, or in the case of a staged commencement consent, five years after the initial development consent, or two years from the date of the latest development consent, whichever is longer. The consent authority could vary these periods provided the lapsing was not less than two years, and where a lapsing period is less than five years there is a capacity for a one-year extension with “good cause”. The shorter lapsing period where an EPI prohibits development was removed (s 4 and Sch 2). With the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW), a new Pt 4 was substituted for the previous one, and the lapsing provision was contained in s 95, with the extension in s 95A similar to that previously applying. The power to issue notices to complete was removed entirely. In the Environmental Planning and Assessment Amendment (Development Consents) Act 2003 No 60 (NSW), special lapsing provisions were included for State significant development (SSD) as it applied until the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments) came into force. In the 2005 Amendments, the special lapsing period provisions for staged development consent were changed to provide simply that such consents lapsed after five years and that period could not be reduced by the consent authority (s 3 and Sch 3 [6]). In the Environmental Planning Legislation Amendment Act 2006 No 123 (NSW), s 95 was amended to provide that a development consent with a deferred commencement condition lapses if the deferred commencement condition is not satisfied within five years, or such shorter period as may be specified by the consent authority (s 3 and Sch 1 [41]). In the Environmental Planning and Assessment Amendment Act 2008 No 36 (NSW), s 95 was amended to enable the making of regulations as to what work is or is not taken to be substantially or physically commenced. Section 95A was amended to provide a right of a oneyear extension to satisfy a deferred commencement condition, where

the consent authority specified for this to be done in a shorter period than five years. In the Environmental Planning and Assessment Amendment (Development Consents) Act 2010 No 25 (NSW), any reductions made to the five-year lapsing period were to be disregarded up until 1 July 2011 or other period prescribed (s 3).

¶65-040 Smith v Wyong Shire Council In Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170 (Smith v Wyong), Cripps J in the Land and Environment Court of NSW (NSWLEC) heard an application for a declaration that a development consent for a six-storey residential building at Long Jetty had commenced. A short period before the critical date (being the date on which the consent would lapse), two employees of the applicant carried out some minor demolition work to remove some concrete slabs and excavated an area of 450 m2 to a depth of between 600 mm and 900 mm, using a front end loader and two trucks. The excavation was carried out to investigate materials likely to be encountered in the area in which the building’s basement was to be constructed. A building application was lodged with Council just before the critical date. Cripps J held at p 176–178 as follows: “I am not prepared to accede to Mr Bingham’s submission that where consent is granted for the erection of a building the development is commenced within the meaning of the relevant legislation when and only when building work, as opposed to engineering or construction work, relating to that development is physically commenced on the land. In my opinion, provided that what has been carried on is relevantly building, engineering or construction work and provided it relevantly relates to the development the subject of the consent, the only requirement is that it must be physically commenced. Although posed as three separate submissions, Mr Bingham’s second third and fourth submissions seem to me to be three ways of saying the same thing, viz. that what was done was not relevantly referable to that for which consent was granted.

Prior to the introduction of the present legislation, most planning schemes contained a provision that the development consent would be void if the development to which it referred was not substantially commenced within a certain time. Part XI of the Local Government Act provides that a building approval will lapse if the building work to which it refers is not substantially commenced within twelve months of the date of the approval: s 315. The many cases referred to in argument address the meaning of ‘substantial commencement’. In North Sydney Municipal Council v Middle Harbour … [His Honour then included the extract from North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (previously included).] … [p 177] That observation was approved by the Court of Appeal in Mangano’s case and in United Dominions Corporation Pty Ltd v Woollahra Municipal Council [1973] 1 N. S. W. L. R. 616; 27 L. G. R. A. 369. In Drummoyne Municipal Council v Lebnan (1974) 131 C. L. R. 350 at 360; 30 L. G. R. A. 237 Gibbs J, with whom the rest of the court agreed, said: ‘Clearly the work and development which s 315 of the Act and cl 38(2) of the ordinance require should have been substantially commenced is that to which the approval or consent itself refers and it would seem to follow that work or development not commenced when nothing more has been done than acts preparatory to the work or development which is the subject of the approval or consent. It may therefore be assumed, although it is not necessary to decide, that the demolition of the existing houses should not be regarded as commencement of the work in the present case.’ In Liverpool City Council v Home Units of Australia (1973) 28 L. G. R. A. 28 at 33, Hurley J. A. referred to the distinction between work which was preparatory to development work in question,

offsite work in regard to the development, preparatory work on the site itself and the carrying out of the work of development which in terms has been approved. In Auburn Municipal Council v F. N. Echold Pty Ltd (1974) 34 L. G. R. A. 101, Mahoney J. held that a development, being a block of twenty flats with residential garages under the building, was not substantially commenced by the demolition of one of three houses together with the preparation of certain plans. His Honour was of the opinion that the demolition of the building was a preparatory act and not an act necessarily involving the development. In Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 L. G. R. A. 188, Rath J. held that demolition work was not work referred to in the development consent and was therefore not relevant but that the erection of a retaining wall was a substantial commencement because of the proved [p 178] relationship between it and the development as approved and that it was a substantial part of that development. In Day v Pinglen Pty Ltd (1981) 55 A. L. J. R. 416; 45 L. G. R. A. 168 that court said: ‘However, it remains necessary to consider, applying an objective test, whether, firstly, there was a commencement of the building work, and if so whether that commencement was substantial. There are some persuasive indicators pointing to a conclusion that there was no commencement of the building work in March 1977. There was, of course, the construction of a concrete slab. But the detailed drawings for the approved project had not been prepared. Tenders had not been called, and no contract had been let. The casual arrangement by which a builder, already engaged in another project for the owner, transferred some of his men on the site for three or four days that were necessary to complete the particular work to which he was assigned strongly suggests that this was an isolated work which had no real relation to the building work for which the approval had been given. The

job was an end in itself. It was the construction of a concrete slab.’ Although the court was not prepared to disturb the trial judge’s finding that the work had commenced, it concluded that there had been no ‘substantial’ commencement. In my opinion, however, the observations of the High Court are apposite to the facts of the instant case. The owner used some of his men for a few days to do some isolated work that had no real relation to the erection of the residential fiat building in the sense referred to by the High Court. The job was an end in itself in that it was for the purpose of inspecting the site to determine the design of the basement. Although, as I have said, in appropriate circumstances excavation could amount to physical work preparatory to the commencement of the erection of a building, in this case the work was not done for that purpose. What the section requires is that the development the subject of the consent is commenced within a period of two years. That commencement occurs when the building, engineering or construction work relating to the development the subject of the consent is physically commenced. In my opinion, there has not been established a sufficient nexus or relation between what was done by Mr Smith’s employees in June 1983 and the development the subject of the consent, namely the erection of a six-storey residential flat building. Accordingly, I refuse to make the declarations sought.” Cripps J noted the test under the EPA Act required physical commencement and not the former test of substantial commencement, but did not elucidate the difference. Presumably, however, the two elements of substantial commencement (as identified in Middle Harbour Investments) would be that: (1) the work must be referable to, and only referable to, the particular development (the subject of the consent), and (2) the work done must be an important or substantial part of the development (the subject of the consent).

The difference between substantial commencement and physical commencement is that the former requires both elements, while the latter only requires the first element. The following conclusions may be derived from Smith v Wyong: • Where consent is granted to erect a building, it is not correct that the development has commenced when building work, as opposed to engineering or construction work, has physically commenced. A consent for the erection of a building may be physically commenced if engineering or construction work, as opposed to building work, has physically commenced. • The work done to physically commence a development is required to be referable to the consent. • There is a distinction between work which is preparatory to development work and the carrying out of the approved development. Unless demolition was part of the approved development, it is a preparatory act and not an act necessarily involving the development. • Isolated work, which has no real relation to the development, the subject of the consent or work, but which is an end in itself and not related to the development (the subject of the consent), does not qualify for physical commencement, nor does work which only has a notional, equivocal or sham commencement. • There needs to be a sufficient nexus or relationship between the building, engineering or construction work done and the development which is the subject of the consent.

¶65-050 Iron Gates Developments Pty Ltd v RichmondEvans Environmental Society Inc In Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 (Iron Gates), the NSW Court of Appeal heard an appeal regarding whether a development consent for

subdivision at Evans Head had lapsed. The development consent required that road works be constructed to Council’s standards after full engineering plans were submitted and approved by the Council’s engineering department. Prior to the critical date for lapsing of the consent, a bulldozer had cleared a 20 m wide strip for a distance of 1 km along the site of the internal access road and then, for 26 m along the site of the internal access road. Stockpiling and storage areas were also cleared. The internal access road work was prohibited until the external access road had been constructed by a condition of the consent. There was no dispute that the external access road had not been constructed. Handley JA (with whom Mahoney JA and Rogers AJA agreed) held at p 135 (noting the references to s 99 are to the lapsing provisions prior to the commencement of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments)): “The imposition of conditions on the grant of development consent is authorised by s 91 and such conditions are enforceable as if they were part of the Act: see ss 122(b)(iii), 123, and 125. In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125 (1). It is not necessary in this case to explore the possible application of the principle that a person may not rely upon his own wrong: compare Alghussein Establishment v Eton College [1988] 1 WLR 587. In my opinion the work in question was not work ‘relating to that development’ for the purposes of s 99(2) (a) because it was prohibited by the consent, and therefore was not ‘the subject of that consent’ within s 99(1) (a). Although this conclusion flows from the language of s 99 which I consider to be quite unambiguous, it is relevant to note that the same conclusion has been reached by the courts in England on the corresponding provisions of the Town and Country Planning Act 1971 (UK): see s 41(1), s 41(2), and Schedule 24, par 20(1)

‘the development to which the permission relates must be begun’; see Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35 at 41, and Oakimber Ltd v Elmbridge Borough Council (1991) 62 P & CR 594 at 609, 616. In the latest case F G Whiteley & Sons Ltd v Secretary of State for Wales (1992) 64 P & CR 296, so far only available to me Woolf LJ said: ‘The permission was controlled by and subject to the conditions. If the operations contravened the conditions they could not be properly described as commencing the development authorised by the permission. If they did not comply with the permission they constituted a breach of planning control and for planning purposes would be unauthorised and thus unlawful. That was the principle clearly established by the authorities. It was a principle which made good sense since … when s 41(1) of the Town and Country Planning Act 1971 made the planning permission subject to a condition requiring the development to be begun by a specified date, it could (not) have been referring to development other than that which was authorised by the Act. The mining operations to which the permission related were those authorised by the permission, not those which were unauthorised because they contravened conditions contained in the planning permission.’ In my opinion therefore the subdivision consent lapsed on 21 October 1991 and in this respect the appeal fails.” Conclusions The following conclusions may be derived from Iron Gates: • Work undertaken, which is in breach of a condition of the consent and hence, prohibited and alleged, cannot be work relating to the development (the subject of the consent). Such work cannot be relied upon to physically commence a consent.

¶65-060 Noble House Corporation Pty Ltd v Sydney City Council

In Noble House Corporation Pty Ltd v Sydney City Council [1999] NSWLEC 190 (Noble House), Talbot J in the NSWLEC heard a question of law as to whether a development consent for an 18-storey building in Dixon Street, Sydney had lapsed. Just prior to the critical date, coring work, to install four columns, was undertaken. One column had reinforced steel installed in it and concrete poured that was sufficient to support the weight of the building. Talbot J addressed the degree or extent of work required for physical commencement. He held at paragraphs [19]–[20]: “19. Pursuant to subs (4) [i.e. s 94(4)], development consent for the erection of a building does not lapse if building, engineering or construction work relating to the building is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section. 20. There is no question of degree or extent of the work. If it can be said that it is physically commenced and is properly to be regarded as relating to the building, that is an end to the matter.” He held that the construction of the one column was sufficient to establish physical commencement. He held that the coring excavation was not physical commencement, although he noted that he would not exclude the possibility that excavation, in other circumstances, might amount to physical commencement. He found that the construction of one column was sufficient, and did not constitute a sham, even if the primary purpose was to avoid the lapsing of the consent, as the work was not an end in itself but will ultimately form an integral part of the development. Conclusions The following conclusions may be derived from Noble House: • For the physical commencement of development consent, the degree or extent of work undertaken is not relevant. • If the work undertaken to achieve physical commencement will ultimately form an integral part of the development it will not be a sham or an end in itself, even if it was done for the primary purpose of preventing the development consent from lapsing.

¶65-070 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317 (Coalcliff), the NSW Court of Appeal heard an appeal relating to whether a modification could lawfully be made to a development consent granted by the Minister in 1983 to Kembla Coal & Coke Pty Ltd (Kembla) for the emplacement of coal refuse at Madders Plain. The development consent required the construction of an underground drift between the coal washery and the dump within four years of the date of the consent and, in the interim, permitted road haulage of refuse. The consent required that, prior to its commencement of work, Kembla had to enter into a deed of agreement with the Minister to transfer the subject land for public open space, and it also provided that Kembla obtain approval for an operations manual prior to construction. Kembla commenced to carry out work under the consent in 1984 until 1991 when the mine closed. The drift was never constructed, and at no time did Kembla enter into a deed with the Minister. Kembla sought to modify the consent in 1995 to delete the requirement for a drift, and this modification was granted in 1995. The Coalcliff Community Association Inc challenged this modification. One of the grounds was that the consent had lapsed and hence, could not be later modified. Stein JA (with whom Meagher JA agreed) held at paragraphs [62]– [64] and [66]–[67] as follows: “The lapse issue 62 In my opinion, this issue is a relatively simple one. Condition 9 was required to be complied with ‘prior to the commencement of any work on the land in relation to the proposed development’. It was a precondition to work commencing on the site. It is common ground that the deed of agreement specified in the condition was not entered into prior to July 1984, when the 4th respondent commenced the use. Indeed, as Talbot J found, such a deed has never been entered into. Condition 13 was required to be complied with ‘prior to the commencement of construction of the

proposed development’. It required the submission of an operations manual on all aspects of the emplacement area and the drift for the Council’s approval prior to commencement of the works. Again, it is common ground that the manual which was submitted did not include any aspects relating to the drift. No operations manual relating to the drift was prepared at any stage. 63 Conditions 9 and 13 need to be construed. In my opinion, condition 9 is plain and its ordinary meaning apparent. ‘Prior to the commencement of any work on the land’ must mean what it says. There is no room for any alternative construction since there is no ambiguity in the language. Similarly, the words of condition 13 are clear. With respect to his Honour, I do not see how the condition can be read distributively as two conditions, one for the emplacement and another for the drift, if and when it may be constructed. 64 The condition says ‘and the drift’, and those words cannot be read out or modified in the way his Honour suggests. There is no room for a ‘purposive or practical approach’ which would, in any event, defeat the expressed intention of the Minister when he granted the consent. Accordingly, it is beyond argument that Kembla was in breach of condition 13, as well as condition 9. It is true that in Wollongong City Council v AIS (1988) 67 LGRA 51 Holland J said that an over-technical approach to the meaning and language used in conditions is not, as a general rule, called for. However, the words used in the subject conditions are ordinary English words and carry a plain and unambiguous meaning. … [His Honour then quoted an extract from the judgment of Handley JA in Irongates.] … 66 Handley JA said that this conclusion flowed from the language of s 99 which was ‘quite unambiguous’. Mahoney JA and Rogers AJA agreed. Although this case was decided in 1992, it is my respectful opinion that the interpretation of the provision, included in the statute in 1979, was obvious. That is, that work done

unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s 99. Applying Irongates means that none of the work done on the site from July 1984 up to November 1985 can be taken into account. That work was performed in breach of the consent because it occurred before either condition 9 or 13 were complied with. Both conditions were required to be complied with prior to the commencement of any works on the land. As I have said, they were preconditions to any work taking place on the site. 67 It must follow that the consent lapsed on 9 November 1985 pursuant to s 99 of the Act because it had not been physically commenced within 2 years. There is nothing harsh in this conclusion. The developer could have appealed any condition in the first 12 months of the consent. It could have sought to modify the conditions in question before the 2 years had elapsed. It could have applied for an extension of time. It pursued none of these remedies.” Hodgson CJ in Eq (with whom Meagher JA also agreed) held at paragraphs [93]–[97] as follows: “93 Mr. Hemmings QC for Kembla submitted that, while Kembla may have been in breach of the conditions in failing to do things required, it was not in breach of the conditions in commencing work and/or construction. 94 In my opinion, if there is a requirement that one do X before one does Y, this normally means one is required not to do Y until one has done X; so that if one in fact does Y before doing X, there is a breach of the requirement which can be characterised both as ‘failing to do X before one did Y’ or as ‘doing Y in circumstances where one had not previously done X’; and there is a breach of the requirement under the latter description just as much as the former. 95 There may however be some cases in which a requirement to do X before one does Y is not fairly interpreted as a requirement not to do Y until one has done X: for example, if it is plain between the giver and receiver of the requirement that if, for

whatever reason, the receiver does not do X before the expected time comes to do Y, the receiver should nevertheless go ahead and do Y. As one instance of this, if a parent says to a child ‘tidy your room before you go to school’, both may understand very well that if the room is not tidied before the proper time for going to school, the child should nevertheless go to school at the proper time. In such a case, the failure to tidy the room would be a breach of the requirement, whereas going to school at the proper time would not be, even if the room had not then been tidied. If the proper time for going to school was 8am, the instruction would be interpreted as a requirement to tidy the room before 8am; and not as a requirement to refrain from going to school at 8am if the room was not then tidy. By contrast, an instruction by a parent to a child to ‘finish your homework before you watch television’ would most likely be understood as meaning ‘do not watch any television until you have finished your homework’. 96 In the case of both Condition 9 and Condition 13, I think it is clear as a matter of construction that Kembla was required to refrain from commencement until it had done what those conditions had required. There is no basis in the consent or in the circumstances for any suggestion of a common understanding that commencement was to go ahead at some expected time, even if these things had not been done by them. On the contrary, having regard to the significance of the requirements, and the difficulties that could arise (and in the case of Condition 9 at least, did arise) if they were not attended to before commencement, the terms of the consent and the circumstances in fact confirm that Kembla was required not to commence before complying with the requirements of Condition 9 and Condition 13. 97 Accordingly, as found by Stein, JA, all work done by Kembla was unlawful, and the Irongates principle applies.” Conclusions The following conclusions may be derived from Coalcliff: • The decision in Iron Gates was followed, namely that work done unlawfully under a consent cannot count as commencement to

prevent lapsing of that consent. • There may be some circumstances where a requirement to do one thing before another should not properly be interpreted as a requirement not to do the second thing until the first thing has been done. This is a matter of properly construing the requirement, but is unlikely to be the case if the first thing required is a matter of significance.

¶65-080 Green v Kogarah Municipal Council In Green v Kogarah Municipal Council [2001] NSWCA 123 (Green v Kogarah), the NSW Court of Appeal heard an appeal regarding whether a development consent for dual occupancy and subdivision at Oatley had lapsed. Consent was granted in 1995 and at the time of the appeal, the development was no longer permissible under the relevant EPI. Before the critical date for lapsing the site was surveyed, some vegetation was removed and a labourer dug some trenches, ostensibly for footings to expose load-bearing rock. These trenches were dug in the wrong location for footings of the building (the subject of the consent). Further, trees were lopped and a trench dug for drainage. At the time of these works, no building approval had been granted although a Building Application (BA) had been lodged and then withdrawn. Condition 9 of the consent provided that no trees, other than those located within the external walls of the approved building, were to be removed without prior written permission of Council, while condition 17 required silt control devices to be installed prior to commencement of land clearing and construction works, with details of such to be submitted with the BA. Giles JA (with whom Mason P and Ipp AJA agreed) held that the principles in Iron Gates applied and held at paragraphs [59]–[62] as follows: “59 For the other conditions of the development consent, it is enough to refer to condition 10 concerning tree protection and condition 17 concerning silt protection devices. They were expressed as conditions to be satisfied prior to the

commencement of any site works and prior to commencement of land clearing and construction works respectively. The language was the same as that in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning. 60 In my opinion conditions 10 and 17 were conditions which, as a matter of construction of the development consent, had the effect of prohibiting the commencement of any site works and the commencement of land clearing and construction works. To adopt the analysis by Hodgson CJ in Eq in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning, their requirements to do X before doing Y amounted to requirements not to do Y until X had been done. There was therefore a prohibition, indeed there were two prohibitions. If the conditions were not satisfied and the activities on which the appellant relied fell within the prohibitions, on the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc the appellant’s development consent lapsed notwithstanding the activities. 61 Condition 17 may or may not have been satisfied. The sediment control fence or silt fence said by a council officer to be satisfactory did not necessarily constitute provision of silt control devices in the vicinity of the building site as required by the condition. This was not really investigated at the trial and was not the subject of an express finding, although the tenor of what Cowdroy J said in the second passage from his reasons earlier set out was that silt retention measures had not been provided as required. 62 I put condition 17 aside, and turn to condition 10. It is plain that there were trees on the site outside the footprint of the second dwelling as cleared in March 1999, and that they were not enclosed with protective fencing as required by condition 10. Cowdroy J inferentially so held, see the same passage from his Honour’s reasons, and the fact is clear. If the activities were site works, therefore, they were prohibited. On the ordinary meaning of the phrase, I consider that they were site works. The objective of condition 10 was that the trees on the site should be protected

while any work was carried out, and that called for protection from the beginning and at least from when the clearing and excavation was carried out early in March 1999. On the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc, then, the appellant’s development consent lapsed notwithstanding the activities.” Thus, in Green v Kogarah the NSW Court of Appeal followed Iron Gates in holding that physical commencement was not achieved by undertaking works in breach of a condition of the consent itself. However, the court then proceeded to examine an alternative and expanded basis for prohibition of the works in question. Giles JA held at paragraphs [63]–[67]: “63 The respondent submitted that there was an alternative basis for prohibition of the activities, a basis otherwise taking up the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc and leading to the same result. On the facts in that case, it was said, when the owner of the land commenced stage 1 by carrying out the physical work of subdivision it did so without development consent, because although development consent had been granted the carrying out of the development was conditioned on the happening of an event, namely, the construction of the road. Quite apart from a prohibition by the development consent itself, there was a prohibition because the development could only be carried out with development consent and in accordance with any conditions of the development consent, see s 76 of the unamended Act (which remained as s 76 of the Act (1995) set out earlier in these reasons). So in the present case, as the argument related to condition 10 of the development consent, if that condition had not been satisfied and the activities were carrying out development within s 76 of the Act (1995) or s 76A of the Act (1999) (it did not matter which was taken), because they were the erection of a building, the subdivision of land or the carrying out of a work, the activities were prohibited and illegal. 64 This alternative basis still required that the activities were site

works, since the carrying out of the development had to be conditioned on the happening of an event, as related to condition 10 the provision of tree protection, prior to the commencement of any site works. It differed from the basis in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc in that the development consent did not have to contain a prohibition within itself — it was enough that the activities were not authorised by the development consent. 65 The alternative reasoning gains support from the English cases cited by Handley JA in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. In particular in F G Whiteley & Sons v Secretary of State for Wales Woolf LJ said (at 302) — ‘As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities. It is a principle which I would have thought made good sense since I cannot conceive that when section 41(1) of the 1971 Act made the planning permission subject to a condition requiring the development to be begun by a specified date, it could have been referring to development other than that which is authorised by the permission. The position is the same so far as regulation 7 and condition 11 are concerned. The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission.’

66 Handley JA cited all but the first sentence of this passage. While the basis for the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc involved the prohibitory effect of the condition of the development consent itself, the principle which his Honour thereby accepted extended the reasoning to prohibition because the development which the landowner claimed to have commenced was not ‘permitted by the planning permission read together with its conditions’. 67 To my mind this is a more satisfactory basis for the reasoning. Even if a development consent on its proper construction amounts to a requirement not to do Y until X has been done, it is necessary to ask why the landowner is precluded from doing Y in the first place — why there can be imposed the precondition of doing X. The answer is that Y can not be done without consent, and the underlying prohibition is the prohibition on carrying out the development without consent.” Thus, in Green v Kogarah, the NSW Court of Appeal held that where activities are undertaken to satisfy the test of physical commencement of a development consent, such activities will not satisfy the test not only if they are prohibited by a condition of the consent, but also if such activities are not authorised by a development consent. In response to an argument that the activities in question did not require development consent, Giles JA held at paragraphs [70]–[71]: “70 The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant’s land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and

their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Hardie J said (at 45) that ‘The laying of the foundation was the most important and substantial part of the work; it was fundamental to and the first essential step in the building process …’. 71 In the present case the scope and purpose of the activities was the erection of the second dwelling. In my opinion, as a matter of fact, the activities were part of the erection of a building, and were for that reason carrying out a development. The appellant’s response can not be accepted. On the respondent’s alternative basis, because condition 10 was not complied with the activities were prohibited and illegal. The appellant’s development consent lapsed notwithstanding the activities.” Conclusions The following conclusions may be derived from Green v Kogarah: • Activities which are undertaken to satisfy the requirement of physical commencement to avoid the lapsing of a development consent, do not satisfy that requirement, not only if they are prohibited by a condition of the development consent (as in Iron Gates), but alternatively, if they are not authorised by a development consent. • The carrying out of development is a process, not the product of an activity or process. Where an activity is undertaken to carry out development, such as the erection of a building, it is unrealistic to sever initial activities from later ones (and claim that they were work which did not require development consent) but seek to characterise those activities as engineering or construction work.

¶65-090 Detala Pty Ltd v Byron Shire Council In Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404 (Detala), the NSW Court of Appeal heard an appeal regarding a development consent that had lapsed after the 1997 Amendments commenced operation (removing the requirements for building approvals under the

Local Government Act 1993 (NSW) and inserting Pt 4 into the EPA which required a construction certificate to be obtained for building work). In Detala the following issues were argued: • whether a condition of the development consent requiring that no tree should be lopped or damaged or removed in contravention of the Council’s Tree Preservation Order, and that any trees which required removal were to be shown on a plan to be submitted for approval by Council prior to any works commencing, would result in works being prohibited by the consent and hence, not capable of satisfying the physical commencement test under Iron Gates, and • whether the absence of a construction certificate under the EPA Act also triggered the Iron Gates principle. In relation to the tree removal condition, Davies AJA (with whom Santow JA agreed) held that the grant of the development consent also constituted the grant of approval under the Tree Preservation (paragraphs [25]–[32]) and that, in relation to the requirement for a plan prior to the commencement of work, the applicant had done all that was required under the condition. In relation to the requirement for a construction certificate, Davies AJA (with whom Handley JA and Santow JA agreed) held at paragraphs [44]–[46] and [63] as follows: “44 As no construction certificate issued, the work that the appellant carried out was unlawful, being in breach of s 81A(4) of the EPA Act. Mr Tobias submitted that non-compliance with s 81A(4) did not render the work illegal so as to bring into operation the principle enunciated in Iron Gates and the other authorities I have mentioned. Mr Tobias referred to the power of a Council to issue a building certificate under ss 149A–D, the effect of the issue of which would be that the Council would be prevented from making an order that ‘no building’ be ‘demolished, altered, added to or rebuilt’. See s 149E. 45 However, a construction certificate has a much wider operation than a building certificate. For example, s 80(12) of the

Act provides: ‘If a consent authority or an accredited certifier endorses plans and specifications in accordance with section 81A (2) or (4), the plans and specifications are taken to form part of the relevant development consent’ 46 In particular, the effect of the carrying out of the work without a construction certificate was not merely that building work occurred but also that heath scrub was destroyed. In my opinion, because the subject work was carried out without a construction certificate having being sought or issued, the work that was done cannot be regarded as work failing [sic. Should read “falling”] within the provisions of s 95(4). … 63 In the result, therefore, as the appellant breached the provisions of s 81A(4) by commencing work without obtaining a construction certificate, and as s 80(12) provides that a construction certificate will form part of the actual development consent, the appellant has not shown that the work which it carried out on 13 and 14 March 2000 was work which attracted the provisions of s 95(4) of the EPA Act.” Conclusions The following conclusions may be derived from Detala: • Where development consent is granted for development which requires the removal of trees, the grant of development consent also constitutes an approval under the Tree Preservation Order. • Where activities are undertaken to meet the test of physical commencement to avoid a development consent from lapsing, if such activities require a construction certificate under the EPA Act and none has been granted, such works are illegal due to a breach of s 81A(4) of the EPA Act, and as a result, such activities do not constitute physical commencement under the principles in Iron Gates.

In light of the gradual expansion of the principles in Iron Gates from work in breach of the consent, to Green v Kogarah of work not authorised by consent, to Detala of work otherwise in breach of the EPA Act, the question arises as to whether this extends to breaches of other legislation, such as excavation of footings within 40 m of a stream without an approval under the Water Management Act 2000 (NSW). It will be recalled that the basis for illegal works not constituting physical commencement in Iron Gates rested with conclusion that such works were not works “relating to the building, subdivision or work … to which the consent applies” (to use the current terms of s 95(4) rather than the terms of s 99 as applied at the time of Iron Gates). Applying the factual basis for the decision in Iron Gates suggests the principle does not apply to works in breach of other laws as such other laws do not relate to the consent. Additionally by analogy, in Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 (Ke-Su Investments), McClelland CJ in the NSWLEC in dealing with the meaning of “lawful” in relation to existing use rights held at p 203–205: “In support of his submission that ‘lawful’ in ss 106 and 107 of the Environmental Planning and Assessment Act does not mean lawful under the general law but is to be given the limited meaning of ‘not prohibited by planning law’ Mr Tobias cited the decision of the Federal Court (McGregor, Lockhart and Fitzgerald JJ.) in Northern Territory Planning Authority v Murray Meats N. T. Pty Ltd (1983) 48 A. L. R. 188; 51 L. G. R. A. 158. [p 204] In my view, the authorities support the construction of s 106 contended for by Mr Tobias. The implicit invitation to the court in the present proceedings to step outside the confines of planning law to determine what is a lawful existing use is an invitation to exceed its function. Lurking in the background of most uses of land is a host of statutory and common law provisions affecting such use. In New

South Wales, for example, there are such statutes as the Metropolitan Traffic Act 1900; the Metropolitan Water, Sewerage and Drainage Act 1924; the Water Act 1912; the Sydney Harbour Trust Act 1902; the Public Works Act 1912; the Theatres and Public Halls Act 1908; the Factories and Shops Act 1912; the Height of Buildings Act 1912; the Pure Foods Act 1908; the Dangerous Goods Act 1975; the Liquor Act 1982. It is no part of the task allocated to this Court by the legislature, in considering whether an existing use is ‘lawful’ for the purposes of the Environmental Planning and Assessment Act, to inquire or determine [p 205] whether such use infringes any of those other Acts or, for example, the common law governing nuisance. If an attempt were made to incorporate into the oversight of planning law exercised by the court the regulatory effects of all other laws affecting land use its work would be in danger of being impossible of performance.”

¶65-100 Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council In Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 39 (Boral v Wingecarribee) Lloyd J in the NSWLEC heard an application for a declaration that the development consent for the Mt Misery Quarry had lapsed. One of the conditions of the consent (Condition 13(i)) required that the applicant construct a left turn lane on a public road eternal to the quarry site as identified in the development application (DA). This road widening was undertaken by the applicant prior to the lapsing date of the consent. The applicant sought to rely on this work as constituting physical commencement. The Council argued the works were not on land to which the consent applied. Lloyd J held at paragraph [26]: “26. In my opinion the answer to the question is clear. The ‘land to which the consent applies’ is all land upon which works required

by and authorised by the consent are to be carried out. The works described in condition 13(i) are works both required by and authorised by the development consent. Such works were thus to be carried out on land to which the consent applies. Although the development application did not specify such land as either the land affected by the proposal or as land specified in the application, the conditions of the consent extend to include the land described in condition 13(i). Moreover, no construction work could be carried out at the quarry site unless and until the works on the land described in condition 13(i) were carried out.” Conclusion The following conclusion can be derived from Boral v Wingecarribee: • The requirement of physical commencement on the land to which the consent applies refers to all land upon which development (required by or authorised by the consent) is to be carried out. It also includes the conditions of the consent, which may have the effect of extending the land to which the consent applies beyond that provided in the DA.

¶65-110 Kinder Investments Pty Limited v Sydney City Council In Kinder Investments Pty Limited v Sydney City Council [2005] NSWLEC 737 (Kinder Investments), Preston CJ in the NSWLEC heard a question of law on a merit appeal against Council’s refusal of a s 96(1A) modification application. The Council granted development consent in 2002 to add eight levels to an existing 12-level commercial office building in Goulburn Street Sydney. The consent provided a condition that the consent would lapse in two years if not physically commenced. This period was extended by one year, with the new lapsing date being 2005. The applicant sought to keep the consent alive by the novel means of seeking to modify the consent to change the two-year lapsing period to five years. The question of law before the court was whether a consent could be modified under s 96 to vary the lapsing period. Preston CJ held at paragraphs [32]–[42] and [44]–

[45] as follows: “32 The statutory scheme embodied in s 95 is that the statute itself, ultimately s 95(1), and not the development consent, causes a development consent to lapse. It does this by causing a development consent to lapse upon the occurrence of an event. The event is the expiry of a period of time from a date. The date is the day from which the development consent operates. The period of time is the period fixed at the time of, and in the granting of, the development consent. 33 The fixing of the period is a one off exercise. It can only be done at the time of and in granting development consent. The period can either be the five year maximum period specified by s 95(1) as the maximum period, or such reduced period (but not less than two years: s 95(3)) as the consent authority may specify in granting the development consent pursuant to s 95(2). 34 There is a power under s 95A to extend the period fixed in the granting of the development consent. But any such extension does not involve fixing the lapsing period. It involves an alteration of the period that has already been fixed by the consent authority in granting the development consent. 35 The extension operates, by dint of s 95A(4), to prevent the development consent lapsing in accordance with s 95(1), until the later of the two days specified in s 95A(4) of the Act. 36 The upshot is that the statutory scheme exhaustively prescribes the means by which a development consent will lapse, and the timing of the lapsing, dependent upon the period fixed in the granting of the consent and any subsequent extension of that period under s 95A. 37 Hence: (a) If in granting the development consent, the consent authority fixes the statutory maximum period of five years, the consent will lapse five years after the day from which it operates (unless development is commenced pursuant to s 95(4) or (5) of the Act);

(b) If in granting the development consent, the consent authority fixes a reduced period (being less than the statutory maximum period of five years, but more than the statutory minimum of two years) and no extension is granted under s 95A, the consent will lapse upon the expiry, after the day from which the consent operates, of that reduced period; or (c) If in granting the development consent, the consent authority fixes a reduced period (being less than the statutory maximum period of five years, but more than the statutory minimum period of two years), and an extension of one year is granted under s 95A, the consent will lapse upon the expiry, after the date from which the consent operates, of a period being the sum of the reduced period plus the extension. 38 These are the only possible means and timings of lapsing of a development consent permitted by the statutory scheme. 39 No modification of a development consent under s 96 can alter these means or timings of lapsing. The modification of a consent is not the grant of a consent: see s 96(4) of the Act. Hence, even if s 96 could be used to alter any reduced period that was specified pursuant to s 95(2) by the consent authority in granting the development consent, such modified period could never answer the description of being a period specified under s 95(2) of the Act ‘in granting development consent’. 40 The consequence is that, notwithstanding any modification of the consent that might be made, s 95(1) would still operate so as to cause the development consent to lapse on the expiry of the period that was fixed in granting the development consent together with any extension granted under s 95A. 41 In the present case, this means that even if the development consent were to be modified by changing the period stated in the consent to five years, as sought by the applicant, s 95(1) would continue to operate so as to cause the consent to lapse upon the expiry of the period of three years (two years fixed in granting the

development consent plus the one year extension) after the date from which the consent operates, namely 13 December 2005. Any modification would be legally ineffectual to prevent this statutory consequence of lapsing. 42 … Even if the power to modify a consent under s 96 of the Act were to be available, an exercise of that power would not prevent a consent from lapsing in accordance with the statutory means and timings which operate in relation to the unmodified consent. … 44 I will also address directly the argument put by the parties as to the availability of s 96 of the Act to modify a development consent to vary the lapsing period. 45 In this regard, the terms of s 95 and s 95A on the one hand, and of s 96 on the other, as well as the statutory scheme embodied in these respective provisions, support the conclusion that s 95A does provide an exhaustive means for extending the lapsing period and that s 96 does not provide an alternative power. The reasons for so concluding are essentially those stated by the Council and summarised above. In particular, s 95A constitutes a deliberate and specific regime for extending the lapsing period of a consent. It would be inconsistent for the same result, namely an extension of the lapsing period, to be able to be achieved by an exercise of the general power of modification under s 96 of the Act. The specific limitations and conditions that the legislature chose to provide in ss 95 and 95A would be circumvented.” Conclusions The following conclusions may be derived from Kinder Investments: Where a condition of a development consent provides for a lapsing period less than five years, a modification of the consent to alter the condition back to the five-year maximum would be both ineffective and beyond power for the following reasons: • The fixing of the lapsing period of a consent is a one-off exercise, done at the time of and in the granting of consent and

subsequently, s 95 and s 95A operate to cause the consent to lapse. No s 96 modification can thereafter alter the lapsing period. • Section 95A provides the exhaustive means for extending the lapsing period and s 96 does not provide an alternative power. Section 95(4) of the EPA Act identifies the type of work which must be undertaken to avoid a consent lapsing as being “… building, engineering or construction work relating to the building, subdivision or work …” for which consent was granted.

¶65-120 Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council In Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169 (Hunter Brokerage), the NSW Court of Appeal heard two appeals together regarding whether development consents for residential subdivision had lapsed. In both cases, survey work (involving clearing of vegetation, digging of holes, and placement of markers and pegs) had been undertaken, while in the Hunter Brokerage case, geotechnical investigations and landscape work had been undertaken. The issues in the case were: • whether survey work is capable of being engineering work relating to the subdivision (the subject of the consents), and whether the survey work actually carried out was engineering work, and • whether the statutory provisions exclude preparatory work, even if it is engineering or construction work relating to the approved subdivision. Tobias JA (with whom Santow JA and Stein AJA agreed) noted that Talbot J in Richard v Shoalhaven City Council [2002] NSWLEC 11 said: “10. Let me say at the outset that whether the works are

preparatory or not is not the question to be determined. That is a distinct question from the question of whether engineering work physically commenced. The expression relating to preparatory work arose historically under the provisions of the Local Government Act 1993, prior to its recent amendments and in particular s 315. The present legislative regime speaks only of work being physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under the section.” Tobias JA then held at paragraphs [72]–[73], [78]–[80], [83]–[86] and [88] as follows: “72 Tovedale therefore submitted that survey work comprising land clearing, pegging and the erection of permanent survey marks and which, therefore, involved physical activities upon its land, was capable of constituting ‘engineering or construction work relating to’ the approved subdivision which had been ‘physically commenced’ upon the subject land. It was further submitted that once one accepts that ss 99(2) and 95(4) concentrate upon the physical activity which is required to be commenced (but not completed) so that the statutory provisions are concerned only with identifying the point at which physical site works (as distinct from office design and planning) commence, then it follows that: (a) the reference to ‘building, engineering or construction work’ is to a process and not to an outcome; (b) that process is ‘physically’ commenced by the application of physical labour on the land to which the consent applies; (c) so long as the labour is for the purpose of building, engineering or construction work (and relevantly relates to the development the subject of the consent), it satisfies the statutory requirements; (d) as the work is the process rather than an outcome of the process, it is irrelevant that it occasions no material change

to the land, is impermanent or is of limited or modest extent. These principles, it was submitted, are consistent with the decision of Talbot J in Besmaw Pty Limited v Sutherland Shire Council (2003) 127 LGERA 413 at 432–6. 73 It was further submitted that the natural and ordinary meaning of the word ‘engineering’ included surveying. … … 78 It is at this point that the following passage in the judgment of Giles JA in Green is of some relevance. In that case the relevant activities relied upon by the appellant as engineering or construction work preparatory to carrying out the development the subject of the consent, comprised pegging out, clearing, excavation for footings, digging drainage trenches and making provision for silt control. The issue that arose was whether such activities constituted the erection of the approved building in the context of considering the need for development consent to their carrying out. As to that, Giles JA observed (at 250 [70]): ‘The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second dwelling on the appellant’s land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. The erection of the second dwelling would begin with clearing of the site, pegging out, and digging trenches for footings; then or at later times there would be silt control measures and the digging of trenches for drainage pipes. Clearing to make a garden or digging for a fish pond may not be erection of a building, but the totality of the activities and their purpose informs the nature of the activities: so in North Sydney Municipal Council v Middle Harbour Hardie J said (at 45) that ‘The laying of the foundation was the most important and substantial part of the

work; it was fundamental to and the first essential step in the building process’.’ [Emphasis added] 79 The point made by Giles JA in the above passage is of twofold relevance to the present case. Firstly, there is his Honour’s conclusion that the erection of a building commences or begins with the clearing of the site followed by the pegging out of the building, a form of survey. Secondly, there is the notion (which is relevant to the second issue in this case) that it is unrealistic to sever those first steps in the process from later steps where all are necessary parts of that process, a matter to which I shall return. 80 In my opinion, the submissions of Tovedale should be accepted. In Richard, Talbot J correctly held that physical work on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks including the centre points of an approved subdivision road were part of the engineering work required for the establishment and construction of the subdivision. … 83 In my opinion, the expression ‘engineering work’ in its context of forming part of the composite phrase ‘building, engineering or construction work’, should be given a broad meaning to include all those activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. There can be no doubt that engineering as such can involve many different elements: relevantly with respect to a subdivision, it involves civil engineering work such as the design and (possibly) the construction of roads, sewerage systems, drainage and the like. 84 But once consent is granted for a subdivision, the implementation of that consent ultimately resulting in the construction of the subdivision roads, drainage and sewer lines as well as the laying out of the allotments in accordance with the approved layout, requires as a necessary first step in the

engineering or construction of that subdivision, including the physical works contemplated thereby, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. This would accord with common sense and industry practice. … 85 The carrying out of survey work to establish the correct location of these elements, in my opinion, is capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. Accordingly, it follows that the natural and ordinary meaning of the expression ‘engineering work’ in the context relevant to the present issue is capable of including physical survey work of the nature and extent of that the subject of these appeals. 86 That is not to say that any survey work, albeit of a physical nature, would so qualify. Simply entering land in respect of which a subdivision has been approved and knocking in one or two pegs would not, in my view, necessarily qualify. There is an element of fact and degree in each case. Although in Besmaw Talbot J (at 436 [112]) observed that once Parliament had decided to delete the requirement of substantiality, there was little room for an argument that the works must not be de minimus, and that it was therefore reasonable to exclude any test of the degree and extent of the work under the present statutory regime, nonetheless the requirement that the relevant work relate to the approved subdivision requires a real nexus between them. In particular, the concept that the work must be ‘physically commenced’, requires physical activity which involves an appearance of reality and which is not merely a sham. In other words, the relevant work must be more than merely notional or equivocal in that it must truly be work relating in a real sense to that which has been approved: cf Besmaw at 436 [111]. … 88 Given the obvious difference between the expressions ‘substantially commenced’ and ‘physically commenced’, in my opinion the only statutory requirement is that the relevant work is

commenced upon the land in a physical sense (as was clearly the position in the present cases). What is to be distinguished is work which is not physically commenced on the relevant land but is offsite work such as design and planning work. In my respectful opinion, Cowdroy J went too far when he held that the engineering work must result in a material change to the physical nature of the land. The statutory provisions contain no such requirement.” In relation to the second issue of whether preparatory work is excluded from engineering work for purposes of meeting the requirement of physical commencement of a development consent, Tobias JA held at paragraphs [100]–[109], [111]–[113] and [117]: “100 Once it is determined that the work relied upon falls within the expression ‘building, engineering or construction work’ and has been ‘physically commenced on the land to which the consent applies’, the only remaining issue is whether that work was work ‘relating to’ the subdivision, the subject of the development consent. 101 In the present cases the primary judge relied heavily on the conclusion of Cripps J in Smith that the excavation of the land to a depth of between 600–900mm over an area of 450m2 was an isolated work that had no real relation to the erection of the residential flat building the subject of the consent as it was an end in itself carried out for the purpose of inspecting the site to determine the design of the basement. Thus in the present cases the primary judge held that the relevant survey work was ‘merely preparatory’ as it had been undertaken for the purpose of enabling design, engineering and survey plans to be prepared (in Hunter) and for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works (in Tovedale). 102 No doubt his Honour was correct in finding that at least some of the survey work was undertaken for the purpose referred to. But it was equally true that the work related to the approved subdivision. In Hunter, the primary judge expressly so found when he said (at [46]) that the relevant work

‘related to the subdivision approved by the development consent, in the sense that they were undertaken for a purpose relating to the approved subdivision.’ 103 It was because of the so-called ‘judicial gloss’ placed upon the statutory formula by cases such as Smith that the primary judge considered that it excluded engineering work that was ‘merely preparatory’ because such work did not relate to the approved development. Although his Honour made no similar finding in Tovedale, contenting himself with the conclusion that the survey work was undertaken for the purpose of preparing engineering plans for the subdivision roadworks and sewerage works, nonetheless there can be no doubt on the facts as found by his Honour that the survey work in question related to the approved subdivision in the sense that it was undertaken for a purpose relating to it. 104 I accept that the ambit of the expression ‘relating to’ depends upon the context in which it appears: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487–8 [68] and [69]. It involves, at the very least some real relationship or connection between the work and the subdivision in respect of which the consent has been granted. In my opinion, the required connection or relationship is satisfied if the relevant work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent. 105 In the present cases, as Tovedale submits, the primary judge, on the basis of authorities decided with respect to a different statutory formulation (apart from Smith), has placed ‘preparatory work’ into a separate and independent category of work which, even if it is building, engineering or construction work, cannot qualify to prevent the consent lapsing even though it is physically commenced upon the land to which the consent applies. 106 As Tovedale also submits, work may be preparatory in a

number of different senses. Normally one would regard work as ‘preparatory’ if, chronologically speaking, it was work required to be performed prior to some other work being performed. But if the former is building, engineering or construction work and if it is a necessary step in the process which either expressly or by implication is authorised by the consent, then that is the end of the enquiry. No warrant exists for introducing into the expression ‘building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies’, an exception in the case of work which is regarded as preparatory in the above sense where it otherwise meets the elements of the statutory formula. In my opinion, there is no warrant for the imposition of such a gloss upon what are relatively unambiguous words. 107 Shoalhaven and Cessnock sought to justify the primary judge’s decision on the basis that to characterise the work as preparatory is merely shorthand for saying that it is not part of the approved development and accordingly cannot constitute a commencement of it. They submitted that although the survey work may well have been necessarily incidental to the implementation of the consent, it was not part of the work consented to. In particular, it was submitted that where the work does not form any part of that for which consent has been granted because that work itself does not need consent, then it cannot be seen as capable of amounting to the physical commencement of the approved subdivision. It is the kind of work, so it was submitted, that could be lawfully carried out even if there were no consent in existence. 108 If the foregoing submissions are intended to assert that the subject survey work and, in the case of Hunter, the additional geotechnical investigation work, were not part of the approved subdivision works, then I would respectfully disagree with it. As Mahoney J said in Eckold (at 153): ‘A development consent may by implication be a consent to matters incidental to the development.’

109 In my view a development consent to a subdivision involving the laying out of lots and roads and requiring by way of conditions (as in the present cases) the construction of those roads as well as drainage, sewerage and other facilities, either expressly or by necessary implication authorises any physical work on the land that is necessary to enable the consent to be implemented in accordance with those conditions. Neither Cessnock nor Shoalhaven has directly suggested that the carrying out of the relevant survey work and/or geotechnical investigation work constituted of itself development requiring development consent. Although it was submitted that the subject work was ‘not part of the work consented to’ in that it did not involve the actual construction of roadworks or drainage or sewerage works, the consents must be taken to have authorised (so far as the EPA Act is concerned) not only the construction of the works the subject of the consent, but also the carrying out of engineering work associated therewith and/or which was necessary to enable those works to be undertaken. Survey and geotechnical investigation work is such work. … 111 It follows from the foregoing that in my opinion there is no room in ss 99(2) and 95(4) for the concept of work which is ‘merely preparatory’. The primary judge erred in perpetuating that concept, which has its origin in cases relating to the now abandoned statutory requirement of ‘substantial commencement’. To seek to ascertain whether the relevant work is preparatory diverts the court from the only relevant questions, namely, (a) was the work relied on building, engineering or construction work; if so, (b) did it relate to the approved development; if so, (c) was it physically commenced on the land to which the consent applied prior to the relevant lapsing date? 112 The admonition of Giles JA in Green, that it is necessary to

adhere to the language of ss 99(2) or 95(4) (as the case requires) which speaks not of substantial commencement but of physical commencement, should be adhered to. There must, as Cripps J said in Smith, be a ‘real’ relationship between the work relied upon as having been physically commenced and the development, be it a building or subdivision, the subject of the consent. 113 However I would, with respect, part company with Cripps J and the adoption of his approach by the primary judge insofar as the former considered that there could be no ‘real relation’ between the excavation work in Smith and the erection of the residential flat building, the only work the subject of the consent in that case. It seems to me that the excavation served two purposes. The first was that it was necessary to provide for the basement of the approved building. It does not seem to have been suggested in that case that the excavation was not located in the position where the basement was to be provided according to the approved plans. The second was that the excavation would enable inspection of the underlying material of the site which would inform the engineering design of the basement. The existence of the first purpose would, in my opinion, have been sufficient to justify the conclusion that there was a ‘real relation’ between the work and the approved building. It may, therefore, be the case that I would have come to a different conclusion on the facts to that of Cripps J. … 117 So in the present cases, I accept that the survey work and the geotechnical investigation work were preparatory to, but necessary for, the commencement of the actual road and sewerage works. They were also carried out for the purpose of facilitating the further detailed engineering design work. The latter purpose did not, on the approach I have adopted, disqualify the work from being carried out for a purpose which bore a real relationship to the approved subdivision works. The primary judge’s decision to the contrary was, with respect, in error.”

Conclusions The following conclusions may be derived from Hunter Brokerage: • Physical works on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks are part of engineering works required for a subdivision. • The work must be physical activity that is commenced, as distinct from office design and planning. There is an element of fact and degree in deciding what work will qualify in a particular case. • It is irrelevant that the work results in no material change to the land, is impermanent or is of limited or modest extent. • The process of the erection of a building commences with the clearing of the site and pegging out the building, being a form of survey. It is unrealistic to sever these initial steps in the process from later steps. • Engineering work should be given a broad meaning to include all those activities associated with or forming part of the discipline of engineering applicable to a subdivision. • With the change in the test from substantial commencement to physical commencement, there is little room to argue that words must not be de minimus, hence, the degree and extent of the work is not relevant. • The work must relate to the building, subdivision or work the subject of the consent, and there needs to be a real nexus between them. This test is satisfied if the work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of land, or the carrying out of the work, which is authorised by the consent. • The work must not be merely a sham. It needs to be more than merely notional or equivocal.

• There is no basis for excluding from building, engineering or construction work relating to what is approved by the consent, where that work is merely preparatory work. Thus, the judicial gloss in Smith v Wyong is incorrect. The decision in Hunter Brokerage significantly changed the preexisting judicial approaches towards physical commencement, effectively rendering Smith v Wyong, and the line of cases following that decision, no longer good authority. It is interesting that, despite the significant change in the test from “substantially commenced” to “physically commenced” with the introduction of the EPA Act, the courts cling to principles derived from the former law despite their explicit change by the legislature. As a result of Hunter Brokerage, the test questions for physical commencement are as follows: • Is the work undertaken building, construction or engineering work? • Has the work physically commenced on the land to which the consent applies, or is the work a sham or notional or equivocal act? • Is the work related to the building, subdivision or work (the subject of the consent)? If this is the case, the consent has not lapsed, even if the work is de minimus, preparatory or not continuous, provided that the work: • is not in breach of a condition of consent (Iron Gates) • is authorised by the development consent (Green v Kogarah) • is not otherwise in breach of the EPA Act, such as for absence of a construction certificate (Detala). The requirement, physical commencement on the land to which the consent applies, refers to all land upon which required by or authorised by the consent are to be carried out, including the conditions of the consent, which may have the effect of extending the

land to which the consent applies beyond that provided in the DA (Boral v Wingecarribee). Where a condition of development consent provided for a lapsing period of less than five years, a modification of the consent to alter the condition back to the five-year maximum would be both ineffective and beyond power for the following reasons: • The fixing of the lapsing period of a consent is a one-off exercise done at the time of, and in the granting of, consent and subsequently, s 95 and s 95A operate to cause the consent to lapse. No s 96 modification can thereafter alter the lapsing period. • Section 95A provides the exhaustive means for extending the lapsing period, and s 96 does not provide an alternative power. (Kinder Investments) Section 95A of the EPA Act authorises the consent authority to extend the period after which a development consent lapses by one year where the original consent provided for a lapsing period of less than five years. However, s 95A(2) requires that, in granting such an extension, the consent authority needs to be satisfied that the applicant has shown “good cause”.

¶65-130 Derodo Pty Ltd v Ku-ring-gai Municipal Council The meaning of “good cause” in this context was considered in Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGRA 1 (Derodo) by Bignold J in the NSWLEC.4 The basis of the applicant’s claim that it had shown “good cause” to extend the life of a consent was based on financial difficulties experienced by the applicant, legal challenges to the validity of the consent and an unwillingness to risk funds on commencing the development while appeals were unresolved. Bignold J held at p 6–7: “The expression ‘show good cause’ is a familiar expression of wide import frequently employed to found a claim or give jurisdiction for the exercise of a statutory discretion (either judicial

or administrative in nature). I can see no good or compelling reason or justification either as a matter of statutory text, context or object, for limiting the scope or ambit of so wide an expression. In particular, I cannot accept the Council’s submission that the expression should be read in context, as requiring satisfactory proof that the development will or is likely to be commenced within the extended lapsing period. In rejecting the Council’s argument concerning the true meaning of the expression ‘show good cause’ I do not think I should attempt to judicially define or put a judicial gloss on this familiar statutory expression beyond [p 7] stating the obvious implication that arises from the statutory text, context and object, that whatever in any given case, constitutes ‘good cause’ must in some manner relate to considerations involving the implementation of the development consent (and more particularly why more than the normal two year lapsing period is required) being considerations that generally will emerge at a time after the development consent has been granted. However beyond these general observations, it is unnecessary and unwise to venture in the process of statutory construction of what is after all a familiar statutory expression (found in many contexts) and being an expression of wide import. In my judgment the stated grounds upon which the applicants sought approval from the Council for the extended lapsing period (which grounds have been essentially maintained on the hearing of the appeal) are legally capable of being ‘good cause’ within the meaning of s 99(3). However whether the application should be approved depends upon the exercise of administrative discretion and it is possible that in that exercise the question of the likelihood of the consent being implemented may be a relevant consideration.” Conclusion The following conclusion may be derived from the decision in Derodo:

• There is no reason to limit the scope and ambit of the expression “good cause” in relation to what an applicant is required to satisfy a consent authority of in order to obtain an extension in the lapsing period of a consent under s 95A. The consent authority does not require proof that the development will be commenced within the extended period. “Good cause” must relate to considerations involved in the implementation of a development consent. Grounds such as the financial difficulties of the applicant and legal challenges to the consent are capable of demonstrating “good cause” in order to extend the lapsing period.

Footnotes 4

The author wishes to acknowledge the perceptive insights of Mr Thomas Kwok in relation to this issue.

¶65-140 Principles regarding the lapsing of a development consent The key principles derived from the discussion on the lapsing of a development consent are as follows: Principle 1: A development consent operates only to remove a hurdle to a development. It therefore removes a prohibition to that development being carried out. However, it does not require that development be carried out, nor does it impose any obligation upon the applicant or any person with the benefit of a development consent to carry out the development. Having obtained a development consent, an applicant is entitled to do nothing to act upon the consent. This may be because the applicant no longer wishes to proceed, it may be because it is no longer economically feasible, it may be the conditions imposed by the consent authority are unacceptable (either with or without a merit appeal) or it may be that the applicant no longer has lawful access to the land (the subject of the consent). It is important to recognise that there is no compulsion or requirement to act upon a development consent, despite the fact it has been granted and is effective and operational. Principle 2: A development consent lapses five years after the date from which it operates (or a lesser period if specified in the consent, other than in relation to a staged development consent) unless the following occurs: • In the case of a consent for the erection of a building, the subdivision of land, or the carrying out of a work, building engineering or construction work relating to the consent is

physically commenced before that date. • In the case of a consent for the use of any land, building or work, the use has actually commenced before that date. (Section 95 EPA Act) Principle 3: Where a development consent provides for its lapsing to a period less than five years, the consent authority may grant an extension of one year if it is satisfied that the applicant has shown good cause. An applicant for an extension of the lapsing period has a right of merit appeal to the NSWLEC if the applicant is dissatisfied with the determination of the consent authority or the consent authority has not determined the request within 40 days (s 95A EPA Act). Principle 4: There is no reason to limit the scope and ambit of the expression “good cause” in relation to what an applicant is required to satisfy a consent authority of in order to obtain an extension in the lapsing period of a consent under s 95A. The consent authority does not require proof that the development will be commenced within the extended period. “Good cause” must relate to considerations involved in the implementation of a development consent. Grounds, such as the financial difficulties of the applicant and legal challenges to the consent, are capable of demonstrating “good cause” in order to extend the lapsing period (Derodo). Principle 5: The test of a development being “physically commenced” has the following features: • Physical works on the land involving the application of surveying skills resulting in the taking of levels, placing of pegs, the removal of vegetation and the establishment of permanent survey marks are part of engineering works required for a subdivision. • The work must be physical activity that is commenced as distinct from office design and planning. There is an element of fact and degree in deciding what work will qualify in a particular case. • It is irrelevant that the work results in no material change to the land, is impermanent or is of limited or moderate extent.

• The process of the erection of a building commences with the clearing of the site and pegging out the building, being a form of survey. It is unrealistic to sever these initial steps in the process from later steps. • Engineering work should be given a broad meaning to include all those activities associated with or forming part of the discipline of engineering applicable to a subdivision. • With the change in the text from substantial commencement to physical commencement, there is little room to argue that words must not be de minimus, hence, the degree and extent of the work is not relevant. • The work must relate to the building, subdivision or work (the subject of the consent), and there needs to be a real nexus between them. This test is satisfied if the work is a necessary step in, or part of, the process required for, or involved in, the erection of the building, the subdivision of land, or the carrying out of the work, which is authorised by the consent. • The work must not be merely a sham. It needs to be more than merely notional or equivocal. • There is no basis for excluding from building, engineering or construction work relating to what is approved by the consent, where that work is merely preparatory work. Thus, the judicial gloss in Smith v Wyong is incorrect. (Hunter Brokerage) Principle 6: Work which is undertaken which is in breach of a condition of the consent and hence, prohibited and illegal, cannot be work relating to the development (the subject of the consent). Such work cannot be relied upon to physically commence a consent (Iron Gates). Principal 7: Activities which are undertaken to satisfy the requirement of physical commencement to avoid the lapsing of a development

consent, do not satisfy that requirement if they are prohibited by a condition of the development consent (as in Iron Gates), or alternatively, if they are not authorised by the development consent (Green v Kogarah). Principle 8: Where activities are undertaken to meet the test of physical commencement to avoid a development consent from lapsing, if such activities require a construction certificate under the EPA Act and none has been granted, such works are illegal for breach of s 81A(4) of the EPA Act, such activities do not constitute physical commencement under the principles in Iron Gates (Detala). Principle 9: It is unlikely that the requirement that work undertaken to achieve physical commencement should not be in breach of the consent, or not authorised by a consent or otherwise in breach of the EPA Act extends to breaches of legislation other than the EPA Act (Ke-Su Investments). Principle 10: In summary, the test questions for physical commencement are as follows: • Is the work undertaken building, construction or engineering work? • Has the work physically commenced on the land to which the consent applies, or is the work a sham or a notional or equivocal act? • Is the work related to the building, subdivision or work (the subject of the consent)? (Hunter Brokerage) If this is the case, the consent has not lapsed, even if the work is de minimus, preparatory or not continuous, provided that the work: • is not in breach of a condition of consent (Iron Gates) • is authorised by the development consent (Green v Kogarah), and • is not otherwise in breach of the EPA Act, such as for absence of a construction certificate (Detala).

MODIFICATION OF A DEVELOPMENT CONSENT ¶66-010 Types of modifications Provision is made for the modification of a development consent in s 96 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Section 96 provides for three types of modifications: (1) modifications involving minor error, description or miscalculation (s 96(1)) (2) modifications involving minimal environmental impact (s 96(1)), and (3) other modifications (s 96(2)). The last two types of modifications have a threshold test which requires that the consent authority is satisfied that the development, as modified, is “substantially the same development” as that for which consent was originally granted. In addition, the second type of modification requires that the consent authority risk is satisfied that the proposed modification is of minimal environmental impact. Under s 96(8), the court can itself modify a consent granted by it under s 96 with the administrative functions being undertaken by the consent authority. Alternatively, s 96AA makes provision for modification by a consent authority of a consent granted by the Land and Environment Court of NSW (NSWLEC) after a merit appeal. An application may be made to a consent authority to modify a consent granted by the court, similar to the process in s 96(2). For a consent authority to modify a court-granted consent, there is no power similar to that in s 96(1) and (1A) to modify consents using a streamlined approach if there is an error or misdescription or minimal environmental impact. Any modification application for a consent authority to modify a court-granted consent is required to be considered under s 96AA involving a pathway similar to s 96(2).

Section 96AB provides for a process of internal review of a decision of a consent authority in the determination by a consent authority on a modification application under s 96 and s 96AA, similar to that provided in relation to development applications (DAs) by s 82A. However, like s 82A, such a review may only occur if the council is the consent authority and it may not occur if it relates to a complying development certificate or applications to modify consents for designated development, integrated development, Crown development or a deemed refusal. The procedures for a review and the effect of review decisions as provided in s 82C and 82D apply to a review under s 96AB. An applicant for a modification of a development consent under s 96 and s 96AA who is dissatisfied with the determination of that application has a right of merit appeal to the NSWLEC within six months of the notice of determination or the deemed refusal date under s 97AA of the EPA Act. In the original 1979 Act, the power to modify a development consent was contained in s 102 up until the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments), where after the power was contained in s 96.

¶66-020 Key differences between the modification power in the 1979 Act and in the current form of s 96 The key differences between the modification power in the original 1979 Act and in the current form of s 96 are as follows: • The original 1979 Act had a single process for modifications, with no streamlined pathways for modifications involving minor error or misdescription, or for modifications involving minimal environmental impact. • For development consents granted by the court on appeal, that consent could only be modified by the court itself. • The scope of the power to modify was originally constrained in

three ways: (1) the power was limited to modify on “details of the consent” (2) the consent authority needed to be satisfied that the development was substantially the same development (but it did not explicitly provide this to mean the consent as originally granted), and (3) The consent authority needed to be satisfied that “no prejudice” was caused to any person who objected to the DA (the subject of the consent) (Note: this was not limited to objectors only in relation to designated development). In the current provisions, the limit on the power to modify only “details of the consent” and the “no prejudice” requirement have been removed. • The original 1979 Act had no process for internal review of discussions on modification applications. In the time pre-EPA Act, under Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919), there was no specific provision to modify a development consent granted under the prescribed planning scheme, nor to modify an interim development approval. The reason for this was that no special provision was necessary as any changes or modifications could have been effected by lodging and obtaining approval for a new development consent or interim development approval. The reason for the inclusion of the specific provision for modification in s 102 of the 1979 EPA Act was to provide a dispensation from the information required to be submitted with a new DA for modifications if they were not necessary, given that the power to modify only applied if the consent, as modified, was substantially the same development as in the consent. This was particularly the case for modifications of consents relating to designated development. Without a specific process for modifications, as in s 102 originally, such modifications if they related to designated development would have required a full Environmental Impact Statement (EIS). Thus, a

modification to a consent for a large open cut coal mine or a large aluminium smelter to construct an additional workshop shed would have required a full EIS if lodged as a new DA. Thus, the rationale was to provide, in s 102, a truncated pathway for a class of modifications not considered to be of such import as to require the full documentation requirements as would apply to a DA. Hence, s 102 was not intended to provide the exclusive power for modifying a development consent, but rather, it provided an option for a truncated process in certain circumstances. The option of lodging a new DA has always been retained. In the previous discussion in Chapters ¶31, ¶54 and ¶55 regarding DAs and the nature of development consents, the following propositions were discussed in detail and are important in relation to the consideration of modifications under s 96: • a DA must relate to an application to carry out “development” as defined in s 4(1) of the EPA Act (Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780) (Gordon & Valich) • a modification application can seek to modify a condition of consent where that condition does not relate to “development” as defined in s 4(1) (see s 96) • a DA may be lodged in relation to any element of the definition of “development” and in particular, any element of the definition of “building” in s 4(1), including part of a building and part of a structure (Seyffer v Shoalhaven City Council [2006] NSWLEC 564) • more than one development consent can apply to the same land and co-exist and operate according to their terms simultaneously (Pilkington v Secretary of State for the Environment [1974] 1 All ER 283; Seyffer v Shoalhaven City Council [2006] NSWLEC 564; Waverley Council v Hairis Architects [2002] NSWLEC 180 (Waverley v Hairis)) • a DA may be lodged to change part of a development the subject of a consent, even if that development has not as yet been built or

undertaken (see Waverley v Hairis), and • s 96 is not the exclusive power to modify a development consent, but is additional to the power to modify a development consent by means of another DA (see Waverley v Hairis)

¶66-030 Principal amendments since enactment of 1979 Environmental Planning and Assessment Act provisions in s 102 Since the enactment of the 1979 EPA Act provisions in s 102, the following principal amendments have been made relating to the modification of development consents: • In the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW), s 102 was amended to remove the limitation on the power of amendment to relate only to “details” of a consent and to remove the right of merit appeal to the court in relation to a modification for which the court was deemed to be the consent authority. In removing the reference to “details” of a consent, Parliament was responding to the interpretation of that constraint by the NSW Court of Appeal in Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 (Ilenace). • In the Environmental Planning and Assessment (Amendment) Act 1989 No 32 (NSW), s 102 was amended to require notice to be given to persons who made submissions on a DA for advertised development of a modification application. • In the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 No 90 (NSW), s 102 was amended to require copies of modifications of consents granted by the court on appeal to be also lodged with the council. Also, s 102 was amended to require that the consent authority take into consideration the standard heads of consideration for a DA that were relevant to the modification application. • In the 1997 Amendments, Pt 4 was completely replaced by a new

Pt 4, including the former s 102, which was replaced by s 96 dealing with modifications. The 1997 Amendments inserted two types of modifications, one being minor modifications and the second being for other modifications. The requirement to be satisfied of “no prejudice” to persons who objected was removed, thereby significantly broadening the scope of matters which could be subject to modification applications. • In the Environmental Planning and Assessment Amendment Act 1999 No 72 (NSW) (1999 Amendments), s 96 was amended to add a third type of modification pathway for modifications involving minimal environmental impact in s 96(1A) and to make it clear that the test of “substantially the same development” required a comparison between the development as proposed to be modified and the consent as originally granted and not as last modified, reversing in part the decision in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 (Michael Standley). • In the Land and Environment Court Amendment Act 2002 No 76 (NSW), the issue of modifications of development consents granted by the court was reviewed. Sections 96(8) and 96AA were inserted to provide two alternative avenues to modify a consent given by the court: (1) direct to the court, with the council undertaking the consultation role with concurring bodies or approval bodies (in the case of integrated development), and any public modification process (s 96(8)), or (2) to the council (s 96AA). These two alternative avenues to modify a court-granted consent are at the option of the applicant and provide that councils can relieve the court of determining modifications that are likely to be uncontroversial. • In the Environmental Planning and Assessment Amendment Act

2008 No 36 (NSW) (2008 Amendments), s 96 was amended to overturn court decisions that permitted s 96 modifications to approve retrospectively development already undertaken and to require that modifications comply with all applicable Environmental Planning Instruments (EPIs), thus overriding the decision in Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 (Lido) and Michael Standley (in part). In addition, provisions were added to s 96 and 96AA in relation to deemed refusals of modification applications. These provisions, although enacted by Parliament, were not proclaimed to commenced and were repealed by the Planning Appeals Legislation Amendment Act 2010 No 120 (NSW), Sch 1 [15]–[16] and Sch 3.1 [1]. • In the Planning Appeals Legislation Amendment Act 2010 No 120 (NSW), as indicated above, the amendments to the modification provisions which were made in the 2008 Amendments, but had never commenced, were instead repealed. Sections 96(6) and 96AA(3) were inserted to provide for the making of regulations regarding deemed refusals of modification applications.

¶66-040 Provision for aspects of modifications The Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) makes provision for aspects of modifications, including the following: • the contents of a modification application (cl 115) • owner’s consent if the applicant is not the owner (cl 115(1)(h)) • for modifications involving minimal environmental impact, advertising requirements in a Development Control Plan (DCP) must be followed (cl 117) • for other modification applications under s 96(2) relating to designated development, State significant development (SSD) or other advertised development, public advertisement for at least

14 days and with public submissions sought (cl 188) • for modification applications that are not for designated development, SSD or other advertised development, public advertisement for a period of 14 days, or as required by a council in accordance with any DCP (cl 119) • provision of notice to concurrence authorities and approval bodies (in the case of integrated development) (cl 120), and • provision of notice of determination to the applicant (cl 122). A deemed refusal arises where the consent authority fails to determine a modification within 40 days (cl 122A). The EPA Act and the EPA Regulation make no provisions regarding an amendment of a s 96 modification application before its determination. However, in Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 (Jaimee v City of Sydney), Craig J in the NSWLEC held that the power to determine a s 96 application extends to allowing that application to be amended prior to determination.

¶66-050 Key issues arising from s 96 The key questions arising from the operation of s 96 are as follows: • What is a modification? • Is s 96 the exclusive power to modify a consent? • Who can lodge a modification application? • Does the requirement for owner’s consent apply to all owners of the land (the subject of the consent) or only owners of land to which the modification relates? • Can a modification application apply to land not subject to the original development consent? • For a modification under s 96(1A), what does the threshold

constraint of “minimal environmental impact” mean? • For a modification under s 92(2), what does the threshold constraint of “substantially the same development” mean, and against what is the modified development compared? • Can a modification application relate to development already undertaken retrospectively? • What are the heads of consideration applicable to a modification application? • Can a modification application contravene a development standard? Does State Environmental Planning Policy No 1 — Development Standards (SEPP 1) apply? Or, can a modification be approved, even if it is contrary to an EPI? • Can a consent authority impose conditions on a modification application? And if so, what is the scope associated with such conditions? While a DA must seek approval for “development”, a s 96 modification application is to “modify a development consent”. As such, it can alter or change the conditions without seeking approval for any development. Hence, it can seek to alter a condition relating to development contributions which do not involve development. Alternatively, it can seek to alter the development (the subject of the consent) by adding, deleting or varying the approved development and thus, involve development (see the earlier discussion in Chapter ¶31 on “What is a development application and when is it required?” and the decision — Gordon & Valich).

¶66-060 Waverley Council v Hairis Architects In Waverley v Hairis, Talbot J in the NSWLEC heard an application for a declaration, in part, that a DA could not be made to modify or alter an existing development consent other than by using the modification provisions under s 96 of the EPA Act, or by lodging a new DA for the

entire proposal. Development consent had been granted in 1998 (Consent DA 133/98) for the redevelopment of the Bondi Diggers Club to provide for a mixed development of 14 residential apartments, car parking and a club. The site was sold and a DA was then lodged in 2002 (Consent DA 138/02) seeking to change the club component to further apartments and parking. It was common ground that the proposed changes to the 1998 consent were not substantially the same development as originally approved and hence, the proposal could not meet the threshold test for a s 96 modification application. The Council contended that the changes to the club component of the development could only be achieved either by a s 96 modification (a course not available as the proposal was not substantially the same development as originally approved), or by a fresh DA for the entire project, not just the club component. In this instance, the redevelopment had not commenced and so the changes sought to the club component related to a component of an approved but unbuilt development. Talbot J held at paragraphs [14] and [31] as follows: “14 Mr Tobias QC, who appears on behalf of the respondent, does not agree that there are only two ways open to the respondent whereby it can achieve the change from the club use to the residential use at the lower levels of the building. His contention is that Redwood, as the present owner, is also entitled to make a development application to change the use at the lower levels of the proposed building, together with the appropriate structural changes. In that case, if the consent authority was so minded, a condition could be imposed pursuant to s.80A(1)(b) of the EPA Act which provides, inter alia and relevantly to the present case, that a condition of development consent may be imposed if it requires the modification of a consent granted under the Act. According to Mr Tobias, the use of s 96 is a matter of choice. A developer seeking to change an existing consent can pursue an approval either through s 76A or s 96 provided that the limitation imposed by s 96 can be met. …

31 If one has regard to s 96 (formerly s 102) as being facilitative in the sense that Bignold J categorised it in Progress and Securities, and as the Court now does, then the making of a separate development application pursuant to s 78A cannot be regarded as a circumvention of the regime established by s 96. The evaluation of a fresh development application involves significantly more rigorous assessment than prescribed by the regime under s 96.” Conclusions The following conclusions may be derived from Waverley v Hairis: • A DA may be lodged to change or alter parts of an existing development or parts of a development, subject to a development consent which is in force but has not been implemented. Section 96 of the EPA Act is facultative for an applicant, who may alter a development consent using either a s 96 modification or a new DA. • Where an application is made to modify a development consent under s 96 and 96AA there are two fundamental features: (1) To lodge a modification application, there must be a development consent in place at the time of application and approval. Without a development consent in place, there is nothing to modify and hence, the existence of a development consent is a fundamental foundation for the power to modify. In Lido at p 3, Talbot J held: “Section 102 [now s 96] applies only after a consent authority has granted development consent. The application to modify the consent presupposes the existence of the latter.” A development consent in place means a development consent which has been granted and still remains valid and has not lapsed and hence, has not been declared invalid by a court, nor has lapsed under s 95. However, a development consent which has been granted but is subject to a merit appeal may be modified (see Swadling v Sutherland Shire

Council (1994) 82 LGERA 431 (Swadling v Sutherland) at p 434–436 and Lido at p 3). (2) Where a modification application has been approved, the modification is expressly not the granting of a development consent by s 96(4). The modification simply becomes part of the development consent in existence before the modification was approved. As Talbot J held in Lido at p 3: “… modification of a development consent in accordance with s 102 [now s 96] shall not be construed as the granting of a development consent, although thereafter the development consent so modified so to be construed as a development consent for the purposes of the Act.” This has one significant application. As a modification once approved (and subsequent to any exercise of the right of merit appeal) becomes part of the pre-existing development consent, the applicant has no right to decide not to proceed unless the applicant ceases to rely on the development consent as a whole (see Swadling v Sutherland at p 436).

¶66-070 Modification not a radical transformation In Ilenace, Samuels JA in the NSW Court of Appeal held at p 421: “The ordinary meaning of ‘modify’ presents little difficulty. The Shorter Oxford English Dictionary provides a number of definitions, the most useful of which for present purposes is ‘to alter without radical transformation’.” The definition of “modify” in Ilenace was approved by the NSW Court of Appeal in Michael Standley at 439 for Mason P (with Stein JA and Sheppard AJA agreeing). This definition was also referred in the context of Pt 5 approvals by the NSW Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 (Transport Action Group) at p 151–152 per Mason P who adopted the definition of “modify” that was proposed in Ilenace. Sheller JA held at p 171

(paragraph [163]): “163. For the reasons the President has given, I agree that the changes to the original proposed activity were, within the meaning of s 112(4)(b)(i) of the EPA Act, modifications. I think it is correct to say that what there was meant by ‘modify’ was a change which might add to or subtract from the proposed activity, the substance of which continued, and which was less than its wholesale rejection and replacement: see generally Legg v Inter London Education Authority [1972] 1 WLR 1245 at 1256; Qantas Airways v Aravco Ltd (1995) 185 CLR 43 at 61; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474; 97 LGERA 433 at 439–440.” Fitzgerald JA held at p 191 (paragraph [205]): “205 The parties equated a modification within the meaning of subs 112(4)(b) to an alteration which does not effect a ‘radical’ transformation: Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414, 421; (1984) 54 LGRA 217, 223–224, North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 474; 97 LGERA 433, 438. That meaning does not appear in the Australian Concise Oxford Dictionary (2nd ed) although I am unsure that an alteration which is significant or substantial but not ‘radical’, which I take to mean ‘fundamental’, is properly described as a modification, especially having regard to the use of the verb ‘modify’ elsewhere in the EPA Act (eg, ss 102 and 103 of the EPA Act). I will proceed on the basis adopted by the parties, which at least is consistent with a legislative intent that the general statutory process of environmental assessment is to be followed in relation to an altered activity except in specified limited circumstances. Thus, the parties effectively agreed that subs 112(4)(b)(i) does not apply to a proposed alteration which would be more than a modification of an activity even if the alteration would eliminate or reduce the detrimental effect of the activity on the environment. Of course, even an alteration which is only a modification of an activity is impermissible under subs 112(4)(b)(i) unless it will ‘eliminate or reduce the detrimental effect of the activity on the environment’. Limiting the power given

by subs 112(4) in this manner ensures an apposite compatibility between that subsection and the objects of the Act which are stated in s 5 and given effect in Pt 5.” In addition to the definition of “modify” as “alter without radical transformation”, Transport Action Group suggests the following two alternative definitions: (1) to change (either adding to or subtracting) from a development with the substance of the original continuing and amounting to something less than a wholesale rejection or replacement (per Sheller JA), and (2) to alter in a manner which is significant or substantial, even if it is not a radical or fundamental change (per Fitzgerald JA). Both of these alternatives suggest a different definition of “modify” than was indicated by Ilenace or by Mason P in Transport Action Group. The definition was also considered in the context of modifications of the major project approvals under the former Pt 3A of the EPA Act and under the former s 75W in Williams v Minister for Planning [2009] NSWLEC 5, where Biscoe J held at first instance in the NSWLEC that a modification of an approval under s 75W does not include a radical transformation of the development consent.

¶66-080 Barrick Australia Ltd v Williams On appeal to the NSW Court of Appeal in Barrick Australia Ltd v Williams [2009] NSWCA 275 (Barrick), Baston JA (with whom McColl JA agreed) noted that, unlike s 96, the former s 75W contained a definition of “modification of approval” in s 7W(1) and held at paragraphs [21], [24], [38] and [50]–[53]: “21 The purpose of the present analysis is not to identify with any degree of precision the scope of any restraints imposed on the power to modify under s 75W, but rather, assuming that such constraints exist, to consider on whom lights an obligation to

address those constraints. Unless they constitute objective factors to be determined by a court, their consideration must lie within the factors to be considered by the Director-General or the Minister, or both. In the latter class of cases, judicial review will be limited to determining whether an officer’s acceptance that a particular request falls within the terms of s 75W, is an opinion reasonably open in the circumstances. … 24 In Pt 4 the tight constraints imposed on modification of development consents were contained within a criterion which involved the satisfaction of the consent authority: there is no indication that ‘substantially the same development’ was an objective test to be applied by the courts. It was submitted that, in circumstances where a more flexible approach was adopted and where the consent authority was the Minister, it was for the Minister to be satisfied that the request fell within the scope of s 75W. … Resolution of jurisdictional issue 38 The preferred construction of s 75W is that it confers on the Minister an implicit obligation to be satisfied that the request falls within the scope of the section. There are a number of reasons for reaching that conclusion. ... 50 In the course of argument, senior counsel for the Minister suggested that there may well be a limit on the scope of a legitimate request under s 75W, based on the idea that the project which will be the subject of change under the proposal must be the same project and not a project which can properly be characterised as ‘new and different’. Senior counsel for Mr Williams, in response, characterised that terminology as unhelpful. If there were to be change, the result would be something ‘different’ and little assistance was to be derived from asking whether it constituted a ‘new’ project.

51 There was force in these criticisms, both of the language adopted by the primary judge of ‘radical transformation’ and the alternatives proffered by the Minister. Such difficulties are likely to arise with any descriptive phrase proffered by way of exegesis with respect to the statutory language. 52 There are two related reasons why this is so. First, the very concept of a project is amorphous in a sense which is not true of an object, such as a car. Although there will be circumstances in which it is not clear which descriptor applies, it is usually possible to distinguish between a modified vehicle and a replacement vehicle. By contrast, a project is, at least in part, a process and may be characterised or described from a variety of different perspectives. Secondly, because there are many varying uses of land, it is difficult to identify precise terminology which will apply across the broad range of potential projects. For these reasons, the Court should be wary of invitations to explain the statutory language. 53 The absence of precision in relation to what might constitute a modification of an approval has formed part of the reasoning for considering that the legislature did not intend that it be the subject of conclusive determination only by a court. As noted, the defined phrase means ‘changing the terms of an approval to carry out a project under this Part’. Although that is defined to include changing a condition of the approval, there is no clear dividing line between that which may constitute a condition and that which may constitute an element of the underlying project. ...” Sackville AJA, while agreeing with the orders made by the majority, applied different reasoning, finding that there was no requirement that an applicant’s request under s 75W needed to be a “modification of approval” (as defined) for the Minister to exercise the power, as the making of a request was not an essential precondition to the exercise of the power under s 75W (paragraph [62]). Further, Sackville AJA preferred not to express a view as to the proper meaning of “modification of approval” in s 75W (paragraph [64]). Conclusions

The following conclusions may be derived from Barrick: • The power to modify an approval under the former s 75W is not limited to changes which are not a radical transformation of the original approval. The scope of modifications under the former s 75W relates to matters contained within the definition of modification of approval in s 75W(1) and must involve changing all aspects of the project (the subject of the approval). • The requirement that a consent authority is satisfied that the development as modified is “substantially the same development” in s 96 is not an objective test to be applied by the courts and hence, it is not a jurisdictional fact. • Similarly, the modification power under the former s 75W is not a jurisdictional fact, but it rests with the Minister to be satisfied that a request falls within the scope of s 75W and judicial review is limited to whether the Minister’s conclusion was reasonably open to him. • The absence of a precise definition of modification in the legislation suggests that the legislature did not intend it to be the subject of conclusive determination only by a court. • A modification under s 75W is something intended to have limited environmental consequences. In contexts other than s 96, the definition of “modify” has real work to do, as the power is not otherwise constrained. However, in the context of s 96 and s 96AA where the power is constrained by the requirement for the consent authority to be satisfied that the development (as modified) will be substantially the same development as originally consented to, it appears the requirement to be “substantially the same development” is a subset of, and narrower than, the meaning of “modify”. Hence, given this additional constraint, the meaning of “modify” in s 96 and s 96AA appears to add nothing beyond what is meant by “substantially the same development”.

¶66-090 Progress and Securities Pty Ltd v North Sydney Municipal Council In Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 (Progress and Securities), Bignold SA in the NSWLEC heard a merit appeal against the refusal of Council to approve a modification application (then s 102) to modify a development consent to remove a condition requiring development contributions. The Council argued that a modification application was not available in a circumstance where the applicant was, in effect, seeking to appeal against the merits of the original consent. Bignold SA refused the appeal and held at p 240: “Moreover I do not accept the applicant’s broad submission that s 102 provides a truly alternative right of appeal to that provided by s 97. (This is because of the nature of the s 102 power which I shall shortly discuss.) However even on this basis I am unable to accept the respondent’s fundamental submission that the modification power conferred by s 102(1) does not apply to an application based upon dissatisfaction with the consent authority’s determination of a development application where that dissatisfaction would or could otherwise form the basis for an appeal to this Court under s 97. In my opinion there is no warrant for such a constrained or limited interpretation of the scope of the power conferred by s 102(1). I emphasise, however, that this conclusion solely addresses the scope of power. For reasons that I will soon develop I am of the opinion that much of what the respondent has relied on supporting its submission is relevant to the question of discretion relating to the exercise of that power. Accordingly I find that the ‘modification’ power conferred by s 102(1) is available to the applicant in the present case. …” Conclusions The following conclusions may be drawn from Progress and

Securities: • It is open to an applicant to seek to modify a development consent when an applicant could have exercised a right of merit appeal against the determination of the original consent. • However, as the then s 102 did not specify the relevant heads of consideration to be applied in the determination of a modification application, in exercising the discretion as to whether to approve a modification application, the following were relevant factors: – whether something had occurred subsequent to the original consent which might justify or require reconsideration of an aspect of the consent, and – whether the applicant, having taken the benefits of a consent, now seeks to be relieved of its burden. Whether or not the second conclusion above was correct or not at the time, s 96(3) now requires a consent authority in determining a modification application to consider the heads of consideration in s 79C(1), and it is likely that the factors identified by Bignold SA (whether or not circumstances have changed since the original grant of consent or whether the applicant having accepted the benefits of a consent is now merely seeking to avoid its burdens) are not relevant considerations in relation to a modification application. Rather, it appears that a consent authority needs to consider the planning merits of the application for modification at the time of its decision, as it would with a DA.

¶66-100 Vacik Pty Ltd v Penrith City Council In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (Vacik), Stein J in the NSWLEC heard a merit appeal against the refusal by Council of a modification application in relation to development consent to extract sand and shale at Erskine Park. The modification application sought to amend the consent to enable the quarry to be backfilled with non-putrescible waste. Council agreed that the

modification was not substantially the same development as in the development consent. Stein J held: “Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion ‘substantially’ when used in the section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that the modified development is substantially the same, see Seaforth Services Pty Ltd v Byron Shire Council (No. 2) (1991) 782 LGRA 44) and C. S. R. v Wingecarribee Shire Council (No. 2) (Unreported, 17 December 1991). In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. A significant difference is none of sequencing. The existing consent requires rehabilitation at the end of the excavation of material. By contrast the amendment proposes progressive rehabilitation over time and while the excavation of clay/shale continues. This has obvious implications for environmental impacts. Plans are before the Court which provide a reasonable understanding of the final landform presently required by the consent as amended in 1986. There are also plans and descriptions of the current proposal which indicate the newly proposed final landform. … That landform is quite clearly different from what is presently required under the consent. … One may quickly deduce that the final landform proposed is very different from the current one in terms of its contours. It is impossible to comprehend how the proposed landform could be said to be ‘substantially the same development’. In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use — extractive

industry — and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102. Nonetheless, the use of the land consented to is relevant to the assessment to be made under s 102(1)(a). Here an additional and distinct use — that of the waste disposal — is to be included in the rehabilitation of the quarry. Waste disposal was never a use consented to by the Council, nor the proposed means of rehabilitation in the consent. The applicant does not submit that waste disposal is a separate use of the land which is incidental or ancillary to the dominant use. It concedes that a separate consent to the use of the land for waste disposal may be required. However, it is submitted that an amendment of the consent is still needed. Be that as it may, it is plain that the acknowledged additional use of waste disposal inherent in the proposed modification to the consent is such as makes the development different from that for which consent was granted. In my opinion it cannot be said to be ‘substantially the same development’.” This decision was approved by the NSW Court of Appeal in Michael Standley at p 440. Conclusions The following conclusions may be derived from Vacik: • The term “substantially” in “substantially the same development” means “essentially or materially or having the same essence”. The applicant has the responsibility of demonstrating that a modification is substantially the same development. • To assess whether a consent as modified will be substantially the same development requires a comparison of the before and after situations. Differences may involve differences of process, which have environmental implications or differences in outcomes. • A development as modified is not substantially the same

development as originally approved, simply because it is for the same use. But if the development as modified involves an additional and distinct use, it is not substantially the same development as originally approved.

¶66-110 Benalup Holdings Pty Ltd v Lismore City Council In Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 (Benalup), Stein J in the NSWLEC heard a preliminary question of law as to whether a consent authority has the power to impose conditions on an approval of a modification (then under s 102). Stein J held at p 259–260 as follows: “In my opinion the discretion inherent in s 102 is confined to that arising under pars (a), (b) and (c) of subs (1) together with the s 90 heads of consideration of relevance to the development the subject of the modification application (subs (3A)). This discretion does not extend to adding or [p 260] modifying any condition other than sought by the applicant in the s 102 application or consented to by the applicant. These conclusions principally arise from a consideration of the words of s 102 itself and the distinction between the section and ss 77, 91 and 97 relating to development applications and consents. Besides confining the making of a modification application to the applicant (or any other person having the benefit of the consent), subs (4) makes it plain that modification of a consent under the section shall not be construed as a granting of development consent and any reference to a development consent shall be reference to ‘the development consent so modified’. The consent authority is not granting a new development consent under s 102 but modifying an existing development consent granted under s 91. Subsection (6) also provides that nothing prevents a person applying for and obtaining a consent where the development is the subject of a

current consent ‘whether or not that consent could be modified under this section’. The difficulty with Mr Newport’s submission that the consent authority has a discretion, albeit a confined one, is how to define its limits. I accept that a ‘yes’ or ‘no’ answer to a modification application has the capacity to cause inconvenience (and perhaps delay) but the intent of the scheme of the Act, and s 102 in particular, is plain. If a difficulty arises in a modification application it can often be solved by the applicant accepting an amendment proposed by the consent authority. Indeed, as a matter of practice, this happens on not infrequent occasions. It does not seem to me that the possible inconvenience is manifest nor does the construction I have adopted (of s 102) lead to any absurd or unreasonable situations … In my opinion the question posed in the amended notice of motion can best be answered by saying that the Court, as consent authority, (and the Council when it is the consent authority) does not have the jurisdiction or power, when determining an application under s 102 of the Act, to modify a development consent other than in the terms applied for by the applicant unless with the consent of the applicant. The Court cannot modify the consent by imposing conditions not sought by the applicant or in a form other than sought by the applicant. The discretion in s 102 does not extend to such situations. The discretion in the section is confined to s 102(1) as amplified by subs (3A).” Conclusion The following conclusion may be derived from Benalup: • The discretion of a consent authority in determining an application to modify a development consent does not extend to adding or modifying any condition other than as sought by the applicant in the modification application or as consented to by the applicant.

¶66-120 Swadling v Sutherland Shire Council

In Swadling v Sutherland, Talbot J in the NSWLEC heard an appeal as to whether a consent authority had the power to modify a development consent granted but subject to a merit appeal under s 97 to the court. Talbot J held that, where a consent authority had granted a development consent, it had the power to approve a modification of that consent, even if a merit appeal had been lodged. Talbot J held at p 435–436 as follows: “Hemmings J acknowledged in Somerville v Dalby, that a consent does not cease to exist upon the lodgment of an appeal. It is not revoked nor is it void. Section 93(2)(b) recognises that the same consent can become effective and operative again at the later date of the decision on the appeal except where the decision is to refuse development consent. It is only if development consent is refused on appeal that the consent is void. Although a consent ceases to be effective once an appeal is lodged, it nevertheless continues to operate. In other words it still has some life pending the decision on the appeal. Its existence continues even though it cannot be effective to allow the applicant to act on it by carrying out the subject development. That benefit, of acting on the consent, for the time being, is embargoed or suspended. The scheme of Pt 4 of the Environmental Planning and Assessment Act will not be disrupted by a council acting to modify a consent notwithstanding a pending appeal by the original applicant. It is not difficult to envisage circumstances where a successful s 102 application might resolve a dispute between an applicant and the consent authority more effectively, efficiently and economically than an appeal. Mature reflection or negotiation after the appeal has been made may narrow the issue to one capable of being dealt with under s 102. … [p 436] …

I reject the argument that the Council had no power to determine the s 102 application on 19 July 1993. Notwithstanding the appeal the consent granted on 14 December 1992 still operated to allow the s 102 determination to be made.” Conclusion The following conclusion may be drawn from Swadling v Sutherland: • Where a consent authority has granted a development consent which is subject to a merit appeal, that consent still exists (although its effectiveness is suspended) and hence, the consent authority may consider and approve an application for modification under s 96.

¶66-130 Lido Real Estate Pty Ltd v Woollahra Council In Lido, Talbot J heard an appeal as to whether an objection under SEPP 1 to development standards in an EPI was or was not available to an applicant for a modification (then under s 102), and if it was, could a consent authority approve a modification application, which had the effect of the development (as modified) being in breach of a provision of an EPI. Talbot J held at p 3–5 as follows: “The plain meaning to be taken from the provisions [of SEPP1] is that an applicant making a development application may lodge a written objection and that where the consent authority is satisfied that the objection is well founded, it may grant consent to the development application. Section 102 applies only after a consent authority has granted development consent. The application to modify the consent presupposes the existence of the latter. The express provisions of s 102(4) support this approach by stipulating that modification of a development consent in accordance with s 102 shall not be construed as the granting of development consent although thereafter the development consent so modified is to be construed as a development consent for the purposes of the Act. If further confirmation of the fact that an application made pursuant to s 102 is not to be regarded as a

development application is required, then the addition of s 102(3A) provides that confirmation. Were it the case that an application to modify a consent was deemed to be, or to be regarded as, an application for development consent, then the provisions of s 90 would have applied to it without the assistance of subs (3A). … [p 4] The power to deal with an application for modification of development consent was introduced to the planning law of New South Wales for the first time by the EPA Act in 1980. In my opinion, it is a separate source of power contained within the section itself. This conclusion appears to be consistent with the decision of Cripps CJ, as he then was, in Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 particularly where his Honour said (at 246): ‘Section 102 provides that a consent may be modified. The constraints on the power to modify the consent are to be found in the section itself (see s 102(1)(a), (b) and (c)). If the development to which the consent as modified relates is substantially the same development and if the Court is satisfied that no prejudice will be caused to any person who objected to the development application the subject of that consent, and, if necessary, there has been consultation, then the Court is empowered to and may modify the consent.’ … … the power created by s 102 has been consistently regarded as being found within the section itself. The consequence is that SEPP 1 could have no application. … [p 5] … I agree with Mr Davison that s 102 is a facilitating provision which

does not involve the grant of a development consent. The only limitations upon the exercise of the power are set out in s 102. An application for modification can only attract a consent if the development previously approved retains its essence and does not relevantly cause prejudice. [Note: The requirement for no prejudice has been removed.] Section 102(3A) provides only that the consent authority take into consideration relevant matters referred to in s 90. The subsection was added to clarify and confirm what any prudent consent authority, acting in accordance with the aims and objectives of the EPA Act, in particular Pt 4, should be doing in the process of consideration of an application for modification under s 102. The source and scope of the power remains to be found within s 102(1). The subject of an application for modification is not the development but the existing development consent. The consent authority, and thus the Court, is required therefore to consider whether the development consent should be modified, first as a question of power and secondly having regard to such of the matters referred to in s 90, which are relevant. Where applicable s 102(2) must be complied with. The remaining provisions in s 102 are merely directory regulating the exercise of the power and providing for the consequences.” Conclusions The following conclusions may be derived from the decision in Lido: • SEPP 1 only applies to DAs. A modification application under s 96 is expressed as not being the granting of a development consent under s 96(4), SEPP 1 is not available to an applicant for a modification under s 96. • The only limitations on the power to modify a development consent are those found in s 96 itself in s 96(1), (1A) and (2). The requirement to take into consideration the heads of consideration under s 79C is directory and does not prevent a consent authority from granting a modification which may be in breach of an EPI or

a development standard therein.

¶66-140 North Sydney Council v Michael Standley & Associates Pty Ltd In Michael Standley, the NSW Court of Appeal heard an appeal in relation to a modification to a development consent under the provisions in s 102. The original consent for an 18-storey building at Milsons Point was granted in 1992 and had previously been modified on three occasions by Council. The Council was deemed to have refused the fourth modification which resulted in the applicant appealing. One issue before the Court was whether, in forming the opinion regarding “substantially the same development”, the consent authority compared the proposed modified development with the development as originally approved or the development as approved, including the last approved modification. Mason P (with whom Stein JA and Sheppard AJA agreed) held that the appropriate point of reference was the development consent as currently modified, irrespective of whether this was the produce of a succession of previous modifications involving incremental creep (at p 438–440 per Mason P; at p 446 per Stein JA and at p 448 per Sheppard AJA). This decision was reversed by the 1999 Amendments and the reference point for the test of substantially the same development was “the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)” (see s 96(1A)(b) and s 96(2)(a)). In Michael Standley, the Court considered whether, in determining a modification application, the requirement to consider the heads of consideration in the then s 90 (now s 79C) was relevant to the development (the subject of the application) (at the time in s 102(3A), now s 96(3)). The Court also considered whether the consent authority should assess the heads of consideration in relation to the differences between the current approval and what was proposed in the modification application. Mason P (with whom Sheppard AJA agreed) held at 441–442:

“In my respectful view, s 102(3A) [now s 96(3)] is not so confined. The critical words are ‘such of the matters referred to in section 90 as are of relevance to the development the subject of the application’ [emphasis added]. Had the subsection used the word ‘modification’ in place of the word ‘development’ then it would have been quite different. But, with respect to those who see it otherwise, I find this to be a very plain subsection. The consent authority is directed to consider any s 90 matter relevant to the whole development as modified. This is the plain meaning of the provision, and it offers a principled way for limiting the dangers of the ‘creep factor’ to which reference has already been made. … [p 442] For these reasons I would hold that a consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 90 as are of relevance to that development.” Stein JA differed with the majority on this issue holding at p 447: “It is clear that s 102(3A) [now s 96(3)] requires the decisionmaker to address the s 90 heads of consideration relevant to the modification application. That is the application before the consent authority. To the extent that the application seeks to modify the previously approved development, s 90 must be applied. But where the modification has no impact on any aspect of the already approved development, s 90 considerations have no role to play.” Conclusions The following conclusions may be derived from Michael Standley: • In addressing the heads of consideration in s 79C in relation to a modification application, the consent authority is required to assess them in relation to the whole development as modified, and not just the differences between the current approval and what is proposed to be modified.

• In Michael Standley, the NSW Court of Appeal considered whether a consent authority could attach conditions on a modification application, then under s 102. In this case, neither party challenged the correctness of the conclusion by Stein J in Benalup that a consent authority did not have the power to modify a development other than in the terms sought by the applicant, unless with the consent of the applicant. In relation to this issue, Mason P (with whom Sheppard AJA agreed) held at p 440–441: “I find it unnecessary to resolve this issue in the present appeal. However, I must not be taken to be approving Benalup. I would wish to reserve the point whether as a general principle the power to approve conditionally needs to be conferred expressly where there is a true discretion. In Southern Pacific Co v Olympian Dredging Co 260 US 205 (1922) at 208 Sutherland J, delivering the opinion of the Supreme Court of the United States, said that: ‘The power to approve implies the power to disapprove and the power to disapprove necessarily includes the lesser power to condition an approval’; see also Johns v Australian Securities Commission (1993) 178 CLR 408 at 428–429, 469–470 [PDF]; cf R v Windsor Licensing Justices; Ex parte Hodes [1983] 1 WLR 685; [1983] 2 All ER 551. It is true that s 102 does not contain a provision similar to that found elsewhere which expressly arms the Court with power to approve conditionally: see, eg, ss 79(1), 91(1), 92(4) and 101(8). However, given the dangers of applying the expressio unius maxim, this may be insufficient to displace any general principle concerning the conditional exercise of [p 441] discretionary powers. Of course, any conditions must be reasonably capable of being regarded as related to the purpose for which the discretion is being exercised: see Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499–500 [PDF]; Johns (at 469–470).”

Stein JA, the author of the decision in Benalup and now promoted to the NSW Court of Appeal, held in relation to this issue at p 446: “The judgment of Mason P has raised the issue of the breadth of my decision in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 [PDF]. I accept that the question of whether there is implied in the power to refuse a modification, a power to conditionally approve, should be reserved for another day.” Thus, the NSW Court of Appeal, while raising doubts as to whether Benalup was correctly decided, left a final consideration of the question to another occasion. In Michael Standley, the Court considered whether a modification could be approved even if it was in breach of a development standard or an EPI. Mason P noted this may arise in three circumstances at p 444: “1. A development may contravene a development standard at the outset. The development application is accompanied by an objection under cl 6 of State Environmental Planning Policy No 1. The original application is consented to, pursuant to cl 7. There is a later application for modification pursuant to s 102 [now s 96]. 2. A development may comply with all development standards at its inception. However those standards are later amended in a way that would preclude an identical original development application. Subsequently there is a s 102 [now s 96] application. 3. A development may be in category (2) except that the development standards are amended after an initial s 102 [now s 96] modification but prior to a subsequent application under that section.” Mason P noted the decision in Lido, which the Council submitted was wrongly decided. With the agreement of Stein JA and Sheppard AJA, Mason P held at p 446: “In my view Lido Real Estate was correctly decided and Lloyd

J was correct in the answers he gave to the two issues stemming from cl 19 of the North Sydney Local Environmental Plan 1989. Section 102 [now s 96] is a freestanding provision. A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3)A) [now s 96(3)] controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument.” Thus, the Court of Appeal in Michael Standley endorsed the principles decided in Lido.

¶66-150 Moto Projects (No 2) Pty Ltd v North Sydney Council In Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 (Moto), Bignold J in the NSWLEC heard an application to modify a development consent previously granted by the Court. The development consent approved redevelopment of the North Sydney Club in Berry Street, North Sydney and the addition of four to six floors of residential apartments above the existing building. The approved development included: • a vehicular ramp from the Warringah Expressway for ingress to the club • use of a right of way (ROW) from Walker Street for egress from the club and ingress and egress for the residential apartments, and • the retention of an existing ROW from Berry Street for service vehicles. The modification application sought to delete the vehicular access ramp from the Warringah Expressway. The Council submitted that the development as modified was not substantially the same development

as subject to the original consent. Bignold J held at paragraphs [54]– [60] and [64]–[70]: “54. The relevant satisfaction required by s 96(2)(a) [now s 96(1A) (b) and (2)(a)] to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is ‘essentially or materially’ the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 57. At the level of physical change, the modified development is obviously different by virtue of the elimination of the ramp access from the Warringah Expressway to the Club carpark, with the direct consequence of employing the Walker Street ROW as the sole means of vehicular access to the redevelopment’s on-site carparking provision. 58. Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified. 59. In the present case, the separate ingress for vehicular traffic to the Club was a material and essential physical element of the

approved development. It was held to be ‘important’ in my judgment, allowing the appeal and granting the development consent. 60. Its proposed elimination materially changes the approved development. ... 64. Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. This approach is exemplified in the decision of Talbot J in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported, 2 October 1998) where Talbot J held that the statutory modification power was not available because his Honour had not been satisfied that the development as proposed to be modified would be substantially the same as the currently approved development. 65. The approved development in that case was a nine storey building comprising 95 flats and 9 retail shops at the ground floor level. 66. The modification proposed to eliminate all but one shop on the ground floor and to utilise the freed space for additional flats. 67. In the course of considering whether the statutory requirement of s 96(2)(a) had been satisfied, his Honour said: ‘It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building, notwithstanding that the consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 79C (formerly s 90) as are of relevance to that development. The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development

is substantially the same development.’ 68. I would respectfully agree with his Honour’s views. They have obvious application to the facts of the present case, where the only change involves the elimination of the separate ramp access from Warringah Expressway providing exclusive vehicular ingress to the Club’s on-site carparking provision, where for the reasons I have given, that access arrangement was a material and essential feature of the approved development. 69. Its entire elimination, with the consequence of all traffic to the redevelopment having to use the Walker Street ROW, materially changes the approved development to such an extent, that I am not satisfied that the modified development is substantially the same as the currently approved development. 70. Accordingly, I have concluded that the modification power is not available in the present case.” Conclusions The following conclusions may be derived from Moto: • The finding of fact that a modified development is substantially the same as the originally approved development requires a comparison between the development as approved originally and the development as proposed to be modified. • The objective of the comparison is to ascertain if the modified development is essentially or materially the same as that original approved. • The comparative task requires both a quantitative as well as a qualitative appreciation of the differences. • The comparative task needs to be undertaken in a context, including the circumstances in which the original development consent was granted. • The comparative task needs to assess not only the physical features that are changed, but also the environmental impacts of

the changes. (This conclusion was doubted by Talbot J in Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199 (Wolgan Action Group) at paragraph [37], although it was reiterated by Bignold J in Tipalea Watson Pty Ltd v Ku-ringgai Council [2003] NSWLEC 253 at paragraph [17].) • While the comparative task involves a comparison of the whole of the development being compared with that originally approved, this should not operate to diminish a feature of the development which is important, material or essential. In these circumstances, a change to an important, material or essential feature of a development is likely to mean that the modified development is not substantially the same as the original consent. A feature that was an important issue to objectors in the original consent is likely to be an important, material or essential feature of a development. The issue of the approval of development, which has already been undertaken, has been considered in the earlier discussion of retrospectivity and DAs in Chapter ¶33. That discussion also included a discussion on whether a s 96 modification to a development consent may lawfully approve development already undertaken, and the key cases of Herbert v Warringah Council (1997) 98 LGERA 270 (at ¶33060), Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 (Windy Dropdown) (at ¶33-100), and Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257 (Dasco Design) (at ¶33-110). Following a consideration of these cases, the following principles were previously identified: • A modification of a development consent under s 96 of the EPA Act may be approved in relation to development which has already been carried out (Windy Dropdown, Dasco Design). • The approval of a modification of a development consent under s 96 of the EPA Act does not erase any breach of the EPA Act which may have occurred prior to the approval of the modification. In that sense, it is not truly retrospective in operation, but the approval of a modification would affect discretionary

considerations in any proceedings. The obtaining of a building certificate does address the issue of breach but only so far as council action is concerned (Dasco Design). A modification application under s 96 cannot require an EIS on the grounds that it is “designated development” because the provisions relating to designated development only apply to DAs and not s 96 modifications (see Concrite Quarries Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97 at paragraphs [11]–[12]). Section 96 requires that the consent authority is satisfied that the development, to which the consent as modified relates, is substantially the same development for which the consent was originally granted. The requirement for the consent authority to be satisfied is a prerequisite for the exercise of power and hence, the existence or otherwise of the state of satisfaction is a jurisdictional fact, open to review by the courts (see the discussion in Chapter ¶24 on LEP on similar preconditions to the exercise of power by a consent authority). However, the conclusion actually reached by a consent authority on the question of substantially the same development is a conclusion of fact provided the primary facts reasonably admit to different conclusions (see Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190 (Fernance Family Holdings) at paragraphs [45]–[52]. The conclusion of the consent authority on this question is not therefore a jurisdictional fact and is reviewable by the courts only if it is not an opinion reasonably open for the consent authority to make (see Wolgan Action Group at paragraphs [38]–[46]).

¶66-160 Thomas v Pittwater Council In Thomas v Pittwater Council [2003] NSWLEC 19, Lloyd J in the NSWLEC held that a modification application was not substantially the same development where the original consent was for alterations and additions to a dwelling, but in the course of construction, most of the existing house, including parts required to be retained, were demolished. Lloyd J held that what was proposed cannot be said to be

alterations and additions to an existing dwelling house given that there is almost nothing left to be altered or added to, and so it could not meet the description of what was originally granted consent. Lloyd J pointed to one of the comparisons referred to in Vacik being how the development is carried out.

¶66-170 Public notification of modification application Sections 96(1A)(c) and (d) and 96(2)(c) and (d) require the notification of a modification application involving minimal environmental impact and other modification (but not modifications to correct minor errors and misdescriptions). These notification requirements are specified in cl 118 and 119 of the EPA Regulation for a period of 14 days, or as otherwise provided in a DCP. An absence of substantial compliance with the public notification provisions for a modification is likely to result in the Court declaring the modification to be invalid (see Wolgan Action Group at paragraphs [56]–[60] and King, Marwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 (King, Marwick, Taylor) at paragraphs [56]–[57]).

¶66-180 1643 Pittwater Road Pty Ltd v Pittwater Council In 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road), McClellan CJ in the NSWLEC heard both a merit appeal and enforcement proceedings in relation to an application under s 96 to modify a development consent for a dual occupancy development at Mona Vale and related proceedings regarding similar issues at three sites at Avalon. In each case, the Council sought to impose a condition on the approval of the modification to prevent the ownership of company shares. The issue before the Court was whether the consent authority could impose a new condition on the approval of a modification application. McClellan CJ referred to the decision of Stein J in Benalup and the consideration of this issue by Mason P in Michael Standley. McClellan CJ held at paragraphs [33]–[44]:

“33 In Captain Cook Cruises Pty Limited v North Sydney Council (2002) 126 LGERA 233, Bignold J observed, although it was unnecessary for his decision, that he would follow the position tentatively put forward by Mason P in Michael Standley. In Woolworths Limited v The Warehouse Group (Australia) Pty Ltd & Anor [2003] NSWLEC 350, Talbot J acknowledged the doubt raised by Mason P in Michael Standley but did not have to decide the point. 34 It would seem that Stein J decided Benalup without the benefit of submissions which addressed the conventional principles that operate when a discretion to exercise an authority is given by statute. In Johns v Australian Securities Commission (1993) 178 CLR 408, to which the President refers, that conventional position was expressed by Brennan J in the following terms (at CLR 429): ‘An authority conferred by statute is construed as authorising everything which can fairly be regarded as incidental to or consequential upon the authority itself.’ 35 In the same case, although McHugh J recognised that unlike other provisions of the legislation, the relevant provision did not contain a power to impose conditions, his Honour found that the power to impose conditions was nevertheless available. His Honour said (at CLR 469–470): ‘The scope of a statutory power is ascertained ‘by the character of the statute and the nature of the provisions it contains’ [Morton v Union Steamship Co of New Zealand Ltd (1951) 88 CLR 402 at 410]. When the exercise of a power is left to the discretion of some person, the scope for implementing the power is fettered only by the necessity to maintain consistency with the purpose or purposes of the legislation. Consequently, the repository of the power may impose conditions on those affected by the exercise of the power as long as the conditions are not inconsistent with the purpose for which the power is granted.’ 36 Stein J was apparently concerned that because approval of an application to modify will operate in its terms, subject to any

change as a result of an appeal, it may be undesirable to construe the section to allow the consent authority to impose conditions not sought or consented to by the applicant. A party which seeks a modification that may improve the environmental outcome, may be deterred from making an application by the risk of other changes to the consent which it did not anticipate and finds unacceptable. To my mind, this should not be seen as a reason to confine the Court’s power. After all, when the original development application is lodged, the consent authority may approve it with conditions which may be completely unacceptable to the applicant. The only remedy is to ask for a review by the Court, which is the same right available to a person who is dissatisfied with the decision with respect to an application to modify an existing consent. Although some applicants may be deterred, I doubt that the number would be of significance. 37 Furthermore, to my mind there is a difference between s 102 and s 96 which is of significance when reconsidering whether the decision in Benalup should continue to be followed. Section 102 only permitted modification when the consent authority was satisfied ‘that no prejudice will be caused to any person who objected’ to the development application. Section 96 provides for modification both in circumstances where the modification involves ‘minimal environmental impact’ and otherwise, clearly contemplating that modification which brings adverse impacts may be approved. The only constraint on the breadth of the power is that the modified development must be ‘substantially the same’ as that which was originally approved. It would be surprising if, although there is a more liberal capacity to approve an application for modification, there was no capacity, without the agreement of the applicant, to impose conditions on that approval. 38 Both considerations of judicial comity and the time which has elapsed since Benalup was decided would normally cause me to follow it unless persuaded that the decision was clearly wrong. However, the strength of the reservation expressed in Michael Standley by the President, with which Sheppard AJA agreed,

together with the acceptance by Stein JA that the issue may require reconsideration, relieves me of the conventional obligation. 39 When considering a development application, a consent authority is expressly given a power to impose conditions (s 80 and subsequent subsections). The complexity of the issues which require consideration and resolution with most development applications make it inevitable that consent can only properly be granted if conditions which control the construction or future use of the development can be imposed if the application is approved. I doubt whether any consent, even one which permits the demolition of a building, would be granted without some conditions designed to protect the environment. 40 As a consequence, when an application is made to modify an existing consent, it will almost always be a request to modify a consent which has been granted subject to conditions. In these circumstances it would be impossible to consider the impact of the modification without an understanding of the effect of the existing conditions upon the modified consent. For the same reason it would be unreal to require a consent authority to evaluate an application to modify a consent without considering whether conditions made necessary by the modifications should be imposed. 41 To my mind, the discretion of a consent authority to impose conditions should only be confined if the parliament has provided for it in clear terms. Otherwise, the conventional approach to the exercise of a power to approve or refuse consent should be adopted. In the present case, the statute contains no suggestion that the discretion is confined and, accordingly, I am of the opinion that conditions may be imposed by a consent authority when determining an application for modification. The extent of the power to modify — what may be considered 42 Although the Court of Appeal in Michael Standley did not decide the question of whether there was a power to impose conditions when approving an application to modify a consent, the

members of the Court did not disagree about it. However, there was division over the approach to be taken to the matters which can be taken into account when determining the application. That division is significant in the resolution of the present matter. 43 In Michael Standley the Court was concerned with s 102(3A), since replaced by s 96(3). The new section is not materially different and is in the following terms: ‘In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C(1) as are of relevant [sic. Should read “relevance”] to the development the subject of the application.’ 44 Mason P was of the view that when determining an application to modify a consent, the consent authority ‘is directed to consider any s 90 matter relevant to the whole development as modified’ (at LGERA 441). This, his Honour held, included an opportunity ‘to repent of an earlier decision in the light of a political change of will’ (at LGERA 442). Although not stated, I do not understand the President to be suggesting an unconfined capacity to repent. The constraint is, of course, found in the nature of the application being considered. That application, being for approval for a modified consent, could be refused in which event the original consent remains. If approved, the project must still be a development which is ‘substantially the same’ as the original approved development.” McClellan CJ then provided extracts of Mason P and Stein JA’s judgments in Michael Standley and continued at paragraphs [50]–[54]: “50 Although Stein JA takes the view that the original development application having been approved, all that can be evaluated with respect to the application to modify are the impacts of the modification, those impacts are unlikely to be separate from the impacts of the original consent. The impacts of the already approved development must at least be considered, even if it is concluded that the modification will not exacerbate or diminish some or all of them. With respect, even the example

given by Stein JA, of an increase in the population density of a building, may give rise to the need to reconsider external impacts, including the adequacy and appropriateness of landscaped areas. 51 Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise. 52 It would follow that when an application is made to modify a consent by deleting or varying a condition of consent, the application must be evaluated as required by s 96(3) and relevant matters referred to in s 79C(1) must be considered. Provided there is a power to impose conditions in respect of a consent to a modification application, the consent authority must be able to determine the application by granting it and deleting the original condition, but also by imposing some other condition relating to the same planning matter. 53 In the matters before this Court, the applications for modification lodged with the Council sought the deletion of the relevant condition or conditions. Following the approach of both the majority and Stein JA in Michael Standley, the lodgement of that application had the consequence that, not only was the Council required to consider whether the condition or conditions could be deleted, but could consider all matters relevant to that

issue. It would follow that it could agree to the deletion of the original conditions, but, having concluded that control on subdivision was nevertheless required, impose new conditions. Once the matter of the control of the separate occupation of the dwellings was raised by the lodgement of the application to modify, the Council was empowered to grant the application, in whole or in part, and if it so decided, apply conditions as part of its determination. 54 It is apparent that the reasoning of the President in Michael Standley would more readily provide for the power which the Council exercised in the present matters. An application to modify the consent having been made, the Council, when considering that application, could reconsider, at least relevant elements of the original consent and, if it perceived a need to cure a problem, which may not have been apparent previously but now is, impose a new condition.” McClellan CJ also held at paragraphs [60]–[61]: “60 The applicant points to s 83 of the Environmental Planning and Assessment Act which makes express provision in relation to the operation of a development consent. It provides that in the event of an appeal, the consent does not operate until the appeal is determined. The applicant submits that because a similar provision has not been included with respect to an application to modify a consent, which operates when the application is determined, the consents must now be understood as being devoid of the original conditions, the appeal being only in relation to the new conditions. 61 The different regime for original consents is no doubt made necessary because, for a grant of a new consent, there is a requirement to define its operative date to provide for its commencement and lapse. These matters are not relevant when all that is taking place is that the original consent is being modified, because the original consent continues to operate in its modified form until the determination of the appeal. However, the appeal, being founded upon dissatisfaction with the determination

of the modification application, must be decided upon the assumption that the original consent remains and the Court, exercising the powers of the Council, is to consider whether it should be allowed to be modified.” Conclusions The following conclusions may be derived from 1643 Pittwater Road: • The decision in Benalup failed to give attention to the conventional position that where a statute conferred upon an authority a discretion, the scope of that power is only limited by the purposes of the legislation and the authority may impose conditions on the exercise of the discretion, provided the conditions are consistent with the purposes for which the power was granted. • The concerns expressed in Benalup that an approval to modify would operate in its terms, subject to any change as a result of a merit appeal, even if the consent authority had imposed conditions, neither sought nor agreed to, by the applicant. According to McClellan CJ this is the same as applies to the original DA where the imposition of conditions unacceptable to the applicant can be remedied by a right of merit appeal. • The removal of the test of no prejudice indicates that modifications may be sought which result in adverse impacts and this increased scope for modifications needs to be capable of being constrained by conditions. • It would be unrealistic to require a consent authority to modify a consent without considering whether conditions made necessary by the modification should be imposed. • The discretion of a consent authority to impose conditions should only be confined if the parliament provided as such in clear terms. Otherwise, the conventional approach permitting the imposition of conditions on the exercise of a power to approve or refuse should be applied.

• In considering an application to modify a consent, the consent authority must confine its consideration to the matters in the heads of consideration in s 79C relevant to the aspects of the development to which the modification application relates. As a consequence of this constraint, the power to impose conditions is similarly constrained to a matter in s 79C relevant to the aspect of the development to which the modification application relates. However, the critical issue alluded to by the applicant in paragraph [60] is that a modification once approved operates immediately (subject to any appeal) and amends the pre-existing development consent. Effectively, there is no right for the applicant having obtained a development consent (either from the consent authority or from the court on appeal) not to his or her liking to decide not to proceed at all, if the development (the subject of the original consent) has commenced and is operational. By authorising a consent authority to impose conditions on the approval of a modification application, it converts a modified development consent from a permission to a compulsion, unless the applicant ceases the development (the subject to the modified consent). Moreover, an examination of the provisions of the EPA Act, where the power to grant a development consent, a concurrence, general terms of approval or (under the former Pt 3A) a project approval, an approval of a concept plan and a modification of a project approval (under the former s 75W) all expressly provide that the approval may be subject to conditions. However, there is no such express power to attach conditions to a modification approval under s 96 and s 96AA, suggesting a legislative intention opposite to the conclusion in 1643 Pittwater Road. To modify a development consent under s 96(1A) requires the consent authority to be satisfied that the proposed modification is of minimal environmental impact. Section 96(1A) has an advantage to an applicant over s 96(2) in that it only requires public advertising if required by a DCP.

¶66-190 King, Marwick, Taylor & Ors v Bathurst Regional Council

In King, Marwick, Taylor, Jagot J in the NSWLEC held at paragraphs [60]–[61]: “60 The conditions which qualified the exercise of power under s 96(1A) in this case were contained in sub-sections (a) and (b) — namely, that the Council was satisfied that the proposed modification was of minimal environmental impact, and that the Council was satisfied that the development to which the consent as modified related was substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. 61 Both conditions turned upon the state of mind of the Council, rather than the existence of objective facts. This does not mean that the exercises of power by the Council are beyond the scope of judicial review. First, the power to modify a consent under s 96(1A) is available only if the Council, in fact, formed the relevant states of satisfaction. Secondly, the decisions reached must not be affected by any material misdirection in law, and must not be so unreasonable that no reasonable authority could properly have arrived at the decisions (see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]–[137] per Gummow J, and the cases there cited).” In the instance under consideration, Jagot J held that the Council did not form the required states of satisfaction and hence, the power to modify under s 96(1A) was not available. However, she then held at paragraph [84] that, in the context of s 96(1A), “minimal” meant as follows: “‘Minimal’, in the context of s 96 construed as a whole, must take its ordinary meaning of ‘very small’ or ‘negligible’ environmental impacts.” Conclusions The following conclusions may be derived from King, Marwick, Taylor: • The exercise of the power to modify a development consent under s 96(1A) requires the consent authority to be satisfied on two matters:

(1) that the proposed modification is of minimal environmental impact, and (2) that the development, as modified, is substantially the same development as the development for which consent was originally granted. These conditions relate to the state of mind of the Council, rather than objective facts and are reviewable by the courts if considered unreasonable. However, if the consent authority fails to form the relevant state of satisfaction, the power under s 96(1A) to modify a development consent is not available to it. • “Minimal” in the context of s 96 and construed as a whole means “very small” or “negligible” environmental impact.

¶66-200 Bechara v Plan Urban Services Pty Ltd & Ors Further in Bechara v Plan Urban Services Pty Ltd & Ors [2006] NSWLEC 594 (Bechara), Jagot J held at paragraph [57]: “57 In King, Markwick [sic. Should read “Marwick”], Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], I said that ‘minimal’, in the context of s 96 construed as a whole, must take its ordinary meaning of ‘very small’ or ‘negligible’. The ‘minimal’ requirement qualifies the ‘environmental impact’ of the proposed modification, rather than the proposed modification itself — which is subject to the ‘substantially the same’ requirement in s 96(1A) (b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of ‘environment’ in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts.”

¶66-210 Scrap Realty Pty Ltd v Botany Bay City Council In Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333 (Scrap Realty), Preston CJ in the NSWLEC heard a merit appeal

in relation to an application to modify a development consent under s 96(2) to expand the development for which consent was originally granted to adjoining land not subject to the original consent. Preston CJ held at paragraphs [12]–[21] as follows: “12. I will start with the council’s issue concerning whether a consent can be modified to add land not the subject of the consent originally granted. 13. The power under s 96, whether in (1), (1A) or (2), is simply one to ‘modify the consent’. Originally, the power to modify consents was restricted to modifying ‘details’ of a consent. That restriction was removed in 1985 and the power was enlarged to be, simply, to modify the consent: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475. The concept of modification involves ‘alteration without radical transformation’: see Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421; North Sydney Council v Michael Standley Pty Ltd (1998) 43 NSWLR 468 at 474. The object of the modification is the consent. 14. Hence, the power of a consent authority to ‘modify’ a consent is a power to alter without radical transformation the consent. 15. Exercise of the power to modify a consent is made conditional, in the case of modifications under s 96(2), on the consent authority forming an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). 16. This condition precedent to the exercise of the power to modify consents focuses on ‘the development’, making a comparison between the development as modified and the development as originally granted. 17. In terms, neither the concept of ‘modify’ applied to a consent or the concept of ‘development’ in the condition precedent exclude amendment of a consent to permit the carrying out of

development on land that was not the subject of the original development consent. 18. It is true that a consent authorises the carrying out of development on only the land the subject of the development consent. Development cannot be approved in abstract, isolated from the land to which it relates. The development and the land on which the development is carried out are indivisible. However, this does not preclude the consent being modified to extend the development approved by the consent to other land. This still entails a modification of the consent — it alters the description of the land to which the consent applies so as to permit the carrying out of development on that land as well. 19. As far as the condition precedent is concerned, the alteration is of ‘the development’ — it expands the area on which development is carried out. There obviously will be questions of fact and degree in ascertaining whether the development before and after modification can be said to be substantially the same. Nevertheless, an expansion of the area on which development is carried out by adding land not the subject of the original consent is not inherently outside the concept of modification of the development under s 96. 20. The parties were not able to find any judicial authority which has held that the power to modify development consents does not include the power to alter the land to which a consent applies so as to permit the carrying out of development approved by the consent on land additional to the land to which the consent as originally granted applied. The power to modify consents has been in force since 1979 when the Environmental Planning and Assessment Act was enacted. As I have earlier noted, the power was enlarged in 1985. The fact that no judicial authority exists establishing that modification of a consent cannot include the addition of land to the land to which the consent as originally granted applied is, perhaps, corroborative that such a narrow construction of the power in s 96 is not to be preferred. 21. Accordingly, I find that there is power under s 96(2) to modify

the 1976 consent to add Lot 1 to the land to which the consent applies and on which the approved storage use can be carried out.” Conclusion The following conclusion may be derived from Scrap Realty: • A modification of a development consent under s 96(2) may be made to expand the area in which development is carried out by adding land to which the consent applies, provided that the consent authority is satisfied that the development as modified is substantially the same development for which consent was originally granted. Revocation and modification other than by Applicant It will be appreciated that the power to initiate a modification of a development consent under s 96 and s 96AA is confined to the applicant or any other person entitled to act on a development consent (see s 96(1) and s 96AA(1)). Section 96A provides for a power for the Director-General of the Department or a Council, which is the consent authority, to revoke or modify a consent. The power is to be exercised having regard to the provisions of any proposed SEPP (in the case of the Director-General) or any proposed Local Environmental Plan (LEP), in the case of a council. The section is silent as to what terms of a proposed EPI should be able to prompt such action. It is likely that there needs to be some provision in a proposed EPI which relates to the development consent in question. There is a right for notice to affected persons and a right for a hearing prior to any revocation or modification (s 96A(3)) and a right of merit appeal to the NSWLEC. Importantly, s 96A(7) provides that, where a consent is modified or revoked under s 96A, a person aggrieved is entitled to recover compensation (for expenditure incurred) from the State government or the Council (depending on who initiated the action). Compensation must relate to expenditures incurred pursuant to the consent from the date on which it became effective until the date of the notice under s 96A(3), and relate only to expenditure if rendered abortive by reason of the revocation or modification. It should be noted that there is no

right of compensation for loss of future profit, nor is there a right of compensation for disturbance.

¶66-220 Principles regarding the modification of development consents The key principles derived from the discussion on the modification of development consent are as follows: Principle 1: A development consent may be modified under s 96 of the EPA Act. Section 96 provides for three types of modifications: (1) modifications involving minor error, misdescription or miscalculation (s 96(1)) (2) modifications involving minimal environmental impact (s 96(1A)), and (3) other modifications (s 96(2)). The last two types of modifications have a threshold test that the consent authority is satisfied that the development as modified is “substantially the same development” for which consent was originally granted. In addition, the second type of modification requires that the consent authority is satisfied that the proposed modification is of minimal environmental impact (s 96 of EPA Act). Principle 2: The persons who may apply for a modification of a development consent under s 96 are the applicant for that consent or any other person entitled to act on that consent (s 96(1), (1A), (2) and s 96AA of EPA Act). Principle 3: An application to modify a consent under s 96 is made to, and determined by, the consent authority who granted the development consent originally, even if the relevant EPI has changed, thereby changing the consent authority. Principle 4: Where a development consent was granted by the NSWLEC on appeal, that consent may be modified by two alternative avenues as follows with the choice as to which avenue is used being

for the applicant to make: (1) direct to the Court with the Council undertaking any consultation role with concurring bodies or approval bodies (in the case of integrated development) and any public notification process (s 96(8) of EPA Act), or (2) to the Council (s 96AA of EPA Act). Principle 5: An applicant for a modification under s 96 or s 96AA who is dissatisfied with the determination of the consent authority may seek an internal review of that decision, except where the modification relates to a complying development certificate or consents for designated development, integrated development, Crown development or a deemed refusal (s 96AB of EPA Act). Principle 6: A deemed refusal, giving rise to a right of merit appeal, occurs if a modification application under s 96 is not determined within 40 days (s 96(6) of EPA Act and cl 122A of EPA Regulation). Principle 7: An applicant, dissatisfied with the determination of an application to modify a development consent under s 96 and s 96AA, has a right of merit appeal to the NSWLEC within six months of the notice of determination or the deemed refusal (s 97AA of EPA Act). Principle 8: While a DA must relate to an application to carry out “development”, as defined in s 4(1) of the EPA Act, a modification application can seek to modify a condition of consent where that condition whether it relates or does not relate, to “development”, as defined in s 4(1), s 96 and Gordon & Valich. Principle 9: Section 96 is not the exclusive power to modify a development consent but is additional to the power to modify a development consent by means of another DA (Waverley v Hairis). Principle 10: The power of a consent authority to determine an application to modify a development consent under s 96 extends to allowing that application to be amended prior to determination (Jaimee v City of Sydney). Principle 11: To lodge a modification application, there must be a

development consent in place at the time of application and approval. Without a development consent in place, there is nothing to modify and hence, the existence of a development consent is a fundamental foundation for the power to modify. A development consent in place, means a development consent which has been granted and still remains valid and has not lapsed and hence, has not been declared invalid by a court, nor has lapsed under s 95. However, a development consent which has been granted but is subject to a merit appeal may be modified (Swadling v Sutherland, Lido). Principle 12: Where a modification application has been approved, the modification is expressly not the granting of a development consent by s 96(4). The modification simply becomes part of the development consent in existence before the modification was approved. This has one significant implication. As a modification once approved (and subsequent to any exercise of the right of merit appeal) becomes part of the pre-existing development consent, the applicant has no right to decide not to proceed unless the applicant ceases to rely on the development consent as a whole (Swadling v Sutherland). Principle 13: The meaning of “modify” is to alter without radical transformation (Ilenace, Michael Standley, Mason P in Transport Action Group). Principle 14: Alternative definitions of “modify” include: • to change (either adding to or subtracting from) a development with the substance of the original consent continuing and amounting to something less than a wholesale rejection or replacement (Sheller JA in Transport Action Group), and • to alter in a manner which is significant or substantial, even if it is not a radical or fundamental change (Fitzgerald JA in Transport Action Group). Both of these alternatives suggest a different definition of “modify” than to alter without radical transformation. Principle 15: Given the requirement in s 96(1A), s 96(2) and s 96AA that the consent authority is satisfied that the development to which

the modification relates is substantially the same development for which consent was originally granted, there is doubt as to whether the definition of “modify” further constrains or limits the power in s 96 and s 96AA. Principle 16: Section 96(3) requires a consent authority in determining a modification application to consider the heads of consideration in s 79C(1). It is likely that whether or not circumstances have changed since the original grant of consent or whether the applicant having accepted the benefits of a consent is now merely seeking to avoid its burdens are not relevant considerations in relation to a modification application. Rather, it appears that a consent authority needs to consider the planning merits of the application for modification at the time of its decision, as it would with a DA (contra Progress and Securities). Principle 17: The term “substantially” in “substantially the same development” means “essentially or materially or having the same essence”. The applicant is responsible for demonstrating that a modification is substantially the same development. To assess whether a consent is modified will be substantially the same development requires a comparison of the before and after situations. Differences may involve differences of the result or outcome, as well as differences of the process of implementation which have environmental implications or differences in outcomes. A development, as modified, is not substantially the same development as originally approved, simply because it is for the same use. But if the development, as modified, involves an additional and distinct use, it is not substantially the same development as originally approved (Vacik). Principle 18: SEPP 1 only applies to DAs. As a modification application under s 96 is expressed as not being the granting of a development consent under s 96(4), SEPP 1 is not available to an applicant for a modification under s 96 (Lido). Principle 19: The only limitations on the power to modify a development consent are those found in s 96 itself in s 96(1), (1A) and

(2). The requirement to take into consideration the heads of consideration under s 79C is directory and does not prevent a consent authority from granting a modification which may be in breach of an EPI or a development standard therein (Lido, Michael Standley). Principle 20: The reference point for the test of substantially the same development is “the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)” (see s 96(1A)(b) and s 96(2)(a) of EPA Act). Principle 21: In determining an application to modify a development consent under s 96, the consent authority is required to take into consideration such matters in s 79C(1) as are relevant to the development (the subject of the modification application) (s 96(3) of EPA Act). In addressing the heads of consideration in s 79C in relation to a modification application, the consent authority is required to assess them in relation to the whole development (as modified), and not just the differences between the current approval and what is proposed to be modified (Michael Standley). Principle 22: In relation to being satisfied as to the precondition of substantially the same development: • The finding of fact that a modified development is substantially the same as the originally approved development requires a comparison between the development as approved originally and the development as proposed to be modified. • The objective of the comparison is to ascertain whether the modified development is essentially or materially the same as that which was originally approved. • The comparative task requires both a quantitative as well as a qualitative appreciation of the differences. • The comparative task needs to be undertaken in a context, including the circumstances in which the original development consent was granted.

• The comparative task needs to assess the physical features that are changed, but also the environmental impacts of the changes. • While the comparative task involves a comparison of the whole of the developments that are being compared, this should not operate to diminish a feature of the development which is important, material or essential. In these circumstances, a change to an important, material or essential feature of a development is likely to mean that the modified development is not substantially the same as the original consent. A feature that was an important issue to objectors in the original consent is likely to be an important, material or essential feature of a development. (Moto) Principle 23: In relation to development which has already been carried out and is then subject to a modification application under s 96, see Principles 2 and 6 above. Principle 24: An absence of substantial compliance with the public notification provisions for a modification is likely to result in the Court declaring the modification to be invalid (Wolgan Action Group; King, Marwick, Taylor). Principle 25: In considering an application to modify a consent, the consent authority must confine its consideration to the matters in the heads of consideration in s 79C relevant to the aspects of the development to which the modification application relates. As a consequence of this constraint, the power to impose conditions on a modification is similarly constrained to a matter in s 79C relevant to the aspect of the development to which the modification application relates (1643 Pittwater Road). However, previous authority has indicated that the discretion of a consent authority in determining an application to modify a development consent does not extend to adding or modifying any condition other than as sought by the applicant in the modification application or as consented to by the applicant (Benalup), or alternatively that the question required further consideration (Michael Standley).

Principle 26: The exercise of the power to modify a development consent under s 96(1A) requires the consent authority to be satisfied on two matters: (1) that the proposed modification is of minimal environmental impact, and (2) that the development, as modified, is substantially the same development as the development for which consent was originally granted. These conditions relate to the state of mind of the Council, rather than objective facts and are reviewable by the courts if unreasonable. But if the consent authority fails to form the relevant states of satisfaction, the power under s 96(1A) to modify a development consent is not available to it (King, Marwick, Taylor). Principle 27: The word “minimal” in the context of s 96 construed as a whole means “very small” or “negligible” environmental impact (King, Marwick, Taylor; Bechara). Principle 28: Modification of a development consent under s 96(2) may be made to expand the area in which development is carried out by adding land to which the consent applies, provided that the consent authority is satisfied that the development, as modified, is substantially the same development for which consent was originally granted (Scrap Realty). Principle 29: The requirement for the consent authority to be satisfied in relation to the test of substantially the same development is a prerequisite for the exercise of power and hence, the existence or otherwise of the state of satisfaction in a jurisdictional fact, capable of review by the courts. However, the conclusion actually reached by a consent authority on the question of substantially the same development is a conclusion of fact and not a jurisdictional fact and is reviewable by the courts only if it is not an opinion reasonably open for the consent authority to make (Fernance Family Holdings; Wolgan Action Group; King, Marwick, Taylor). Principle 30: The Director-General or the Council may seek to modify

or revoke a development consent having regard to the provisions of any proposed SEPP (in the case of the Director-General) or proposed LEP (in the case of a Council). In proposing such action: • notice must be given to affected persons prior to taking the action, as well as a right for a hearing • affected persons have a right of merit appeal to the court, and • persons aggrieved may be paid compensation for expenditure incurred pursuant to the consent. (Section 96A of EPA Act)

PART I STATE SIGNIFICANT DEVELOPMENT AND STATE SIGNIFICANT INFRASTRUCTURE ¶67-010 Precursors to State significant development and infrastructure Division 4.1 of Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) provides for a special category of development approvals at a State government level called State significant development (SSD), while Pt 5.1 of the EPA Act provides for an additional approval pathway outside of the development assessment framework of Pt 4 for State significant infrastructure (SSI). Division 4.1 of Pt 4 and Div 5.1 of Pt 5 were enacted in 2011 by the O’Farrell Government in the Environment Planning and Assessment Amendment (Part 3A Repeal) Act 2011 No 22 (NSW) (2011 Amendments). These provisions are but the latest of a line of planning law provisions in New South Wales to provide for alternative approvals under the control of the State government. When originally enacted in 1945, Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919) contained no special approval pathway or avenue for Ministerial intervention in the development approval processes, although the Minister retained the final say on the provisions of prescribed planning schemes. Following the amendment of Pt 12A to include a power to suspend the operation of a scheme and make an Interim Development Order (IDO), s 342V(3)–(5) of the LG Act 1919 was inserted in 1963 to enable a direction to be issued to a council to call in an interim development application (DA) for determination by the State Planning Authority with a right of appeal to, and final determination by, the Minister under s 342V(5) with further merit appeal.

While these provisions only applied to interim DAs and not to DAs under a prescribed planning scheme ordinance, given the power of the Minister to suspend a planning scheme and make an IDO, it was possible to extend the power of Ministerial intervention to all classes of development. The power for calling in interim DAs was regularly (although sparingly) used, while Pt 12A of the LG Act 1919 was the applicable planning law. With the introduction of the EPA Act, the power of call-in previously in s 342(V)(3) of the LG Act 1919 was continued in the initial Act in s 101, which empowered the Minister to issue a direction to call-in a DA or DAs of a class for determination by the Minister. The power to call-in DAs was limited to matters which the Minister considered to be of State and regional planning significance for the State. If either the applicant, the council or an objector in the case of designated development so requested, a public Commission of Inquiry into the application was required to be held. The final determination of the DA was made by the Minister following receipt and consideration of any report by a Commission of Inquiry. There was no right of merit appeal either by an applicant or an objector after the Minister’s decision. The Minister however was bound by the provisions of an Environmental Planning Instrument (EPI) and hence, could not lawfully approve a DA for prohibited development.

¶67-020 Issue of Ministerial power The issue of Ministerial power under s 101 in the original EPA Act in 1979 was a live issue in the Parliamentary debate on the Environmental Planning and Assessment Bill 1979 (NSW). In the Second Reading Speech, the Minister for Planning and Environment, Mr Paul Landa MLC said:1 “I believe that Ministers should be responsible and should be accountable. I am not prepared to follow the pattern of my predecessors of hiding behind the illusion of a statutory authority when in fact the decision is one of the Minister or within the power of the Minister. As planning decisions within the State administration are made by Ministers, the makers of such

decisions should be accountable — accountable to Cabinet, to the Parliament and to the community at large. Moreover the bills before the House provide the Minister with no powers not currently held by the Minister under the existing law. One would think from the comments of the Opposition that under the existing part XIIA of the Local Government Act, 1919, the State Planning Authority Act, 1963, and the New South Wales Planning and Environment Commission Act, 1974, the Minister is powerless. Nothing is further from reality. The existing law provides for a highly centralized system under the Minister. This centralized system has been nurtured, encouraged and extended by successive Liberal-Country party members, for example, the Hon. Pat Morton, M.I.A., the Hon. Sir Charles Culter, M.L.A. and the Hon. Sir John Fuller, M.L.C. Let us look at some of the provisions that have been attacked by the Opposition. Clause 101 enables the Minister to require a consent authority, usually the local council, to refer to the department for determination by the Minister a particular development application or a development application of a class or description of development application. This provision is, of course, directly comparable to section 342V(3) of the Local Government Act, 1919, which was introduced in 1945. Such directions have been applied in matters of State and regional significance where the determination of particular development applications requires resolution in accordance with government policies. Two examples of the use of such directions well illustrate the use of and the need for such provisions. Incidentally, both were applied by Ministers in the previous Government. I refer to the directions in respect of the Port Botany development and to the proposed Myall Lake national park. It is a process that I have used in a number of circumstances. It has been suggested that somehow it is improper for individual applications to be determined by a Minster. What section 342V(3) and clause 101 do is transpose the determining role from a

council to a Minister, both of whom are of course political functionaries, and one must weigh up a Minister’s accountability to Cabinet, Parliament and the public of the whole State against the more limited accountability of councils. Clause 101 had a comparable provision in the former Government’s proposed legislation — legislation that died in the last days of the LiberalCountry Party Government in this State — namely, clause 125 of the Environmental Planning Bill, 1976. In respect of the necessity for such a provision. I fully agree with my predecessor, the Hon. Sir John Fuller, who wrote in the Sydney Morning Herald on 30th April, 1976: ‘It is imperative that this power be available to the Minister to enable him to determine applications of State or national significance. The implied suggestion in Mr Wilcox’s letter, that this power could be used against the interests of the community, cannot be sustained in the light of experience, realising that this same power has existed all along under provisions of the Local Government Act.’ It will be noted that I have included in clause 101 a number of features that were noticeably absent in the former Government’s bill. First, where the applicant, the council or an objector so request, the Minister is required to refer the matter to an independent commission of inquiry which reports publicly its recommendations and findings. The former Government’s clause 125 did not even provide a right for a hearing as provided as present in section 342v(3) of the Local Government Act, 1919, let alone provide for publication of the findings. What the former Government proposed to do was to deprive citizens and councils of rights held under the existing law. Second, the Minister is required to give the applicant reasons for his decision where an application is refused or approved subject to conditions.” In the Environment Planning and Assessment (Amendment) Act 1985 No 228 (NSW), the EPA Act was amended to provide a power for the Minister to approve otherwise prohibited development by the addition of a new s 100A and changes to s 101.

The call-in power under s 101 was utilised regularly but sparingly. It was used in relation to major new coal projects, hazardous major industry in the Port Botany area and select major commercial and retail developments. In March 1993, the NSW Government made the State Environmental Planning Policy No 34 (Major Employment Generating Industrial Development) (SEPP (Major Employment Generating Industrial Development)), which made the Minister the consent authority for significant employment generating industrial developments over a broad range of development types. With the enactment of the Environmental Planning and Assessment (Amendment) Act 1997 No 152 (NSW) (1997 Amendments) to the EPA Act which commenced to operate on 1 July 1998, Pt 4 of the EPA Act on development assessment was completely replaced. The new Pt 4 included a specific category of DAs called SSD for which the Minister was the consent authority. Development was declared to the SSD by an EPI or could be declared separately by Ministerial direction. As a result, there was no equivalent to the former s 101. Footnotes 1

NSW Parliament, 21 November 1979, Legislative Council Hansard, p 3348–3349.

¶67-030 Development application process following 1997 Amendments — key features Key features of the process for DAs for SSD following the introduction of the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW) (1997 Amendments) were as follows: • A DA for SSD was required to meet the same requirements as other DAs in relation to formal requirements for lodging information required to be submitted, including an EIS or SIS

(where required), public consultation and evaluation criteria/heads of consideration. • A DA for SSD attracted the same rights of merit appeal as other DAs. • The Minister was empowered to partially overcome prohibitions. The Minister could approve a DA for SSD if it was partly, but not wholly prohibited, by an EPI. • The requirement for a Commission of Inquiry was no longer mandatory if sought by an applicant, council or objector, but was now at the discretion of the Minister. However, if no Commission of Inquiry was held, the parties retained their rights of merit appeal. • The types of development which constituted SSD were publicly identified in State Environmental Planning Policies (SEPPs) although the power remained for ad hoc declarations. The SEPPs expanded on the types of DAs covered primarily in the field of mining, major industries, coastal developments, etc.

¶67-040 State significant development — State Environmental Planning Policies consolidated Initially, SSD was identified in a number of SEPPs, such as SEPP (Major Employment Generating Industrial Development) (mentioned previously), SEPP No 48 (Major Putrescibles Landfill Sites), SEPP No 55 (Remediation of Land), SEPP No 56 (Sydney Harbour and its Tributaries) and SEPP No 59 (Western Sydney Economic and Employment), general directions under s 76A(7) and site-specific declarations. In the lead-up to the commencement of the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW) (2005 Amendments) introducing Pt 3A, these directions were consolidated with SEPP (State Significant Development) 2005 (SEPP (State Significant Development)).2 As well

as identifying classes of development, the SEPP provided for the listing of State significant sites (cl 7) under which development on those sites become SSD. An important feature of the SEPP (State Significant Development), when it was originally made by Minister Craig Knowles on 25 May 2005, was the inclusion of the following category of development as SSD: “Group 5 Construction projects 13 Construction projects (1) Development for the purpose of residential, commercial, retail or other construction projects with a capital investment value of more than $50 million that the Minister determines are important in achieving State or regional planning objectives. (2) This clause does not apply to major development within the meaning of section 31 of the City of Sydney Act 1988.” In contrast, SEPP (Major Employment Generating Industrial Development) made by Minister Robert Webster in 1993, explicitly excluded from development in relation to which the SEPP made the Minister the consent authority, development which was tourist development, residential development and retail or commercial development.3 The inclusion of this category in SSD giving the Minister a discretion to select which construction projects he would be consent authority, rather than a clearly defined category, for which he would be the consent authority, sowed the seeds for the ultimate loss of confidence in the operation of Pt 3A. On 9 June 2005, the NSW Parliament passed the 2005 Amendments which received assent on 16 June 2005. Footnotes 2

Published in NSW Government, 25 May 2005, NSW

Government Gazette No 60, p 1785ff. 3

See cl 7 and Sch 1(d) of SEPP (Major Employment Generating Industrial Development).

¶67-050 Part 3A — a new approval pathway The major element of the 2005 Amendments was the removal of the provisions regarding SSD from Pt 4, and the DA process and the establishment of a new approval pathway under Pt 3A entitled “Major Infrastructure and Other Projects”. Part 3A was proclaimed to commence on 1 August 2005. In his Second Reading Speech on the Bill, Mr Craig Knowles MP, Minister for Infrastructure, Planning and Natural Resources said:4 “There is no doubt that this bill dramatically improves the climate in which to do business in this State. The bill implements important elements of this Government’s planning reform program — a program which is overhauling our planning system and cutting red tape at all levels, whilst continuing to improve the high standards of environmental assessment and community participation that have been the hallmark of planning legislation in this State for almost 30 years. The bill introduces new mechanisms which will ensure that the Government delivers quickly and efficiently on its infrastructure programs — projects for roads and transport, schools, hospital upgrades, and water and energy projects are obvious examples. … … For matters of State significance or major projects, the new single assessment process will strengthen the rigour, transparency and independence of the process of assessment, providing higher levels of up-front certainty for the proponent, the community and other stakeholders.

The bill will cut red tape by reducing time, cost and complexity in the assessment of infrastructure projects, projects of State significance and critical infrastructure projects. Together with the new State Environmental Planning Policy (State Significant Development) 2005, which was gazetted last Wednesday, the provisions contained in the bill enable the Minister to determine strategic sites, projects or programs of State significance and resolve issues associated with them decisively, transparently and expeditiously. These reforms not only are vital to the delivery of major infrastructure projects and to the economy of New South Wales but also underpin the Government’s ability to implement strategic initiatives such as the Metropolitan Strategy. … … There is new project assessment under the new part. The bill provides for a new part 3A of the Environmental Planning and Assessment Act that will replace two different assessment and approval processes for major private and public projects. The new part will apply to the following major projects: development currently identified as State significant development under the State environmental planning policy; major State Government infrastructure projects, for example, projects which normally require an environmental impact statement under part 5 of the Environmental Planning and Assessment Act; and other projects, plans or programs which are ‘declared’ by the Minister because of their economic, social or environmental planning significance to the State or region.” In the lead-up to the commencement of Pt 3A, State Environmental Planning Policy (State Significant Development) 2005 (Amendment No 1) was made to commence when Pt 3A commenced. This renamed the SEPP as the State Environmental Planning Policy (Major Projects) 2005 (SEPP (Major Projects)) and made developments which were previously SSD into Major Projects now subject to Pt 3A. In particular, it carried into the new Pt 3A the discretionary category of “Construction projects” previously referred to. Part 3A and the SEPP (Major Projects) were utilised expansively by

Frank Sartor MP who became Minister for Planning in August 2005, shortly after the enactment of Pt 3A. Although not the architect of Pt 3A, in his term as Minister for Planning from August 2005 until September 2008, he used Pt 3A and the SEPP (Major Projects) to take over the determination role in many major developments and major sites to encourage economic development and employment and resolve often stalled resolution of planning outcomes for particular sites. As a result, the SEPP (Major Projects) expanded dramatically. When first made as the SEPP (State Significant Development), it comprised a modest 66 pages with 28 categories and 15 locations of SSD and one State significant site. By the end of the term of the Kenneally Government in March 2011, the State Environmental Planing Policy (Major Development) 2005 (SEPP (Major Development)) (being renamed in 2009 by the State Environmental Planning Policy (Major Projects) Amendment (Joint Regional Planning Panels) 2011, from SEPP (Major Projects) to SEPP (Major Development)) had ballooned to 315 pages with 264 pages devoted to State significant sites. The vehicle of State significant sites became an expedited route for achieving rezoning in the face of opposition or non-performance by local councils, while the Construction Projects (renamed as “Residential, commercial or retail projects” by State Environmental Planning Policy (Major Projects) 2005 Amendment No 2, gazetted on 7 December 2005 with the content of the category unchanged) category was regularly utilised. In July 2009, the category of Construction Projects was amended to double the required threshold value from $50m to $100m and remove the element of Ministerial discretion by State Environmental Planning Policy (Major Projects) Amendment (Joint Regional Planning Panels) 2009 published on 26 June 2009 and which commenced on 1 July 2009. Thus, the former category of: “Group 5. Residential, Commercial or Retail Projects 13(1). Development for the purpose of residential, commercial, retail or other construction projects with a capital investment value of more than $50 million that the Minister determines are important in achieving state or regional planning objectives.”

became in 2009: “Group 5 Residential, Commercial or Retail Projects. 13(1). Development for the purpose of residential, commercial or retain projects with a capital investment of more than $100 million”, but excluding major development under the City of Sydney Act 1988.5 The effect of the operation of Pt 3A and the SEPP are best described by Mr Frank Sartor MP who has written:6 “I had the misfortune to be the Minister for Planning from August 2005 until September 2008. My tenure commenced just after the Carr government had enacted some new planning laws that vested significant powers in the hands of the minister and had massively expanded the number of projects that he or she had to decide upon — from twenty-odd to hundreds per year. Some of these applications were naturally difficult and/or controversial, and the ever-increasing number made it a challenging task from a political perspective, especially in the face of councils bleating incessantly about having their powers taken away, expressed, of course, as an attack on ‘local democracy’. Add some obscenely large party donations by certain developers, who simultaneously lodged applications, and we had a potent cocktail, one that would poison the government and seriously weaken its ability to maintain the trust of the people. … This loss of trust was due in part to voters believing that the government was siding with powerful vested interests against the wishes of ordinary people. Given that developers are about as popular with the public as used-car salesmen, it did the Labor government political harm when it was perceived to be influenced by developers through their large donations. The party’s officials had created major problems for the Labor government by obtaining excessive donations from a relatively small number of developers and other interests whose matters

were being decided by government.” The public concerns raised about Pt 3A centred on perceptions of undue influence, although as the NSW Independent Commission Against Corruption (ICAC) found in December 2010:7 “There are no established examples of the corrupt use or manipulation of discretion under Part 3A or the MD SEPP [SEPP Major Development] and this report does not intend to suggest otherwise.” The ICAC Report noted:8 “The Part 3A system is characterised by a lack of published, objective criteria. There are also various elements of Part 3A that are discretionary, particularly as regards residential and commercial development, which are prohibited or exceed existing development standards. Notwithstanding safeguards in process, the existence of a wide discretion to approve projects that are contrary to local plans and do not necessarily conform to state strategic plans creates a corruption risk and a community perception of a lack of appropriate boundaries. Excessive discretion in the planning system makes it difficult for observers to know what decision might or might not reasonably be expected in particular circumstances. This can provide a convenient cloak for corrupt behaviour, which makes detection more difficult. … The use of Part 3A as a short cut to rezoning as a result of difficulties in keeping LEPs up to date is problematic, and does not sit comfortably within this legislative and policy scheme. Rezoning can greatly increase the value of land and has been central to many instances of proven corruption. … The use of Part 3A to address statutory lag may also be counterproductive, in that it is resource-intensive and draws on the same expertise required to assess and finalise the updating of LEPs. A

vicious cycle of statutory lag followed by ad hoc intervention is undesirable in corruption prevention terms.” If the rationale for Pt 3A lay with perceived non-performance by local councils, it prompts an obvious question why that issue was not addressed head-on. The fundamental deficiency in Pt 3A related not to issues of corruption or indeed to issues of the availability of discretion. Rather, the fundamental deficiency lay in its failure to recognise that the EPA Act is based on: • a balance of rights, responsibilities and opportunities for applicants, interested third parties, councils and the State, with constraints upon the exercise of powers by one stakeholder at the expense of others • rights of public information and accountability in relation to planning decision-making • the presence of enforceable guidelines and standards in the decision-making process, and • a requirement for planning decision-making to be informed and expert-based. Part 3A represented an attempt to tip the balance of rights, responsibilities and opportunities in favour of the State to the detriment of other key stakeholders. It reduced the level of accountability of planning decision-making and showed a marked absence of enforceable guidelines and standards, replaced by vague non-binding, non-enforceable policies, which resulted in opaque decision-making and a preponderance of State control. Examples of these deficiencies abound in Pt 3A, and include: • the fact that no environmental assessment guidelines were ever made under s 75F(1), thus, leaving Environmental Assessment Reports devoid of enforceable standards • untrammelled power to achieve spot rezoning by inclusion of land

as a State significant site under the SEPP (Major Development) • no enforceable standards or guidelines on the inclusion of land as a State significant site • the Power for the Director-General to accept an environmental assessment as adequate without any right of appeal under s 75H • the fact that there were no heads of consideration similar to s 79C when the Minister determined an application with Pt 3A • the requirement in s 75J for the Minister only to take into account provisions of an EPI, although the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) did restrict the Minister’s power in this regard for projects but not concept plans, with the consequence that concept plans could override Local Environmental Plans (LEPs) • special provisions dispensing with other statutory approvals, which applied to all other developments under s 75U • no requirement for lapsing of approvals, but lapsing conditions subject to Ministerial discretion • no statutory requirement for supporting justification and assessment of a request to modify an approval under s 75W • no stay to project approvals subject to merit appeals, and • no statutory requirement even to advertise a modification application under s 75W. Unusually, planning issues were at the forefront of the election campaign for the March 2011 NSW State Election with the then Leader of the Liberal-National Parties Opposition, Mr Barry O’Farrell MP, promising that, if elected, he would repeal Pt 3A. At the March 2011 General Election, the Liberal-National Parties were successful and Mr O’Farrell became Premier of NSW.

In 2011, the NSW Parliament enacted the 2011 Amendments. In his Agreement in Principle Speech, the Minister for Planning and Infrastructure, Mr Brad Hazzard MP, said:9 “Today I implement one of the major election commitments of the Liberal-Nationals Government — to repeal part 3A of the Environmental Planning and Assessment Act 1979. In repealing part 3A the Liberal-Nationals Government is honouring two of its commitments for the New South Wales planning system: returning a broad range of decision-making powers to local communities and providing a planning framework for genuinely State significant development that provides certainty for investment and the efficiency needed to get this State moving again. The Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011 is a first step in the comprehensive review of the New South Wales planning system. In that sense the bill I introduce today is an interim, but necessary, measure to rebuild confidence in a new planning system for New South Wales — a planning system based on the public interest, not private interests; a planning system that is transparent, where planning rules are certain and decisions are taken on merit and in a timely way. The Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011 provides the framework to correct the imbalance in the New South Wales planning system — delivering the balance between the decisions that should be made by local communities and the decisions that are genuinely of State significance. Unlike part 3A, the bill provides that local environmental plans and council development standards will be an important consideration in the comprehensive environmental assessment of State significant development proposals. At the same time, the bill will honour the Liberal-Nationals Government’s commitment to place the provision of major infrastructure at the centre of our program. The bill provides for a dedicated, comprehensive and independent environmental assessment regime for infrastructure that is genuinely of State significance. It is for these reasons that I introduce a bill today which will repeal part 3A in its entirety and replace it with an open, transparent and fair assessment process to deal exclusively with genuinely State

significant development and infrastructure. … These provisions strike an effective balance between the need to provide security for investors and delivering jobs and housing for the people of New South Wales by facilitating the assessment of genuinely State significant proposals at a State level. The provisions also ensure that communities are able to have a real say at a local level about projects that should be determined at a local level. It is important to note that around a quarter of the pending part 3A proposals will leave the State assessment process entirely and be returned to the local level to be dealt with appropriately.” In response, the lead speaker for the Opposition (Australian Labor Party), Mr Michael Daley MP, said:10 “After all the bluster, fluff and verbosity from the then Opposition and now Government for more than 12 months, here we are. The dragon is dead — or so members opposite would have us believe. I concede that those opposite were very good at convincing the people of New South Wales that part 3A was a dog. But the Government has taken the labrador inside, given it a perm, sent it back out onto the street and told the public it is now a poodle. Nothing much has changed. For all its talk in the past nine weeks about being pro business, the government has delayed, obfuscated and talked its way into not doing very much. … The bill does not scrap part 3A and return planning powers to local communities. The bill scraps part 3A and renames it ‘part 4’ and ‘part 5.1’. Rover becomes Lassie.” Footnotes 4

NSW Parliament, 27 May 2005, Legislative Assembly Hansard, p 16332ff.

5

Note: This was deleted from the SEPP by State Environmental Planning Policy (Major Development) Amendment 2011, published on 13 May 2011.

6

Sartor, F, 2011, The Fog on the Hill. How NSW Labor Lost its Way, Melbourne University Press, Carlton, Victoria, p 163 and p 189.

7

NSW Independent Commission Against Corruption, December 2010, The Exercise of Discretion Under Part 3A of the Environmental Planning Policy (Major Development) 2005, ICAC Report, Sydney, p 5.

8

ibid, p 9–10.

9

NSW Parliament, 16 June 2011, Legislative Assembly Hansard, p 93ff.

10

ibid

¶67-060 Application of State significant development provisions SSD is development that is declared as such under s 89C. Development can be declared as SSD in two ways: (1) by a SEPP which can apply to any development or any class or description of development (s 89C(2)), or (2) by order of the Minister and published in the Gazette, but only if the Minister has obtained and made public advice from the Planning Assessment Commission (PAC) on the State and regional planning significance of the development (s 89C(3)).

Thus, the Minister can still call-in development by making an order declaring development to be SSD, but advice needs to be sought from the PAC. Interestingly, no advice from the PAC is required to declare SSD under a SEPP. Where development is declared to be SSD, the Minister is the consent authority for any DA, but if it is a staged DA subsequent stages may be determined by the council if the Minister so decides (s 89D). A DA for SSD may not be approved if it is wholly prohibited by an EPI (s 89E(2)), but it may be approved if it is only partly prohibited by an EPI (s 89E(3)). However, a back door means for the Minister to rezone land, where a DA for SSD is wholly prohibited, is provided in s 89E(5) and (6), where a DA for prohibited SSD is considered in tandem with a proposed EPI to permit the development with the Director-General becoming the relevant planning authority under Pt 3 to process the rezoning. However, both the rezoning and the DA are determined by the PAC (s 89E(6)).

¶67-070 Processing a development application for State significant development The provisions relating to the processing of a DA for SSD are as follows: • The Minister is the consent authority for the DA (s 89D(1)). • A DA for SSD must be accompanied by an Environmental Impact Statement (EIS) (s 78A(8A)). • The Director-General is to place the DA and accompanying information on public exhibition for a minimum period of 30 days and give notice and advertise the DA (s 89D(1) and cl 84–85 of EPA Regulation). • Any person may inspect the DA and may make a written submission or object to the DA (in which case grounds of objection need to be included) (s 89F(2)–(3)).

• Amended, substituted or withdrawn and replaced DAs do not require re-exhibition unless the Director-General determines that the new DA substantially differs from the original DA and the environmental impacts have not been reduced by the new DA (s 89F(4)). • Regulations may be made to make provision for EISs to accompany DAs for SSD, including their preparation and consultation requirements, and to require applicants to provide responses to submissions (s 89G). Environmental assessment requirements must be obtained from the Director-General and an EIS must comply with those requirements (Sch 2, cl 3 of EPA Regulation). The form and content of an EIS is specified (Sch 2, cl 5–10 of EPA Regulation). The standard heads of consideration for all DAs in s 79C apply to the determination of a DA for SSD (s 89H). Where a development consent has been granted for SSD, the following approvals are not required for that development (s 89J): • approvals under the Heritage Act 1977 (NSW) (Heritage Act) • Aboriginal heritage impact permits under s 90 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) • authorisations to clear native vegetation or State protected land under the Native Vegetation Act 2003 (NSW) (NV Act) • a water use approval under s 89, a water management work approval under s 90 and an activity approval (other than an aquifer interference approval) under s 91 of the Water Management Act 2000 (NSW) (WM Act), and • concurrences under Pt 3 of the Coastal Protection Act 1979 (NSW) (CP Act), permits under s 201, s 205 or s 219 of the Fisheries Management Act 1994 (NSW) (FM Act), and a bushfire safety authority under the Rural Fires Act 1997 (NSW) (RF Act).

Where a development consent has been granted for SSD, a number of subsequent approvals cannot be refused and must be substantially consistent with the development consent, including (s 89K): • an aquaculture permit under the FM Act • an approval under s 15 of the Mine Subsidence Compensation Act 1961 (NSW) (MSC Act) • a mining lease under the Mining Act 1992 (NSW) (Mining Act) • a production lease under the Petroleum (Onshore) Act 1991 (NSW) (PO Act) • an environment protection licence under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) • a s 138 approval under the Roads Act 1993 (NSW) (Roads Act), and • a licence under the Pipelines Act 1967 (NSW) (Pipelines Act). But these provisions do not apply to renewals or further approvals or environment protection licences after the first review. While an EIS is required for all DAs for SSD, the right of objector appeals to the Land and Environment Court of NSW (NSWLEC) under s 98 remains confined only to those DAs which are for designated development. An applicant has a right of merit appeal to the NSWLEC against the determination of a DA for SSD under s 97 of the EPA Act. Other standard provisions regarding deemed refusal, conditions, lapsing and modification of consents apply equally to DAs for SSD. However, where development consent is granted for SSD and a merit appeal is lodged, the consent is not suspended as would otherwise be the case and the applicant is entitled to proceed with the carrying out of the development despite the merit appeal (see the previous discussion on the operation of a development consent and appeal and

review rights in Chapter ¶64). Savings and transitional provisions are provided for concept plans and project approvals under the former Pt 3A, as well as applications previously lodged but undetermined under Pt 3A (see Sch 6A of the EPA Act and cl 8A–8P of the EPA Regulation). Subsequently, the Minister for Planning has delegated the Minister’s functions in relation to determination of all DAs for SSD (and transitional Pt 3A applications), and all applications for SSI as well as modifications to each of these as follows:11 • to senior officers in the Department of Planning where the relevant council has not objected, there is no political donations disclosure and where there are less than 25 public submissions by way of objection. • to the PAC in relation to all others, except applications made by or on behalf of a public authority (which are reserved to the Minister). Footnotes 11

Instruments of Delegation dated 14 September 2011 and Instruments of Delegation dated 28 September 2011.

¶67-080 State significant infrastructure The 2011 Amendments inserted in the EPA Act a new Pt 5.1 specifically addressing SSI. In effect, the 2011 Amendments split the former Pt 3A into two new parts in the EPA Act and renamed those two new components as follows: • Division 4.1 of Pt 4: providing for SSD as a type of DA within Pt 4 (unlike Pt 3A which operated outside of Pt 4). Division 4.1 is directed at major development proposals by the private sector.

• Part 5.1: providing for SSI, which establishes a new approval path as an offshoot of Pt 5 on Environment Assessment operating outside of the development assessment provisions of Pt 4. Part 5.1 is directed primarily at infrastructure and hence, primarily deals with public sector projects, but may deal with public-private arrangements as well as exclusively private sector proposals. Part 5.1 applies only to development declared to be SSI by a SEPP (s 115U). Development may only be declared by a SEPP to be SSI if it meets a number of threshold requirements under s 115U: (1) It must be “development” as defined in s 4(1) and as extended in s 115T to include an activity within the meaning of Pt 5. This imports into Pt 5.1 the legal principles regarding the definition of development previously discussed. (2) The development must be permissible without consent by virtue of the operation of a SEPP (such as the State Environmental Planning Policy (Infrastructure) 2007 (SEPP (Infrastructure))). Thus, it does not apply to development which is permissible without consent under Pt 4 as a result of the operation of an LEP (such as development referred to in cl 5.12 of the Standard Instrument (Local Environmental Plans) Order 2006 (NSW) (Standard Instrument), if adopted). (3) The development must be “infrastructure” as defined in s 115T as follows: “infrastructure means development for the purposes of infrastructure, including (without limitation) development for the purposes of railways, roads, electricity transmission or distribution networks, pipelines, ports, wharf or boating facilities, telecommunications, sewerage systems, stormwater management systems, water supply systems, waterway or foreshore management activities, flood mitigation works, public parks or reserves management, soil conservation works or other purposes prescribed by the regulations.”

It will be noted that the definition refers to “purposes” and hence, imports the law relating to characterisation (discussed previously in Chapter ¶21) into what constitutes infrastructure. Further, there is a power to extend the definition by regulation. (4) In the alternative to (3) above: “other development that (but for this Part and within the meaning of Part 5) would be an activity for which the proponent is also the determining authority and would, in the opinion of the proponent, require an environmental impact statement to be obtained under Part 5.” This alternative does not apply if the proponent is a local council or a county council. Additionally, the Minister may, by declaration (either in a SEPP or by order separately published), declare specified development of any type on specified land to be SSI (s 115U(4)). Development (the subject of a declaration) under s 115U(4) need not be infrastructure, nor permissible without consent. In effect, s 115U(4) provides for untrammelled powers for Ministerial intervention. The Minister may make such a declaration of his own volition or after recommendation by the PAC or Infrastructure NSW (s 115U(5)). Where such a declaration is made in relation to what would otherwise be SSD, the development becomes SSI (s 115U(7)). However, where development that is declared SSI under s 115U(2) (ie a SEPP declaring any development or any class of development as SSD) is also SSD, the development remains SSD (s 115U(6)). The Minister may also declare any SSI to be “critical” SSI if, in the opinion of the Minister, it is “essential for the State for economic, environmental or social reasons” (s 115V). A declaration of critical SSI may be made in the instrument which declares something SSI or in a later instrument. There is a general prohibition on any person carrying out development that is SSI without an approval by the Minister under Pt 5.1 (s 115W). The process for obtaining the Minister’s approval to carry out

development that is SSI is as follows: • The “proponent” applies to the Minister with a description of the infrastructure and such other matter as required by the DirectorGeneral, with the application lodged with the Director-General (s 115X). Proponent is defined in s 115T as follows: “proponent of infrastructure means the person proposing to carry out development comprising all or any part of the infrastructure, and includes any person certified by the Director-General to be the proponent.” • The Director-General prepares and notifies the proponent of the environmental assessment requirements. These must include an EIS in accordance with the EPA Act (s 115Y). • An EIS is submitted by the proponent to the Director-General who may require revisions to the EIS. The EIS must be publicly exhibited for no less than 30 days. In that period, public submissions are invited. These submissions are provided to the proponent and the Director-General may require the proponent to submit a response to the submissions and a “preferred infrastructure report” outlining changes to the SSI to either minimise its environmental impact or address issues raised in the assessment process. This preferred infrastructure report may be made public, but is not required to be made public (s 115Z). • The Director-General provides an environmental assessment report to the Minister (s 115ZA), and the Minister (after considering the Director-General’s assessment report) may approve, refuse or require modifications or conditions (s 115ZB). • Provision is made for Staged Infrastructure Applications seeking approval for “concept proposals for the proposed infrastructure” to be subject to subsequent application (s 115ZD). For a discussion on the meaning of “concept proposals” in relation to the former Pt 3A, see Walker v Minister for Planning [2007] NSWLEC 741, which was subject to a successful appeal, but this aspect of the judgment was not overturned.

• Part 4 and Pt 5 (other than Pt 5.1) do not apply to SSI (s 115ZF). Thus, the issue of the status of approvals, power of conditions, lapsing and indeed the nature of approvals is unstated. However, Div 6 and 6A of Pt 4 (being the provisions relating to development contributions) apply to SSI that is not carried out by, and on behalf of, a public authority in the same way they would apply to development under Pt 4 (s 115ZF(3)). • Similar to SSD, where an approval is given to SSI, the requirement to obtain some additional approvals is removed (s 115ZG), while for others, subsequent additional approvals must be substantially consistent with the approval under Pt 5.1 (s 115ZH). • The Minister is empowered on application of a proponent to modify an approval for SSI under s 115ZI. This power is similar to that previously provided in s 75W in relation to Pt 3A. “Modification” is defined broadly in s 115ZI as follows: “modification of an approval means changing the terms of the approval, including revoking or varying a condition of the approval or imposing an additional condition on the approval.” Hence, the constraints applying to modifications of development consents under s 96 are not present (see in this regard the discussion under Modification of DAs regarding Barrick Australia Ltd v Williams [2009] NSWCA 275). • Privative clauses are included in s 115ZJ to restrict judicial review from three months after public notice is given in relation to an approval of SSI similar to s 104A. However, s 115ZJ(2) proceeds to declare that the only provision of Pt 5.1 that is mandatory in relation to an approval for SSI is the requirement to exhibit an EIS. All other provisions are not mandatory but presumably directory where compliance is not enforceable. Such a sweeping provision has no parallel elsewhere in the EPA Act, nor was it present in Pt 3A. • Certain documents are required to be publicly available (s 115ZL).

• An approval for SSI may (but does not have to) include a lapsing period and the surrender of other approvals (s 115ZL(3)–(5)). In essence, the provisions of Pt 5.1 are a repeat of the former Pt 3A, renamed, repositioned and renumbered but sharing its essential features. The additional special features applying to critical SSI, not otherwise shared by SSI, are as follows: • Division 2A of Pt 6 of the EPA Act relating to the issue of orders does not apply (s 115ZF(4)). • A range of directions, orders and notices under other legislation cannot be made or given in relation to approved critical SSI under s 115ZG(3), including: – interim protection orders and stop-work orders under the NPW Act and the Threatened Species Conservation Act 1995 (NSW) (TSC Act) – an environment protection notice under the POEO Act, and – orders under s 124 of the Local Government Act 1993 (NSW) (LG Act 1993). • Additional bars on the rights of appeal and judicial review, other than those applying generally to SSI in s 115ZJ, apply to critical SSI under s 115ZK. • No proceedings for civil enforcement (under s 123 or under the POEO Act) may be undertaken unless by the Minister or approved by the Minister for a breach of the Act, a breach of a condition of approval or a breach of subsequent approvals referred to in s 115ZH(1). In summary, the provisions of Pt 5.1 do not merely replicate the former Pt 3A but are more restrictive in terms of public rights and even more expansive of State powers.

¶67-090 State Environmental Planning Policy (State and Regional Development) 2011 and State Environmental Planning Policy (Major Development) 2005 The operation of the provisions of the 1997 Amendments in relation to SSD was supported by SEPP (State Significant Development). With the passage of the 2005 Amendments and Pt 3A of the EPA Act, this SEPP was transformed into the SEPP (Major Projects) 2005, and in 2009, the SEPP (Major Development). With the repeal of Pt 3A by the 2011 Amendments, the listings of what were Major Developments were removed and placed in a new SEPP — State Environmental Planning Policy (State and Regional Development) 2011 (SEPP (State and Regional Development)) — while SEPP (Major Development) 2005 continues to deal with State significant site listing, being rezoning undertaken by the Minister. In addition, categories of exempt development are also provided. A process for nominating proposals for listing as a State significant site is established under cl 3 with a study undertaken by the DirectorGeneral, but sites may be added without complying with the process of study (cl 3(6)). In essence, the process is a means of bypassing the usual LEP process and effect spot rezoning at the discretion of the Minister. It recalls the process suspending a planning scheme and making an IDO under the former Pt 12A of the LG Act 1919, prior to the enactment of the EPA Act. The SEPP (State and Regional Development) was made on 28 September 2011 and commenced to operate on 1 October 2011. This SEPP has three objectives: (1) to identify SSD for the operation of Div 4.1 of Pt 4 (2) to identify SSI and critical SSI for the operation of Pt 5.1, and (3) to provide for the function of joint regional planning panels to determine certain DAs. Where development is specified in Sch 1 or 2 of the SEPP and is not permissible without consent under an EPI (ie it is either permissible

with consent or prohibited), it is SSD (cl 8). This is a significant change from the former Pt 3A, which operated independently of EPIs so far as permissibility is concerned. The types of development declared to be SSD fall into the following categories, but each is subject to specific definitions and, in some cases, threshold levels (often a capital investment value of greater than $30m): • intensive livestock agriculture • aquaculture • agriculture produce industries and food and beverage processing • timber milling, timber processing, paper and pulp processing • mining • petroleum (oil and gas) • extractive industries • geosequestration • metal, mineral and extractive material processing • chemical manufacturing and related industries • other manufacturing industries • warehouses or distribution centres • cultural, recreation and tourist facilities • hospitals, medical centres and health research facilities • educational establishments • correctional centres • air transport facilities

• port facilities and wharf or boating facilities • rail and related transport facilities • electricity generating works and heat or co-generation • water storage or water treatment facilities • sewerage systems • waste and resource management facilities, and • remediation of contaminated land. It is noted that the SEPP contains no category for residential, commercial or retail projects. In addition, Sch 2 identifies State significant sites. Schedule 3 of the SEPP declares the following development to be SSI where it is permissible without consent under Pt 4. The making of such developments permissible without consent is usually achieved either by the SEPP (Infrastructure) or the SEPP (Major Development). • any infrastructure or other development that would, but for Pt 5.1, be an activity subject to Pt 5 for which the proponent is also the determining authority and an EIS is needed • port facilities and wharf or boating of facilities by, or on behalf of, a public authority with a capital investment value of greater than $30m • water storage and water treatment facilities and desalination plants by, or on behalf of, a public authority greater than a specific amount • pipelines requiring a licence under the Pipelines Act • submarine telecommunications cables, and

• development on lands reserved under the NPW Act by a person other than a public authority valued at greater than $10m. Schedule 5 provides for declarations of critical SSI being: • Pacific Highway upgrades of specified sectors • the North West Rail Link proposal, and • a Central Business District light rail extension.

¶67-100 Approvals for major infrastructure in other jurisdictions The issue of approval pathways for major infrastructure projects has been one faced in other jurisdictions. The best known of these relates to the United Kingdom experience, where the notorious Heathrow Airport Terminal 5 project required 37 applications under seven different pieces of legislation and took more than seven years to be approved.12 The UK Government commissioned Sir Rod Eddington to advise government on the long-term link between transport and the UK’s economic productivity, growth and stability, in the context of the government’s commitment to sustainable development. The Eddington Transport Study, released in December 2006, was prefaced by his advice to government, which provided as follows in relation to the planning system.13 “Reforming the planning system for major transport projects 1.172 In a modern democracy, it is beyond question that, when considering whether to grant planning approval, the planning system should play an impartial and transparent role in finding an appropriate balance between national, regional and local costs and benefits; between economic, environmental, and social objectives; and between the rights of individuals and society as a whole. 1.173 There are many conflicting views as to whether the system achieves the right balance on each of these points. For my part, I

am not convinced that the planning system gets the balance wrong: sensible judgements are made that allow the UK to grow and develop, but only where the schemes do not impose unjustified costs on individuals, the environment or society. This study is not the only piece of work that is concerned with the relationship between planning and the regimes for delivering major infrastructure. The Barker Review of Land Use Planning will also bring forward recommendations in this area. 1.174 However, I am convinced — and having listened to stakeholders’ views throughout the UK and read the responses to my call for evidence, it is clearly a view shared by many — that the system has evolved over several decades to the point at which it can impose unacceptable cost, uncertainty and delay on all participants and the UK more broadly. The current situation affects the UK’s competitiveness by deterring investments and limiting the responsiveness of the transport sector; it hinders the ability of Local Government and other interested parties to engage properly in the process and can sometimes effectively preclude them from doing so; and in extending planning blight and uncertainty, it can severely affect the lives of individuals directly affected by proposals. Interestingly, in conducting this work my team found that many European countries now encounter similar issues with their own planning systems. 1.175 The causes of these problems are complex, interlinked, and will vary from application to application. There is no easy solution and, of course, a distinction should be made between necessary time spent considering serious matters and unnecessary delays. Furthermore, it is not always the system itself which is at fault — deficiencies in the detail of the application or the option selection process undertaken by the promoter can appropriately lead to delay or additional costs whilst these deficiencies are rectified, so that a fair decision can be made. 1.176 There are a number of causes of unnecessary cost and delay, which have developed over many decades. These include: (i) lack of clarity about national policy, so that the public inquiry needs to determine the policy context for, and assess the basic

case for, the development; (ii) the adversarial nature of the inquiry process, which often involves the duplication of oral and written evidence and a lack of focus on the key issues; (iii) the existence of a second, separate phase of decision-making (the Ministerial decision stage, following an inspector’s report), often examining issues that should have been covered at inquiry; (iv) a cumbersome process with overlapping statutory and formal processes, with different legislation for different modes and often different Ministers accountable for each; and finally (v) the scope for legal challenge from beginning to end. 1.177 I believe that the cost, uncertainty and delay of the planning process can be reduced without compromising its fairness or thoroughness. I recommend a significant package of reform options that seeks to target the underlying causes. … … 1.179 … the key elements are to create a single system for strategic transport projects, which: • Puts direction from ministers at the heart of the process: at the outset, the government should produce clear statements of strategic objectives which articulate the need for strategic transport capacity and development, balancing national economic, environmental and social considerations and the balance between national needs and possible local impacts; • Introduces new statutory provisions to reinforce the requirement for full and wide-ranging public consultation when drawing up these national strategies, enshrining the role of individual members of the public and interested organisations in shaping the national priorities for the future; • Establishes a new independent Planning Commission for strategic transport schemes comprised of well-respected experts of considerable standing to conduct major inquiries and decide the planning decision for strategic transport schemes; and • Establishes clear and defined statutory rights of legal challenge at key stages of the process to form a complete framework for

challenges to decision-making by these proposals.” The Eddington Transport Study developed these recommendations in consultation with the Barker Review of Land Use Planning undertaken by Kate Barker. The Barker Review of Land Use Planning proposed reforms for the planning of major infrastructure as follows:14 “• the need for clearer statements of national policy by Government. This will provide greater certainty for developers and a robust framework within which planning decisions for major projects can be made; • the case for a new independent Planning Commission to determine planning applications for major projects, as a result of the front-end loading of the democratic mandate, and the scope of decision-making for this new body; and • the implications this new model will have for other aspects of the planning system, in particular the role of the Secretary of State in Town and Country Planning applications and appeals.” Footnotes 12

HM Government, 2007, Planning for a Sustainable Future White Paper, HMSO, London, p 29.

13

The Eddington Transport Study, 2006, The Case for Action: Sir Rod Eddington’s advice to Government, HMSO, London, p 56057.

14

Barker, K, December 2006, Barker Review of Land Use Planning, Final Report — Recommendations, HMSO, London, p 70.

¶67-110 UK Government releases “Planning for a Sustainable Future White Paper”

In response to the Barker Review and the Eddington Transport Study, the UK Government released a White Paper entitled “Planning for a Sustainable Future White Paper”15 in May 2007 with the following key proposals:16 • Produce national policy statements for key sectors to ensure that there is a clear policy framework for decisions on nationally significant infrastructure. • Help promoters of infrastructure projects to improve the way that they prepare applications by making better advice available to them, requiring earlier engagement with key parties such as statutory environmental and heritage bodies and the Highways Agency. • Clarify the decision-making process and achieve a clear separation of policy and decision-making by creating an independent Infrastructure Planning Commission (IPC) to take the decisions on nationally significant infrastructure cases. • Streamline the procedures for infrastructure projects of national significance by rationalising the different development consent regimes and improving the inquiry procedures for all of them. • Improve public participation across the entire process by providing better opportunities for public engagement at each stage of the development consent process. • Explore devolving decisions on smaller infrastructure projects, where appropriate, to local authorities. These proposals were enacted in the Planning Act 2008 (UK) with the scope for the infrastructure appeal pathway confined to energy, transport, water, waste and wastewater generally also delineated by capacity thresholds and with restrictions on what can be added (s 14– 30). It is envisaged that the IPC would consider about 10 applications per annum (with peak of 25),17 a far cry from the number of applications

considered in NSW under Pt 3A of 74 applications by the Minister in 2009–10.18 The UK law identifies National Policy Statements set by government as the tool to be applied by the independent decisionmaker for specific applications, the IPC, with requirements for environmental assessment and public inquiries. The UK system stands in contrast to that in New South Wales under both the former Pt 3A and the current Div 4.1 of Pt 4 and 5.1 in the following key respects: • The UK system was developed after extensive expert consideration and consultation. • The UK system provides a demarcation between the policy direction and the performance of an administrative function, while ensuring a clear and transparent linkage. • The UK system provides for defined processes for assessment and consultation. • The UK system is designed for a limited number of really important major infrastructure projects. Footnotes 15

HM Government, May 2007, Planning for a Sustainable Future. White Paper, HMSO, London.

16

ibid, p 34–36.

17

Owen, R, Anwar, S, Rahman, M & Bell, B, 2007, “What does the Future hold for Major Infrastructure Projects after the Planning White Paper?”, Journal of Planning and Environment Law, p 1409–1422 at p 1419.

18

NSW Independent Commission Against Corruption, Exercise of Discretion under Part 3A, op at, p 19.

¶67-120 Special legislation to override planning legislation Another feature of State government intervention in New South Wales to change the planning law in relation to particular developments or particular developers is the passage of special legislation to override the general planning law. Such special legislation falls into a number of categories: • special legislation to approve a particular development (Type 1) • special legislation with the effect of approving a particular development (Type 2) • special legislation to terminate legal challenges to planning decisions (Type 3) • special legislation with the effect of terminating legal challenges to planning decisions (Type 4) • special legislation to exempt a particular development from the operation of the planning system (Type 5) • special legislation to change how the planning law affects a particular development (Type 6), and • special legislation to change how the planning law affects a particular developer (Type 7). This of course does not include the issue of changing an EPI in relation to a particular developer or development.19 Examples of such special legislation to favour particular developers or particular developments are as follows: • Botany and Randwick Sites Development Act 1982 No 99 (NSW) (Types 1 and 3) • Cumberland Oval (Amendment) Act 1983 No 56 (NSW) (Types 5

and 6) • New Darling Harbour Authority Act 1984 No 103 (NSW) (Types 5 and 7) • Blue Mountains Land Development (Special Provisions) Act 1985 No 55 (NSW) (Types 1 and 3) • Bennelong Point (Parking Station) Act 1985 No 189 (NSW) (Types 5 and 6) • Sydney Harbour Tunnel (Private Joint Venture) Act 1987 No 49 (NSW) (Type 6) • State Owned Corporations Act 1989 No 134 (NSW) (Type 7) • Government Insurance Office (Privatisation) Act 1991 No 38 (NSW) (Type 7) • Mining Act 1992 No 29 (NSW) (s 65 and s 74) (Types 5 and 6) • Casino Control Act 1992 No 15 (NSW) (Type 6) • Walsh Bay Development (Special Provisions) Act 1993 No 3 (NSW) (Types 1 and 3) • Tweed River Entrance Sand Bypassing Act 1995 No 55 (NSW) (Type 6) • State Environmental Planning (Permissible Mining) Act 1996 No 27 (NSW) (Types 2 and 6) • Kooragang Coal Terminal (Special Provisions) Act 1997 No 138 (NSW) (Types 1 and 3) • Visy Mill Facilitation Act 1997 No 139 (NSW) (Type 6), and • Sydney Olympic Park Authority Act 2001 (Types 5, 6 and 7).

Such special legislation offends against an element of the rule of law, that fundamental principle expounded by Dicey in his “Introduction to the Study of the Law of the Constitution”20 as a foundation stone of our democratic system. That element is that “… the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”, in the words of Lord Bingham of Cornhill in the Sixth Sir David Williams lecture delivered on 16 November 2006.21 Such special legislation in New South Wales does not impose disabilities, such as Lord Bingham’s examples, of legislation directed at those with red hair and a statute sentencing the cook of Bishop of Rochester to be boiled to death without trial for poisoning the porridge in the Bishop’s kitchen. But in providing special advantage to a favoured developer or development not otherwise enjoyed by the general community, such special legislation is equally repugnant to the rule of law. Further, legislating to either quash proceedings currently underway or with the effect of quashing proceedings underway or indeed reversing a court decision already delivered and depriving one party of the fruits of their court action, is equally obnoxious to the rule of law as it infringes upon the proper separation between the judiciary and the legislature. Footnotes 19

See an example of an amendment to a SEPP during a hearing to change the outcome in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 at paragraphs [11]–[12] and [302]– [307].

20

Dicey, AV, 1920, Introduction to the Study of the Law of the Constitution, 8th edition, Macmillan, London, p 179ff.

21

The Rt Hon Lord Bingham of Cornhill KG, House of Lords, accessed on 2 D 2006, The Sixth Sir David Williams Lecture, The Rule of Law, p 12–13, www.cpl.law.cam.ac.uk/past_activities/the_rt_hon_lord_bingham_the_rule_ expanded in Bingham, T, 2010, The Rule of Law, Penguin Books, London.

¶67-130 Principles regarding State significant development and State significant infrastructure The key principles derived from the discussion on SSD and SSI are as follows: Principle 1: SSD is development that is declared as such under s 89C of the EPA Act. Development can be declared as SSD in two ways: (1) by a SEPP, which can apply to any development or any class or description of development (s 89C(2) of EPA Act), or (2) by order of the Minister and published in the Gazette, but only if the Minister has obtained and made public advice from the PAC on the State and regional planning significance of the development (s 89C(3) of EPA Act). The Minister is the consent authority for SSD (s 89D of EPA Act). Principle 2: A DA for SSD may not be approved if it is wholly prohibited by an EPI (s 89E(2) of EPA Act), but it may be approved if it is only partly prohibited by an EPI (s 89E(3) of EPA Act). However, the Minister may rezone land where a DA for SSD is wholly prohibited (s 89E(5) and (6) of EPA Act) where a DA for prohibited SSD is considered in tandem with a proposed EPI to permit the development with the Director-General becoming the relevant planning authority under Pt 3 to process the rezoning. However, both the rezoning and the DA are determined by the PAC (s 89E of EPA Act). Principle 3: All DAs for SSD must be accompanied by an EIS (s 78A(8A) of EPA Act). Principle 4: The provisions relating to the processing of a DA for SSD are as follows: • The Minister is the consent authority for the DA (s 89D(1) of EPA Act).

• The Director-General is to place the DA and accompanying information on public exhibition for a minimum period of 30 days and give notice and advertise the DA (s 89D(1) of EPA Act and cl 84–85 of EPA Regulation). • Any person may inspect the DA and may make a written submission or object to the DA (in which case grounds of objection need to be included) (s 89F(2)–(3) of EPA Act). • Amended, substituted or withdrawn and replaced DAs do not require re-exhibition unless the Director-General determines the new DA substantially differs from the original DA and the environmental impacts have not been reduced by the new DA (s 89F(4) of EPA Act). • Regulations may be made to make provision for EISs to accompany DAs for SSD, including their preparation and consultation requirements, and to require applicants to provide responses to submissions (s 89G of EPA Act). Environmental assessment requirements must be obtained from the DirectorGeneral and an EIS must comply with those requirements (Sch 2, cl 3 of EPA Regulation). The form and content of an EIS is specified (Sch 2, cl 5–10 of EPA Regulation). • The standard heads of consideration for all DAs in s 79C apply to the determination of a DA for SSD (s 89H of EPA Act). • Where a development consent has been granted for SSD, the following approvals are not required for that development (s 89J of EPA Act): – approvals under the Heritage Act – Aboriginal heritage impact permits under s 90 of the NPW Act – authorisation to clear native vegetation or State-protected land under the NV Act – a water use approval under s 89, a water management work

approval under s 90 and an activity approval (other than an aquifer interference approval) under s 91 of the WM Act, and – concurrences under Pt 3 of the CP Act, permits under s 201, s 205 or s 219 of the FM Act, and a bushfire safety authority under the RF Act. • Where a development consent has been granted for SSD, a number of subsequent approvals cannot be refused and must be substantially consistent with the development consent including (s 89K of EPA Act): – an aquaculture permit under the FM Act – an approval under s 15 of the MSC Act – a mining lease under the Mining Act – a production lease under the PO Act – an environment protection licence under the POEO Act – a s 138 approval under the Roads Act, and – a licence under the Pipelines Act. But this requirement does not apply to renewals or further approvals or environment protection licences after the first review. While an EIS is required for all DAs for SSD, the right of objector appeals to the NSWLEC under s 98 remains confined only to those DAs which are for designated development. An applicant has a right of merit appeal to the NSWLEC against the determination of a DA for SSD under s 97 of the EPA Act. Other standard provisions regarding deemed refusal, condition, lapsing and modification of consents apply equally to DAs for SSD. However, where development consent is granted for SSD and a merit

appeal is lodged, the consent is not suspended as would otherwise be the case and the applicant is entitled to proceed with the carrying out of the development despite the merit appeal (see the provisions discussion on operation of a development consent and appeal and review rights in Chapter ¶64). Savings and transitional provisions are provided for concept plans and project approvals under the former Pt 3A as well as applications lodged under Pt 3A (see Sch 6A of the EPA Act and cl 8A–8P of the EPA Regulation). In September 2011, the Minster for Planning delegated his functions in relation to determination of all DAs for SSD (and transitional Pt 3A applications) and all applications for SSI as well as modifications to each of these as follows: • to senior officers in the Department of Planning where the relevant council has not objected, there is no political donations disclosure and where there are less than 25 public submissions by way of objection, and • to the PAC in relation to all others, except applications made by or on behalf of a public authority (which are reserved to the Minister). Principle 5: Development may be declared to be SSI by a SEPP if it meets three threshold requirements: (1) It must be “development” as defined in s 4(1) and as extended in s 115T to include an activity within the meaning of Pt 5. This imports into Pt 5.1 the legal principles regarding the definition of development. (2) The development must be permissible without consent by virtue of the operation of a SEPP (such as the SEPP Infrastructure 2007). Thus, it does not apply to development which is permissible without consent under Pt 4 as a result of the operation of an LEP (such as development referred to in cl 5.12 of the Standard Instrument if adopted).

(3) The development must be “infrastructure” as defined in s 115T or alternatively must be an activity under Pt 5 where the proponent is also the determining authority and in the opinion of the proponent would require an EIS under Pt 5. (Section 115U of EPA Act) Principle 6: The Minister may, by declaration (either in a SEPP or by order separately published), declare specified development of any type on specified land to be SSI (s 115U(4) of EPA Act). Development (the subject of such a declaration) need not be infrastructure, nor be permissible without consent. Principle 7: Where specified development or specified land is declared to be SSI under s 115U(4) of EPA Act would otherwise be SSD, the development becomes SSI (s 115U(7) of the Act. However, where development that is declared SSI under s 115U(2) is also SSD, the development remains SSD (s 115(6) of EPA Act). Principle 8: The Minister may declare any SSI to be also critical SSI if, in the opinion of the Minister, it is “essential for the State for economic, environmental or social reasons” (s 115V of EPA Act). Principle 9: The process for obtaining the Minister’s approval to carry out development that is SSI is as follows: • The “proponent” applies to the Minister with a description of the infrastructure and such other matter as required by the DirectorGeneral, with the application lodged with the Director-General (s 115X of EPA Act). • The Director-General prepares and notifies the proponent of environmental assessment requirements. These must include an EIS in accordance with the EPA Act (s 115Y of EPA Act). • An EIS is submitted by the proponent to the Director-General who may require revisions to the EIS. The EIS must be publicly exhibited for no less than 30 days. In that period public submissions are invited. These submissions are provided to the proponent and the Director-General may require the proponent to

submit a response to the submissions and a “preferred infrastructure report” outlining changes to the SSI to either minimise its environmental impact or address issues raised in the assessment process. This preferred infrastructure report may be made public, but it is not required to be made public (s 115Z of EPA Act). • The Director-General provides an environmental assessment report to the Minister (s 115ZA of EPA Act) and the Minister, after considering the Director-General’s assessment report, may approve, refuse or require modification of conditions (s 115ZB of EPA Act). • Provision is made for a Staged Infrastructure Application seeking approval for “concept proposals for the proposed infrastructure” with “detailed provisions” to be subject to subsequent application (s 115ZD of EPA Act). • All of Pt 4 and Pt 5 (other than Pt 5.1) do not apply to SSI (s 1152F of EPA Act). Division 6 and 6A of Pt 4 (being the provisions relating to development contributions), apply to SSI that is not carried out by and on behalf of a public authority in the same way as they would to development under Pt 4 (s 115ZF(3) of EPA Act). • Similar to SSD, where an approval is given to SSI, the requirement to obtain some additional approvals is removed (s 115ZG of EPA Act), while for others, subsequent additional approvals must be substantially consistent with the approval under Pt 5.1 (s 115ZH of EPA Act). • The Minister is empowered on application of a proponent to modify an approval for SSI (s 115Zl of EPA Act). This power is similar to that previously provided in s 75W in relation to Pt 3A. “Modification” is defined broadly (s 115Zl of EPA Act) and the constraints applying to modifications of development consents under s 96, such as the test of “substantially the same development”, are not present.

• Privative clauses are included to restrict judicial review from three months after public notice is given in relation to an approval of SSI similar to s 104A (s 115ZJ of EPA Act). The only provision of Pt 5.1 that is mandatory in relation to an approval for SSI is the requirement to exhibit an EIS (s 115ZJ(2) of EPA Act). • Certain documents are required to be publicly available (s 115ZL of EPA Act). • An approval for SSI may (but does not have to) include a lapsing period and the surrender of other approvals (s 115ZL(3)–(5) of EPA Act). Principle 10: The following additional provisions apply to critical SSI: • Division 2A of Pt 6 of the EPA relating to the issue of orders does not apply (s 115ZP(4) of EPA Act). • A range of directions, orders and notices under other legislation cannot be made or given in relation to approved critical SSI (s 115ZG(3) of EPA Act), including: – interim protection orders and stop-work orders under the NPW Act and the TSC Act – an environment protection notice under the POEO Act, and – orders under s 124 of the LG Act 1993. • Additional bars on the rights of appeal and judicial review, other than applying generally to SSI in s 115ZJ, apply to critical SSI (s 115ZK of EPA Act). • No proceedings for civil or enforcement (under s 123) or under the POEO Act may be undertaken unless by the Minister or approved by the Minister for a breach of the Act, a breach of a condition of approval, or a breach of subsequent approvals referred to in s 115ZH(1).

Principle 11: Special legislation may apply to change the planning law in relation to particular development or particular developments to override the general planning law.

PART J EXISTING USES: PRE-ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 ¶68-010 Background to existing uses The law regarding existing uses essentially addresses the question of how planning change is implemented. When a new Environmental Planning Instrument (EPI) is made that changes the zoning or uses of land from that which pre-existed the plan, the question arises as to how the planning change envisaged by the newly made plan can be achieved or implemented. Where the planning change involves a change to a higher or more valuable zoning or use, there is an economic incentive for a landowner to implement the planning change envisaged by the new plan. Thus, where land previously zoned rural is then rezoned to residential, that planning change is likely to be implemented because the planning change increases the value of the land and there is an economic incentive for the landowner to achieve that increase in value. With continued population and economic growth, planning change is readily achieved by the process of “up-zoning”. However, where planning change results in a diminution in land value by zoning land to less valuable or more restrictive zones or uses, there is no economic incentive for a landowner to bring into being the planning change sought by the “down zoning”. The law on existing uses deals with how the planning transition caused by a change in planning controls is brought about, where there is no economic incentive for a landowner to implement such planning change.

¶68-020 Balance between rights of affected landowners and the public interest

The law on existing use rights is directed at the appropriate balance between the rights of landowners whose uses of their land are affected (usually adversely) by planning changes and the public expectation that the planning change envisaged by a new plan will actually be achieved. This balance between private property rights and the public interest in implementing plans is well-expressed by Kirby P in the NSW Court of Appeal in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 at p 345–346. “A conflict between private and social rights: Behind the competing legal arguments of the parties in this appeal lies a conflict between private and social rights. A wide definition of, and generous approach to, existing use rights tends towards the protection of private interests in land where these conflict with the social interests represented by the generally applicable planning law. A stringent approach to the proof of abandonment of an existing use right tends to favour private over social claims to the use of land. Identifying and defining existing use rights with specificity and precision tends to uphold the social interest represented by planning law and to confine derogations from that interest to a narrow class of case. The readier acceptance of abandonment of existing use rights conduces to the absorption of land, which exceptionally departs from the requirements of general planning law, into the code which otherwise generally applies. Seen in this way, existing use rights are a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land which has continued without abandonment. The resolution of this conflict of law and policy depends in this as in every case, upon a close analysis of the facts. Courts are therefore typically taken, as this Court has been in the present instance, to detailed evidence concerning the use of the subject land over many years. In the end, the task for the court in each case is one of cataloguing the facts and characterising them for

the purpose of the applicable statute. But it is important to recognise the tension which I have identified. In upholding the purpose of the statutory protection of existing use rights and safeguarding the valuable private rights of property secured by them, the courts have not taken, in the past, a pernickety or narrow approach to the definition of existing use rights. Indeed, such an approach is (as I will show) contrary to the authority of the High Court of Australia. Likewise, and for the same reasons, courts have [p 346] adopted a stringent approach to the proof of the abandonment of an existing use right, once such right is established. Adopting this approach to the facts of the present case explains the essential reason for my opinion that the appeal must be dismissed. The approach to be taken is established by the authority of the High Court. It has been repeated many times, including in this Court. Adopting that approach to the classification of the existing use rights in the present case, it is my opinion that Cripps J came to the correct conclusion on that aspect of the dispute. I am likewise of the view that his Honour came to the correct conclusion on the appellant’s argument that the existing use had been abandoned. Obviously, the two arguments are interrelated. The more broadly is defined the existing use which is protected by the law, the more difficult is it to show that use of the land for somewhat different purpose is impermissible. Similarly, it is then more difficult to reach a conclusion that the original use, as so defined, has been abandoned.” Additionally, McHugh JA in the NSW Court of Appeal in Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 (with whom Samuels JA and Hope JA agreed) held at p 309–310: “The object of ‘existing use’ provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of

these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because ‘existing use’ provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which [p 310] reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an ‘existing use’ so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.”

¶68-030 Circumstances included as existing uses It is important to identify what precisely are the transitional circumstances arising from the making of a new plan that need consideration. There are three circumstances that require consideration: (1) where a development was commenced prior to the introduction of planning control affecting that development and a plan has subsequently been made which provides that the development in

question is now permissible with development consent (2) where a development was commenced prior to the introduction of planning control affecting that development and a plan has subsequently been made which provides that the development in question is now prohibited, and (3) where a development was commenced after the introduction of planning control which provided that the subject development was permissible with consent and a development consent was obtained for that development, but a plan has subsequently been made which provides that the development in question is now prohibited. The legal provisions differ in relation to each of these circumstances. While all three circumstances are loosely and generically described as “existing uses” (and indeed the legal provisions in relation to all three circumstances are addressed in Pt 4 Div 10 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) entitled “Existing Uses”), the strict legal descriptions of the three are not uniform and have changed over time. Under the pre-EPA Act law of Pt 12A of the Local Government Act 1919 (NSW) (LG Act 1919), circumstances (1) and (2) were defined as “existing uses”. The common feature was that they related to developments which commenced prior to the introduction of planning control affecting them, but subsequently, a plan was made to regulate them, either by making them permissible with consent or prohibited. Under the EPA Act, circumstances (2) and (3) are defined as “existing uses”. The common feature is that they are related to developments which commenced at a time when they were allowed (either without consent, or with consent and such consent was obtained), but are now prohibited by a plan. Under the EPA Act, circumstance (1) is now described as an “other lawful use”.

¶68-040 Pre-Environmental Planning and Assessment Act legislation

An examination of the law relating to “existing uses” prior to the EPA Act (ie in Pt 12A of the LG Act 1919) is relevant because many of the provisions in the EPA Act relating to existing uses were crafted in response to the judicial interpretation of the LG Act 1919. They were designed to alter or modify principles established by the courts concerning existing uses in relation to Pt 12A of the LG Act 1919. Prior to the enactment of Pt 12A of the LG Act 1919 by the Local Government (Town and Country Planning) Amendment Act No 21 of 1945 (NSW), a primitive form of planning control was provided by s 309 of the LG Act 1919 which enabled the Governor on the application of a council to declare a portion of an area to be a residential district in which the erection and use of a building for the purpose of trades, industries, manufactures, shops, places of public amusement and residential flat buildings, as are described in the proclamation, was prohibited. Section 309(2) of the LG Act 1919 provides for protection of existing uses affected by a Residential District Proclamation. It provided as follows: “309.(2) Nothing in this section shall preclude the continuance of the use of any building for any purpose for which the same was used immediately before the date of the proclamation aforesaid, or the alteration, enlargement, rebuilding or extension of any building used for any such purpose whether or not such alteration, enlargement, rebuilding or extension involve the use of adjoining land which immediately before the date of the proclamation was in the same ownership or for such other purpose as the council thinks reasonable in the circumstances.” (Substituted subsection inserted by Act No 33 of 1927, s 10(b).) In relation to development under prescribed planning schemes, Pt 12A of the LG Act 1919 provided for no legislative protection for “existing uses”. However, provisions relating to existing uses were contained in prescribed planning scheme ordinances themselves. Thus, in the County of Cumberland Planning Scheme (County Scheme) (which was given force by s 2 of the Local Government

(Amendment) Act 1951 (NSW) which deemed it to be a prescribed planning scheme ordinance (PSO)) defined “existing use”, and “existing building” and “existing work” in cl 3 as follows: “‘Existing building’ and ‘existing work’ mean respectively a building or work erected, constructed or carried out before the appointed day, and a building or work to which the provisions of clause 53 apply. ‘Existing use’ means a use of a building, work or land for the purpose for which it was used immediately before the appointed day and, in the case of a building or work to which the provisions of clause 53 apply, the use of such building or work for the purpose for which the erection of the building or the carrying out of the work, as the case may be, was approved.” The “appointed day” was defined in s 2 as the day on which the Local Government (Amendment) Act 1951 (NSW) commenced, namely 27 June 1951. Clause 32 of the County Scheme then provided: “32. An existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued.” The County Scheme then permitted alterations, enlargements, rebuilding and extensions of an existing building or existing work, and the erection of new buildings or new works (cl 33), changes of use (cl 34) and provisions regarding existing buildings, existing works and existing uses carried out after 12 July 1946 in contravention of the Town and Country Planning (General Interim Development) Ordinance (Ordinance No 105) or any approval thereunder. Similar provisions were found generally in prescribed PSOs.1 In relation to land subject to an Interim Development Order,2 protection for existing uses was provided in the statute itself in the qualification to s 34U(4), which provided as follows: “34U(4) Interim development of any land to which an interim development order applies shall not be carried out except as may

be permitted by or under the authority of the interim development order and subject to such conditions and restrictions as may be imposed by or under the interim development order and to such provisions as may apply by virtue of the interim development order: Provided that nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order.” In considering the interpretation of provisions of Pt 12A of the LG Act 1919 and prescribed PSO relating to existing uses, a number of principles were established, which are set out in the following sections. Footnotes 1

See for example cl 26–30 of the Lane Cove PSO and cl 16– 21 of the Blue Mountains PSO.

2

Inserted into Pt 12A of the LG Act 1919 by the Local Government (Town and Country Planning) Amendment Act 1962 No 7 (NSW) which commenced on 1 July 1962.

¶68-050 Characterisation of the existing use It is necessary to identify or characterise the purpose of the existing use, in order to identify the scope of the use protected. The issue of characterising an existing use is extensively considered in Chapter ¶21. The leading authority on this question is the High Court’s decision in Shire of Perth v O’Keefe [1964] HCA37; (1964) 110 CLR 529; 10 LGRA 147 (see ¶21-030 and ¶21-100). It is important to appreciate that the task of characterising an existing

use is undertaken in abstract and not by reference to the categories of uses in the applicable planning instruments. Where there is a development consent applying, it is undertaken by reference to that consent.

¶68-060 The extent of area subject to existing use rights The question of the area of land in relation to which existing use rights apply is addressed in the following cases. Parramatta City Council v Brickworks Ltd In Parramatta City Council v Brickworks Ltd [No 3] [1972] HCA 21; (1972) 128 CLR 1 (Brickworks), the High Court heard an appeal arising from proceedings commenced by the Council for an injunction to restrain Brickworks from extracting clay on what was called the “new land”. Brickworks owned land at Eastwood, which had been used since about 1912 as a brickworks. This land, called the “old land”, contained a kiln and buildings for brickmaking, and a quarry from which clay and shale were extracted for the brickmaking. Between 1938 and 1939, Brickworks purchased additional land, called the “new land”, which adjoined the old land. The new land had been purchased to provide for future reserves of clay and shale for the brickworks. In the 1960s, Brickworks extended part of the kiln and part of the quarry onto the new land. The land had been subject to a Residential District Proclamation since 1931. Under the County Scheme, which took effect in 1951, both the old and new land were zoned as an extractive industrial area, where development for the purpose of an extractive industry was permissible with consent, and existing uses protected under cl 32 (cited above). The issue before the High Court was whether it was lawful for Brickworks to extend its quarry onto the new land without consent but in reliance upon the protection of existing uses afforded by cl 32 of the County Scheme. Gibbs J (with whom Barwick CJ, Menzies J, Owen J and Walsh J agreed) held at paragraphs [18]–[19]: “18. The appellant contended that the new land was not used for the purpose of quarrying or brick-making immediately before 27th

June 1951 and that therefore cl. 32 has no application in respect of the use of the new land. I would agree that the word ‘use’ in cl. 32 means a present use; it does not include a contemplated or intended use. It is not enough to bring cl. 32 into operation that land has been acquired with the intention of using it for a particular purpose in the future. On the other hand, it is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it. Thus in Council of the City of Newcastle v Royal Newcastle Hospital [1959] HCA 14; (1959) 100 CLR 1 it was held that land which was acquired by a hospital to keep the atmosphere clear and unpolluted, to bar the approach of factories and houses, to provide quiet and serene surroundings for patients and to give room for the expansion of the activities of the hospital was used for the purposes of the hospital although no physical use was made of it, and their Lordships said (1959) 100 CLR, at p 4 that ‘an owner can use land by keeping it in its virgin state for his own special purposes’. In the same case, in this Court, Taylor J. said [1957] HCA 15; (1957) 96 CLR 493, at p 515: ‘The uses to which property of any description may be put are manifold and what will constitute ‘use’ will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s. 132’ (of the Act) ‘itself shows plainly enough that the ‘use’ of land will vary with the purpose for which it has been acquired and to which it has been devoted … But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land.’ The facts of that case are of course distinguishable from those of the present, but those remarks support the view, which I accept as correct, that if the whole of the land in question was acquired for and devoted to the purpose of quarrying and brick-making, the whole may be held to have been used for that purpose although

only part of it was physically used. Obviously where an expanse of land has been acquired for the purpose of quarrying it cannot, because of practical considerations, be excavated all at once, but this does not mean that the part which has not been actually dug up is not used for the purpose of quarrying. Similarly a farmer, who has acquired land for the purposes of an orchard, may be said to use the whole of it for that purpose, although only part has been planted with trees. (at p 22) 19. In the present case, immediately before 27th June 1951 the respondent owned one tract of land, all of which had been acquired for the purposes of the quarry and brickworks, and all of which was devoted to those purposes. Some of the land was physically occupied by the buildings and by the brick pit which was in the process of gradual extension. It is beyond argument that some of the land was at the relevant date used for the purpose of quarrying and brick-making. In my opinion there is no justification for regarding the new land as separate from the old, or for saying that the old land was used, but the new land was not, immediately before 27th June 1951. The mere fact that an area of land comprises a number of parcels with separate titles and different histories does not mean that each parcel should be regarded separately for the purposes of cl. 32. If it were otherwise there would be no justification in the present case for treating the old land as an entity; each parcel comprising the old land would have to be separately regarded. However, when cl. 32 speaks of ‘an existing use of land’ it refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title. It is commonplace that in Sydney land which is devoted to one purpose, and generally treated as being in fact one piece of land-whether it be the site of a commercial building or industrial enterprise or the grounds of a dwelling house-frequently comprises various parcels which remain shown on separate title deeds. There is however nothing in the provisions of the Planning Scheme Ordinance that suggests a concern with conveyancing details rather than with actual use.”

Conclusions The following conclusions may be derived from Brickworks: • In the existing use provisions, “use” means a present use, not a contemplated or intended use. But a present use includes land which has been acquired with the intention of using it for a particular purpose in the future as there does not need to be a physical use of land to constitute a present use of land. • In determining the use of land, the reference to “land” refers to land which from a practical point of view should be regarded as one piece of land and not to land contained within the boundaries of one subdivision or described in one certificate of title. The planning law is concerned with the actual use of land, not with conveyancing details. Eaton & Sons Pty Ltd v Warringah Shire Council In Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 (Eaton v Warringah), the High Court heard an appeal against an order restraining the company from leasing land at Forestville for timber and hardware storage and distribution. The company had carried on the business of a timber and hardware selling merchant. It had purchased three lots of land. The company, with consent, had used one of these three lots for the storage of timber with part of the land uncleared; this lot was partly zoned residential, while the balance of the lands owned by the company were zoned industrial. The Council sought to restrain the use of the residentially zoned land for the stacking of timber. The Warringah PSO contained a provision protecting existing uses similar to that in the County Scheme considered in Brickworks. The issue in contention in this case was whether the lot, partly zoned residential and used (in part) for timber storage while part remained uncleared, was an existing use as a timber merchant or whether only part of it was. On this question, the High Court was divided. The majority (Barwick CJ, Walsh J and Gibbs J) held that the entire lot had existing use rights as a timber merchant, while the minority (Stephen J and McTiernan J) held that it did not. Barwick CJ held at paragraphs [7]–

[8] as follows: “7. … It is clear, in my opinion, from this Court’s decision in the case to which I have referred, that physical use is not an indispensable element in an existing use of land for the purposes of such a provision as cl. 30 of the Warringah Scheme. Land which is kept vacant for use as the needs of a business demand is not of necessity properly designated, in my opinion, as land not in existing use, but merely intended for future use. Much will depend on the extent of its integration with land in actual physical use and the nature of the business being conducted. The title boundaries of parcels will not be, of themselves, definitive. But, particularly in the case of suburban allotments, it will be a rare case, in my opinion, in which that part of an allotment not in actual physical use will not have the same existing use as the other part of the allotment used for the purposes of a business. But, of course, all the relevant facts need to be known and interrelated before a conclusion as to existing use in the relevant sense is drawn. No doubt there will be cases, particularly in relation to expanding businesses, where the line between a reserve of land intended only for future use and the present use in a business of vacant and physically unused land may be extremely fine. But I cannot think that it will be often that a line can properly be drawn within a suburban allotment confining the existing use of the allotment to the area of physical use, treating the balance of the allotment as land intended only as a reserve for future use. Progressive physical use of the allotment, even though the progress be at irregular and long spaced intervals, would mean, if such a line were drawn, that the existing use of such an allotment as lot C1 would always be coterminous with its physical use. But it seems to me that the relevant use of land in the situation of lot C1 will not vary from time to time as its physical use varies according to the exigencies of the business to whose purposes the land as a whole has been devoted. (at p 274) 8. Whilst the purpose for which land was purchased will not, of itself, determine its existing use at any subsequent time, that purpose coupled with the integration of the land with land in

undoubted business use will, in my opinion, be an important factor tending towards the conclusion that the land is currently used for the purposes of the business carried on on the land with which it is integrated. (at p 274)” Gibbs J (with whom Walsh J agreed) held at paragraphs [6]–[8] as follows: “6. The problem in the present case is to identify the land to which the existing use can be said to have attached. In Parramatta City Council v Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 this Court considered a somewhat similar question which arose under cl. 32 of the County of Cumberland Planning Scheme Ordinance, whose terms are identical with those of cl. 30 of the Ordinance in the present case, namely whether the whole of the land there in question (the old land and the new land) had been used for the purpose of quarrying and brickmaking, although only part of it (the old land) had been physically so used. The majority of the Court held that the old and the new lands together formed one entire area and that the whole had been used for quarrying and brickmaking. Of course, the use of land as a quarry may be distinguished from its use as a timber yard on the ground that the former use does, and the latter does not, necessarily involve a progressive use of the site. However, in my opinion the significance of Parramatta City Council v Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 for present purposes is that the majority of the Court held that when a provision such as cl. 30 speaks of an existing use of land it refers to land which from a practical point of view should be regarded as one piece of land. In that case, the land in question comprised different parcels acquired at different times, and it was in relation to those facts that I then said (1972) 128 CLR, at p 23: ‘It is commonplace that in Sydney land which is devoted to one purpose, and generally treated as being in fact one piece of land-whether it be the site of a commercial building or industrial enterprise or the grounds of a dwelling housefrequently comprises various parcels which remain shown or [sic. Should read “on”] separate title deeds. There is however

nothing in the provisions of the Planning Scheme Ordinance that suggests a concern with conveyancing details rather than with actual use’. (at p 282) 7. In the present case, lot 2 forms one parcel of land. In other words, we are concerned with land all of which is entirely within the boundaries of one subdivision. No doubt, in accordance with the reasoning in Parramatta City Council v Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 land within one subdivision might in appropriate circumstances be regarded from a practical point of view as including more than one piece of land. Nevertheless, the fact that all the land under consideration forms one parcel-one unit in a subdivision-tends to support the view that all the land should be regarded as one piece, or as the ‘land’ to which cl. 30 of the Ordinance applies, at least if the area in question is not very large. (at p 282) 8. The facts relevant to the present question may be summarized as follows. The appellant in 1955 purchased lots 5, 8 and C1 for the purpose of establishing a timber reselling yard thereon. Approval was given by the respondent Council under the County of Cumberland Planning Scheme Ordinance to the use of all three lots for that purpose. Lot C1 was subsequently subdivided into lots 1 and 2, but, as counsel conceded, nothing turned on this fact. Immediately prior to 5th June 1963 lots 5 and 8 and part of lot 2 were physically used for the purposes of the timber reselling yard. Lot 2 comprised an area of about two acres and the part of it which was physically used for the purposes of the timber reselling yard was not separated by any fence or other defined boundary from the part not physically so used. The part of lot 2 which was not physically so used was not used for any other purpose. In the circumstances, it seems to me that it is not right to treat lot 2 as comprising two different areas of land. In a practical sense it comprised one piece of land, used for one purpose, that of a timber reselling yard, although the use did not physically extend to the whole of the land. (at p 282)” Conclusions

The following conclusions may be derived from the majority in Eaton v Warringah: • The title boundaries of parcels will not be of themselves definitive. But in the case of suburban allotments, it would be rare for one part of an allotment not in actual physical use not having the same existing use as the remainder. This is particularly the case as the area not in actual physical use is not being used for any other purpose. • Relevant factors in determining the use of land not in actual physical use would be the reason the land was purchased and the extent of integration with land in undoubted actual use (although the reason for purchasing the land would not of itself be determinative). In dissent, Stephen J (with whom McTiernan J agreed) noted the importance of a proper appreciation of the particular use claimed in deciding whether land was being used for that purpose. Thus, he held that a characteristic of an extractive industry was the existence of future reserves of clay and shale. He considered that, in the case of a timber yard, such a use is essentially an active physical use and there is nothing to suggest that use inherently required retention of substantial areas in an unused condition. If it was held for future possible expansion, that is a contemplated or intended use, not a present use.

¶68-070 Requirement that an existing use be continuous and not abandoned The question of the need for an existing use right to be continuous and not abandoned is addressed in the following cases. Woollahra Municipal Council v Banool Developments Pty Ltd In Woollahra Municipal Council v Banool Developments Pty Ltd (1973) HCA 65; (1973) 129 CLR 138 (Banool), the High Court heard an appeal in relation to applications based upon a claim by the company

that it held existing uses rights over four adjacent parcels of land in Ocean Street, Woollahra. The land was affected by a Residential District Proclamation made under s 309 of the LG Act 1919 in 1950 prohibiting the carry out on the land of trades and the erection of any building for the purposes of any trade or sale. The land had been zoned Living Area by the County Scheme in 1951 and similarly in the Woollahra PSO which took effect during the proceedings. The company required the properties to redevelop as one site. It lodged applications with the Council and referred to the rebuilding of shops and a service station. The Council refused these applications. At issue in the proceedings was whether the existing uses had been abandoned. Mason J (with whom Barwick CJ, McTiernan J and Gibbs J agreed) held at paragraphs [12] and [37] as follows: “12. The expression ‘the continuance of the use’ in its natural and ordinary sense may be conveniently rendered as ‘the continued use’. So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment, nor a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use. (at p 144) … 37. With regard to the properties other than nos. 34 and 34A, in the light of the views which I have expressed as to s. 309 and cl. 32, it has not been suggested that the conclusions reached by the primary judge as to the ‘existing use’ of those properties and, in so far as it occurred, the abandonment of ‘existing uses’ should be disturbed. There is, however, an issue as to nos. 34 and 34A for the appellant submitted that if the view which I have expressed as to the law should be taken, then it should be held that the existing use of the premises was abandoned by the respondent. I do not agree with this submission. It is plain enough that the respondent has at all times intended that the premises should be

used as a service station and for car parking and that the only reason why that intention has not been executed is that the Council refused to grant the application and that litigation has ensued. In the circumstances the lapse of time, since the premises were last used as a motor garage, although considerable, is not enough to warrant the conclusion that the existing use was abandoned or terminated. (at p 149)” Conclusions The following conclusions can be derived from Banool: • An existing use is required to be continuous and not terminated or abandoned, but it may have interruptions or breaks, provided these do not result in termination or abandonment of the use. • An existing use is not abandoned when there is an ongoing intention that the premises be used for the existing use, but the use has been interrupted for reasons such as intervening litigation.

¶68-080 Changes to the intensity of an existing use The question of the level or intensity of activity protected under existing use rights is addressed in the following cases. Norman v Gosford Shire Council In Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83 (Norman v Gosford), the High Court heard an appeal in relation to proceedings by the Council to restrain the use of land near Gosford for an extractive industry where the operator claimed to hold an existing use. At the appointed day in 1968, it was found the operator had used the land for the removal of topsoil and fill, with soil being dug by hand and loaded into trucks. The activity was a small-scale one with three to five transactions a year yielding miniscule revenue of between $46 and $1,011 for an entire year. In 1972, there was a marked change in the scale of soil removal to a full-scale quarry with bulldozers and trucks working on one or more quarry faces removing large quantities of soil. At first instance, it was held this change in the intensity and

scale of the use amounted to a change of use. Mason J (with whom Barwick CJ and Jacobs J agreed) held at paragraph [6]: “6. To my mind the crux of the matter is that at all times after 1st January 1972, as before, the use to which the land was put was the removal of topsoil and filling for the purpose of sale. The nature of this use was not altered because there was an expansion in production by reason of increased demand or because efficient machines were employed in production in place of manual labour or because excavations made in the course of removal assumed the appearance of ‘quarry faces’ whereas before they wore a different aspect. (at p 86)” Conclusion The following conclusion may be derived from Norman v Gosford: • Where an existing use applies, any increase in the intensity of the use or expansion in production does not alter the existing use or its protection.

¶68-090 The onus of proof of an existing use The question of the onus of proving an existing use right is addressed in the following case. Morris v Woollahra Corporation In Morris v Woollahra Corporation [1966] HCA 65; (1966) 116 CLR 23, the High Court held that the onus of proof of an existing use lay with the person asserting their property had such a use. The Court held at paragraph [10]: “10. … However, it was further suggested that in proceedings such as these the onus lay upon the respondent, the plaintiff in the suit, of establishing that the premises were not being so used at the relevant time. The learned judge of first instance rejected this contention conformably with the consistent decisions of the Supreme Court to the contrary (see e.g. Bourne v Marrickville Council (1954) 19 LGR (NSW) 218; Forrester v Marrickville Municipal Council (1954) 19 LGR (NSW) 232 and Davis v

Pember (1958) 5 LGRA 78) and in our view he did so rightly. It is, we think, unnecessary to say more than that his decision proceeded upon the principles reiterated in this Court in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 and Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143 (at p 34).”

EXISTING USES: THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 PROVISIONS ¶69-010 The Environmental Planning and Assessment Act provisions on existing uses As can be seen from the previous discussion, the High Court interpreted the existing use provisions of the law prior to the Environmental Planning and Assessment Act 1979 (EPA Act) in a manner highly favourable to private owners, giving an expansive scope to the extent of protection afforded to existing uses. Using Kirby P’s reference to the law on existing uses in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344 (Boyts Radio) as a conflict between private and community rights, the approach of the High Court towards the pre-EPA Act law on existing uses favoured private as opposed to community claims on land use. The provisions on existing uses contained in the EPA Act need to be seen as a reaction to, and a modification of, the principles established by the High Court in relation to the pre-EPA Act law on existing use. The current principal provisions in the EPA Act regarding existing uses are in s 106–109B of the EPA Act. Key features of note in the provisions of the EPA Act relating to existing uses are as follows: • The circumstances covered by the definition of an “existing use” in s 106 have changed from those covered by the definition of an existing use under planning scheme ordinances (PSOs) such as

the County of Cumberland Planning Scheme (County Scheme) Ordinance and s 243U(4) of the Local Government Act 1919 (NSW) (LG Act 1919), as discussed previously. Under the EPA Act, an existing use is a use which was permissible either without consent or with consent (in which case it has the benefits of a development consent) and subsequently, an Environmental Planning Instrument (EPI) came into force with the effect of prohibiting that use. Such existing uses are subject to s 107 and s 108 and, where the subject of a development consent, s 109B. For uses which were permissible without consent, and subsequently, an EPI came into force with the effect of requiring consent for that use, such uses are subject to s 109 and are described as “other lawful uses”. • The extent of area subject to existing use and other lawful use protection is limited to areas actually physically used, with the effect of reversing the decisions in Parramatta City Council v Brickworks Ltd [No 3] [1972] HCA 21; (1972) 128 CLR 1 (Brickworks) and Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 (Eaton v Warringah), and preventing alterations, extensions, increases in area, enlargement and expansion (s 107(2) and s 109(2)). • The capacity of an existing use and other lawful use to intensify or expand is not included within the scope of protection, with the effect of reversing the decision in Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83 (Norman v Gosford) (s 107(2)(c) and s 109(2)(c)). • A use which has unlawfully commenced is not made lawful by any subsequent event, other than the making of an EPI, which provides it is permissible without consent or the granting of a development consent (s 109A(1)). Further, such unlawfully commenced uses are always taken to have been development under any deemed EPI, thus, overcoming the decision in Vumbaca v Baulkham Hills Shire Council [1979] HCA 66; (1979) 141 CLR 614; (1979) 39 LGRA 309 (Vumbaca) (s 109A(2)).

• Because of the inclusion of development pursuant to a development consent but subsequently made prohibited by an EPI with the category of an existing use, it was necessary to protect the full implementation of development authorised by the consent but as yet incomplete from the limitations in s 107(2) (s 109B). Thus, for example, if development consent was granted to a quarry and an EPI was made making development for the purpose of extractive industry prohibited when the quarry had only extracted part of the land authorised by the consent, s 109B operates to enable the holder of the consent to fully implement the consent and extract all areas approved under that consent without s 107(2) operating to limit the consent only to areas used and buildings/works actually built at the date of prohibition coming into force and, in effect, revoking part of that consent. • Having significantly limited the scope of existing uses and other lawful uses, s 108 provides for the making of regulations to enable alterations, extensions, enlargements, expansions, intensifications of the existing use or changes to that existing use to occur. • Where an existing use (as provided in s 106) is subject to a development consent, the holder of that consent is entitled to carry out the development (the subject of that consent), irrespective of the limitations otherwise applicable under s 107(2). • A statutory presumption of abandonment of an existing or other lawful use is provided if the use ceases to be actually used for a continuous period of 12 months. As a statutory presumption, it is capable of being rebutted, but it alters the onus of proof to the person claiming a use has not been abandoned if it has ceased for a 12-month period. Section 109(2) and (3) and s 109A were inserted by the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments) (s 5 and Sch 5), while s 109B was inserted by the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 No 90 (NSW) (s 4 and Sch 1).

The Environmental Planning and Assessment Regulation 2000 (NSW) includes regulations made in accordance with s 108 to require development consent for enlargement, expansion, intensification, alteration, extension, rebuilding and changes to other uses (cl 39–46). There are limitations on the scope for development applications (DAs) under these provisions: • Enlargements, expansions, alterations, etc, may be approved under cl 41 if they meet the following criteria in cl 41(2): “(a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use.” • Development consent may be granted to enlarge, expand or intensify an existing use (cl 42), to alter or extend buildings or works (cl 43), or rebuild a building or work (cl 44), provided it is for the same use and no other use and it “must be carried out only on the land on which the existing use was carried out immediately before the relevant date” (cl 42(2)(b), cl 43(2)(b) and cl 44(2)(b)). Under the Environmental Planning and Assessment Regulation 1980 (NSW) (EPA Regulation 1980), this restriction was not confined to the land on which the existing use was carried out, but on the allotment or allotments on which the use was carried out (see cl 52(2)(b) and 53(2)(b) of the EPA Regulation 1980), but the current requirement that it be on the land on which the existing use is carried out was inserted in the Environmental Planning and Assessment Regulation 1994 (NSW) (cl 40(2)(b), 41(2)(b) and 42(2)(b)). • Development consent may be granted for a change of use from an existing use to another use, but that other use may not be a

prohibited use under the applicable EPI. The limitation that the changed use cannot be a prohibited use was inserted by the Environmental Planning and Assessment Amendment (Existing Use) Regulation 2006 No 131 (NSW) (cl 45).

¶69-020 Determining the existing use The definition of the nature of use for which protection is afforded by s 107 (other than where a development consent applies) and s 109 of the EPA Act requires the process of characterisation in abstract as established in Shire of Perth v O’Keefe (1964) 110 CLR 529 (Shire of Perth v O’Keefe) — discussed previously in Chapter ¶21 at ¶21-030 and ¶21-100 in relation to characterisation. That characterisation must be at a level of abstraction appropriate for planning purposes: Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157 (Lujeta) at p 159–160. The process of determining an existing use is described by Mahoney JA in Hudak v Waverley Municipal Council (1990) 70 LGRA 130 (Hudak) at p 133 as follows: “The problem of determining what, for the purposes of a particular town planning enactment, was the existing use of land at a particular date has peculiar difficulties: see, eg, Shire of Perth v O’Keefe (1964) 110 CLR 529 and Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138. There is danger in over conceptualising the process of determination. Existing use is a term intended in town planning legislation — no less in that based on the Environmental Planning and Assessment Act, 1979 — to mitigate the effects of rigidly applying town planning requirements. However, it is, in my opinion, often of assistance to see the determination of such a question as involving three steps. First, the Court must determine what, as a matter of primary fact, was happening on or in relation to the land at the particular date. Secondly, it must decide what was the objective or purpose for which, in a general sense, those things were being done. And, thirdly, it must decide how that objective or purpose is to be categorised, by a formula of words which is relevant and appropriate for the purposes of the particular town planning legislation.”

On the question of identification of an existing use, Hope AJA (with whom Kirby P agreed) in Hudak at p 135 held that two things emerge from previous decisions: “(1) The identification of existing uses is quite distinct from the categorisation and definition of ‘uses’ contained in those parts of plans which specify permitted or prohibited uses in particular zones or areas. (2) The identification of the existing use is not to be approached through a meticulous examination of the details of processes or activities, or through a processed categorisation of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate description of the purpose being served by the use of the premises at the material date.” To establish an existing use, it does not matter that the use is smallscale and infrequent. In Steedman v Baulkham Hills Shire Council [No 2] (1993) 80 LGERA 323 (Steedman [No 2]), the NSW Court of Appeal heard an appeal in long running extensive litigation regarding whether a quarry at Kenthurst was another lawful use protected by s 109(1). The primary judge, Stein J, found that the owner had used the land in July 1946 (the relevant initial date) to occasionally split flagstones from floaters. Stein J held that these activities were small in scale and infrequent and were insufficient to constitute a separate and distinct use of land. On appeal, Kirby P (with Meagher JA and Handley JA agreeing on this issue) held at p 333 and 335 as follows: “As I read the judgment of Stein J, his Honour found as a fact that there was sufficient extractive industry to constitute a ‘use’ of the land for the purpose of extractive industry both before 1946 and in 1977. This appeal therefore turns upon whether his Honour erred in holding that what use there was did not amount to a separate and independent use of the land such that it could not create existing use rights for the purposes of s 109 of the Environmental Planning and Assessment Act. … [p 335]

… The question is whether there is room for a principle that a minimal or trivial use is to be disregarded, and if so where the line between ‘use’ for the purpose of the Environmental Planning and Assessment Act and minimal use is to be drawn. It is the view of this Court that a minor use is not to be ignored simply because it is minor. In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, Glass JA said (at 161) that ‘it is immaterial that [one use] may be overshadowed by the others whether in terms of income generated space occupied or ratio of staff engaged’. One might add that it is immaterial that other contrasts of a similar nature might be drawn between the various uses of land. Merely because orcharding was carried out every day (assuming it was) and floaters were cut only occasionally, the conclusion cannot be drawn that the extractive use can be ignored: see also, Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409; Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216–217. In Norman v Gosford Shire Council (1974) 132 CLR 83 the High Court found that the winning by hand and loading onto trucks of topsoil and filing on a small scale for twenty years, to a value in one particular year of only $46, was sufficient activity to constitute a ‘use’. On that basis, even if the principle of minimal use referred to is an appropriate one, it will not have any application in this case. The use here, although concededly [sic.] minor, certainly existed, was real and was not merely ancillary to another ‘true’ use of orcharding or small farming. In the words of Glass JA in Foodbarn, the fact that it was a use overshadowed by others did not make it less a use. The relativities were ‘immaterial’.” Thus, in Steedman [No 2], the NSW Court of Appeal concluded that even if an existing or other lawful use is a minor one at the relevant day, it is not to be ignored or discounted as an existing or other lawful use simply because it is minor. Where an existing use has the benefit of a development consent, the principles of characterisation in Shire of Perth v O’Keefe do not apply. As Stein JA (with whom Spigelman CJ and Cripps AJA agreed) in the

NSW Court of Appeal in Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 (Workmate) held at p 122, paragraph [14]: “14. His Honour seems to have been diverted into exploring the genus test. In my opinion, counsel for the appellant is correct to suggest that the test is irrelevant to a situation where the existing use is claimed to flow from an existing development consent. The genus test would be relevant for characterisation, if there was no consent, but there was in this case. It was the rights of use under the 1974 consent which were protected by s 106. At the date of the prohibition coming into force, the first respondent had no rights to use the land for the purposes of steel fabrication.” Where an existing use has the benefit of a development consent, the use is characterised by what uses are approved by the development consent and not by application of Shire of Perth v O’Keefe or the genus/species test in Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 (Royal Agricultural Society) at p 309. A useful précis of the role of characterisation of purpose of an existing use is provided by Biscoe J of the Land and Environment Court of NSW (NSWLEC) in Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23 (Warlam) at paragraphs [17]–[18] as follows: “17 Characterisation of the purpose of an existing use and the purpose of a proposed use are governed by the principles reviewed by the Court of Appeal in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309–311 and Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57 at [56]–[69]. The leading High Court Decision is Shire of Perth v O’Keefe [1964] HCA 37; (1964) 110 CLR 529 (followed by the High Court in Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 at 145–146, Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485 and Dorrestijn v South Australian Planning Commission [1984] HCA 76 (1984) 59 ALJR 105, (1984) 54 LGRA 99). Other leading Court of Appeal decisions include North Sydney Municipal Council v

Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 535, and Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710. 18 I would summarise the existing use principles, so far as may be relevant, as follows: (a) existing use provisions in planning legislation are designed to permit continuation of a use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions. The rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose: Royal at 309; Grace at [56]; (b) accordingly, existing use provisions should be as liberally construed as the language in its context allows: Dorrestijn at 105; Grace at [67]; (c) in order to reconcile the right of the owner to use land for an existing purpose with the right of the local authority to enforce the conflicting objectives of planning legislation, the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation. Accordingly, a test has been devised which requires characterisation of the purpose of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. The test is not so general that the characterisation can embrace activities, transactions or

processes which differ in kind from the use which the activities etc, as a class have made of the land: Royal at 309–310; (d) a statement of the purpose for which land is being used is a description or characterisation of what is being done with or upon the land, not an account of the motives of the persons involved in that activity: Shire of Perth at 534. Royal at 311, Woollahra at 714; (e) land may be used for more than one purpose. If activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then the genus may properly be regarded as describing the purpose of the use. If they are not, then the only conclusion may be that the land has been used for more than one purpose: Royal at 311; Grace at [59]; (f) the task is always to categorise the purpose (or each purpose) to which premises have been put: Grace at [60]; (g) that involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation: Shire of Perth at 535; Pioneer at 507–508; (h) in determining whether a use is protected by existing use provisions, there are two distinct steps. First, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use. The land may continue to be used for that purpose. Secondly, identify whether the use of the land thereafter is generally for the same purpose: Royal at 311; (i) the design or form of a building is not determinative of its use. For example, a building might be constructed of units

which are capable of residential use. But if the units are used for professional offices, the use would not be a residential flat building: North Sydney Municipal Council v Sydney Serviced Apartments at 535; (j) categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise: Shire of Perth at 535; (k) a use can naturally evolve over time and changes in the method of operation of a particular category of use will not deny existing use rights: Grace at [60].”

¶69-030 Onus of proof The onus of proof of an existing use or other lawful use rests with the party asserting such rights. In Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177 (Fatsel), Kirby P (with whom Samuels JA and Hunt AJA agreed) held at p 182: “This second argument raised, relevantly, two sub-issues. The first was whether the onus of establishing an existing use entitlement fell upon the appellants or upon the respondents, particularly the council. Bignold AJ concluded this issue by holding that the onus was upon the appellants. Although that holding has been challenged in this court, I am of the view that Morris v Woollahra Municipal Council (1966) 116 CLR 23 at 34; 13 LGRA 117 at 122, binds this court to hold that the onus was upon the appellants.” In relation to onus of proof issues, Stein JA (with whom Mason P and Powell JA agreed) in the NSW Court of Appeal held in Penrith Waste Services Pty Ltd v Penrith City Council (1988) 10 LGERA 98 (Penrith Waste) at p 105–106 as follows: “The situation is clear. The council bears the onus of establishing that the development is prohibited. In this case the SREP1 and the relevant use of the land established the prohibition. As his

Honour noted, the council did not have to go further. However, since it sought relief on the basis of an existing consent, it retained the onus of proving the consent and the breach. His Honour correctly acknowledged that thereafter the appellant bore the onus to prove the use had not been contrary to ss 106 and 107 of the Act since the prohibition or that it was carrying out the development in accordance with a consent (s 109B). Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 337–338; 63 LGRA 361 at 363–364 [PDF] is authority for the proposition that the onus is on the user to prove that its use, for a prohibited purpose, was exempted as being the continuance of an existing lawful use. The Court of Appeal affirmed the decision of Cripps J on this issue: see Warringah Shire Council v Sedevcic (1986) 57 LGRA 335 at 342–343 where his Honour refers to Vines v Djordjevitch (1955) 91 CLR 512. The judgments of the court in Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323 and Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 do not stand … [p 106] for any different proposition. See in particular Hutley JA (at 213 D) in the former and Handley JA (at 409.3) in the latter, referring to Sedevcic. In my opinion, Talbot J’s approach to onus was correct. It was for the appellant to prove the consent and compliance with its conditions in order to prove an existing lawful use within ss 106 and 107 of the Act or the carrying out of development in accordance with the consent for the purposes of s 109B. To prove that its actual use complies with the consent, it must prove the terms of the consent. Sedevcic was such a case. In the appellant’s proceeding in the Land and Environment Court, it sought a declaration. In so doing it assumed the onus to prove the relevant consents for lot 22: see Jones (at 212).”

Penrith Waste reinforces the conclusion that the onus to prove an existing or other lawful use rests on the party who asserts it. The decision in Penrith Waste on the question of onus was approved by the NSW Court of Appeal in Auburn Council v Nehme [1993] NSWCA 383 at paragraph [4] (Nehme). Footnotes 1

CCH comment: “SREP” refers to the Sydney Regional Environment Plan.

¶69-040 Requirement to be lawful The definition of an existing use in s 106(a) and the protection of other lawful uses in s 109C(1) require the existing use or other lawful use to be “lawful”. Moreover, s 109A operates to limit the capacity of uses unlawfully commenced from becoming lawful. The meaning of “lawful” in this context was considered by McClelland CJ in Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 (KeSu) at p 203–204. This decision was discussed in relation to the issue of lapsing of development consents. McClelland CJ held that “lawful” in the context of s 106 does not mean lawful under the general law but is limited to lawful under the planning legislation. Where changes are made to the planning law to limit or restrict existing uses or other lawful uses, those legislative changes do not have retrospective effect rendering a use which was lawfully conducted under the law as it existed, now unlawful: Lujeta at p 160. As a corollary for an existing use or other lawful use to have been lawful continuously requires that use to have complied with the law on existing and other lawful uses at all relevant periods, namely pre-EPA Act, post-EPA Act and post the commencement of the 1985 Amendments. The use of the term “lawful purpose” in the definition of an existing use in s 106(a) and in the provisions on other lawful uses in s 109(1)

requires that in order for the existing use or other lawful use to be protected by s 107 and s 109, it must be “lawful”. Handley JA (with whom Meagher JA agreed) held in Steedman [No 2] at p 339–340: “Mr Downes QC for the appellants submitted that the subject land was being used ‘for a lawful purpose’ within s 109(1) at the commencement of the 1977 instrument because use for that purpose was not absolutely prohibited but was potentially lawful subject to consent being obtained. It was common ground that no relevant consent existed and that for the purposes of this argument it could be assumed that such use was actually unlawful. The appellants’ submission requires the words ‘for a lawful purpose’ to be given a special meaning which would include cases where the purpose was unlawful. On this submission only use for a prohibited purpose (where consent could not lawfully be granted) would be excluded from the operation of the section. The same argument would also apply to the definition of existing use in s 106(a). The appellants’ construction of s 109(1) involves either reading into the section before or after the words ‘… for a lawful purpose’ words such as ‘actually or potentially’ which are not there or else giving the words ‘lawful purpose’ a wide and special meaning. In my opinion there is no warrant for either construction. There is no reason to suppose that parliament intended to reward illegality in this way. Moreover as Stein J pointed out the appellants’ construction is contrary to the objects of the Act stated in s 5 and subversive of lawful and orderly planning. If s 109(1) had merely referred to a ‘use of … land for a purpose’ with no express requirement that such purpose be lawful the prima facie construction would have been that only lawful purposes were referred to: see Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614 at 620, 630; 39 LGRA 309 [p 340] at 313–314, 321 and the cases there cited. It would not matter for this purpose whether the illegality was absolute or qualified. It would be a remarkable result if an express instead of implied

requirement that the use be for a lawful purpose should result in a different construction. The appellants’ submissions, if correct, would have the result that s 109 operated to legalise all existing contraventions of planning laws which were capable of being regularised by the grant of consent and continued to operate to regularise such contraventions whenever a new environmental planning instrument came into force. There is nothing to suggest that the section was intended to create a potentially large class of deemed unconditional consents in this way. Very clear language would be required to produce such a result. The words of Owen J in Grozier v Tate (1946) 64 WN (NSW) at 3; 16 LGR 57 at 60–61 are in point. His Honour said: ‘The subsection is … designed to save rights, not to perpetuate wrongdoing … the legislature will be presumed, in the absence of some indication to the contrary, not to have intended that wrongdoers should benefit by their wrongdoing.’ In my opinion therefore the appellants’ argument based on s 109(1) fails. On the assumption that the use of the land for an extractive industry immediately before the commencement of the 1977 instrument was unlawful because no consent had been obtained, the section does not assist the appellants.” Thus, to receive the protection under s 107(1), an existing use and (under s 109(1)) an other lawful use must have at the relevant date been “lawful” in that, if development consent was required, such a development consent had been obtained. It does not just mean that at the relevant date the development was not absolutely prohibited by a planning instrument. This conclusion is reinforced by s 109A which provides that a use unlawfully commenced is not rendered lawful by the commencement of a planning instrument that permits the development without consent, or where a development consent is granted, while s 109A(2) is designed to overcome the decision in Vumbaca where under Interim Development Orders (IDOs), the definition of development in s 342T of the LG Act 1919 only included

change of use not use simpliciter.

¶69-050 Limitations on extension, expansion, alteration and intensification Sections 107(2)(c) and s 109(2)(c) of the EPA Act, in providing that the protection of existing uses and other lawful uses does not authorise any enlargement or expansion or intensification of the use, were plainly intended to reverse the decision in Norman v Gosford, Lujeta at p 106. The operation of s 109(2) (and by extension its equivalent in s 107(2)) in providing that the protection of an existing use or an other lawful use does not extend to alterations, extensions, increases in area, enlargement, expansion or intensification was briefly referred to by the NSW Court of Appeal in Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 where Meagher JA (with whom Samuels AP agreed and Clark JA generally agreed) held at p 412–413: “The issues in this case were further complicated by the coming into force of s 109(2) and s 109(3) of the Environmental Planning and Assessment Act 1979 during the course of the hearing. Those subsections were introduced by [p 413] the Environmental Planning and Assessment (Amendment) Act 1985 (NSW) and commenced to operate on 1 February 1986. [sic. Should read “3 February 1986”] … They were clearly intended to negative the effect of cases like Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; 26 LGRA 437 and Norman v Gosford Shire Council (1974) 132 CLR 83. They have been held not to have retrospective effect: Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157. They furnished the appellant Council with an argument that it was entitled to an injunction to restrain Mrs O’Donnell from further digging, simply because any further digging (even one shovelful) would amount to an intensification forbidden under s 109(2)(b).

Subsection (2), it submits, in an extractive industry case, ‘freezes’ all work as at 1 February 1986. This, in my view, is not a correct interpretation of the subsection, as it would amount to depriving s 109(1) of all force and effect.” Thus, the NSW Court of Appeal recognised the intention of s 109(2) (and thus s 107(2)) to reverse the decision of Brickworks and Norman v Gosford. However, the NSW Court of Appeal did not consider the effect of the new provisions, other than to say that they did not amount to a “freeze” of all works. Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy This question was considered further by the NSW Court of Appeal in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy (1991) 73 LGRA 366 (Vaughan-Taylor), an appeal relating to the lawfulness of limestone mining near Yessabah caves west of Kempsey. Mining operations commenced in 1938 and the NSW Court of Appeal considered the effect of s 107(2) and s 109(2) in qualifying or limiting the protection of existing and other lawful uses in relation to increases in the area proposed to be mined. Mahoney JA (with whom Priestley JA generally agreed) held at p 370– 371: “Certain things may be said about the operation of the paragraph. First, it refers to the ‘area’ of use. In my opinion, it does not prevent the company in the present case digging a mine or quarry which is deeper than existed before the relevant date. The paragraph is directed to the lateral area of the land used: it does not, in such a case as the present restrict the cubic content of what is done. … [p 371] … It was the intention of the legislature, in enacting s 109(2) in its present form, to place restrictions upon what otherwise would have been the operation of existing use rights. Under the preexisting law, in some at least of the forms which they took, existing use rights would permit of alternations [sic. Should read

“alterations”] or extensions to a building or work and the enlargement, expansion or intensification of particular uses: existing use rights would allow, for example, the digging of many more tonnes of stone than had originally been dug. The various paragraphs of s 109(2) clearly restrict what previously could be done. In my opinion par (b) distinguishes between things which, within one existing use, were ‘actually physically’ being done in pursuance of that use and things which were not ‘actually physically’ being done. In this respect, it distinguishes between the area of the use of land which was ‘actually physically’ being used for the relevant purpose and the area which, though being ‘used’ for that purpose, was not ‘actually physically’ being so used. In the present example, it distinguishes between the quarry or mine and the land merely held in reserve. It was, I think, the purpose of the paragraph to make that kind of distinction.” Further, Priestley JA held at p 373–374: “The change made by s 109(2) has a particularly radical effect on mining operations. Before Hemmings J the appellant contended it meant the s 109(1) authorisation was limited to precise parts of the area actually disturbed or otherwise physically used at the relevant date. Hemmings J thought that such an interpretation would make vast numbers of mining and quarrying operations unlawful, and the legislature could not have had such an intention. However, s 109(2) not only seems to me to have the meaning rejected by Hemmings J, but quite deliberately to be intended to have that meaning. It cannot be the case that the legislature, in restricting the ambit of s 109’s operation by the addition of subs (2), was unmindful that the provision would affect mining and extractive operations; the language of the new provision was plainly chosen with the decisions in Brickworks, Eaton and Norman in mind, and two of those cases dealt with such operations. Further, although in one sense radical, s 109(2) is perhaps not so surprising in its effect; if Stephen J’s view in Eaton is applicable to such situations, no rights were affected by the new subsection, and the land user could still seek consent for the enlarged use;

what the new provision thus [p 374] achieved was entirely consistent with growing awareness in New South Wales, reflected in the Land and Environment Assessment Act itself, as amended from time to time, and also fluctuating from time to time, of the need to control changes and possible harm to the environment. Thus the legislature achieved the result, in my opinion, in cases of use of land predating the commencement of planning controls inconsistent with such use, of restricting the enlargement of such use to situations where a control authority exercised a power to consent to such enlargement after appropriate investigation of any environmental issues.” Meagher JA held at p 375–376: “Before the 1985 amending Act came into force, the application of the concept of ‘existing use’ to land used for mining or extraction purposes was well settled by several decisions of the High Court. As far as area was concerned, the High Court held that where a parcel of land was used by its proprietor as to part for mining purposes, with the intention that gradually the whole would be so used, the whole of the land was ‘used’ for mining or extraction purposes: see Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; 25 LGRA 369 and Norman v Gosford Shire Council (1975) 132 CLR 83; 31 LGRA 368. As far as volume of production was concerned, the High Court held that even a dramatic increase in the volume of production did not convert an existing use into a non-existing use: Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; 26 LGRA 437 and Norman v Gosford Shire Council. The first important issue which these appeals raise is the extent (if any) to which the provisions of s 109(2) — which admittedly were framed so as to cut down the effect of the High Court decisions to which I have referred — have affected the application of this law to the land in question. [p 376] …

The real question is how to apply para (b) of s 109(2) to the facts; what is meant by the expression ‘any increase in the area of the use made of a … work or land from the area actually physically and lawfully used’? … When land is, and when it is not, in actual physical use for any purpose will always raise difficult factual questions for a court to evaluate. In a case like the present, for example, it will always include land actually dug, but it may well be more extensive than that. Land on which roads have been constructed, or other work done, preparatory to mining, might well be ‘actually and physically’ used for the purpose of mining, despite the fact that true mining operations have not yet begun. Likewise, land which lies fallow, on a rotational basis, is doubtless ‘actually and physically’ used for agricultural purposes. So also, vacant land surrounding a hospital might well be ‘actually and physically’ used for hospital purposes. But I cannot see how a discrete parcel of land, undisturbed by any current activity, and simply held in reserve for some future activity, can be considered presently to be ‘actually and physically’ used for that activity.” Conclusions The following conclusions may be drawn from Vaughan-Taylor: • The protection of existing and other lawful uses in s 107 and s 109 does not extend beyond land actually and physically being used at the relevant date and hence, does not extend to land held in reserve for future expansion. To this extent, s 107(2) and s 109(2) plainly reversed the decision in Brickworks and Eaton v Warringah and also in relation to intensification in Norman v Gosford. • The limitations on existing and other lawful uses in s 107(2) and s 109(2) are directed at lateral expansion of development and do not prevent a mine or quarry from being dug deeper. • In the case of a mine or quarry, land may be actually and

physically used if on such land were constructed roads or other work done preparatory for mining despite no excavation being undertaken, and such areas would come within the protection of s 107 and s 109 but not land held in reserve for some future activity (per Meagher JA). • The protection afforded to an existing use under s 107(1) and to an other lawful use under s 109(1) does not extend to any enlargement or expansion or intensification of the use as provided in s 107(2)(c) and s 109(2)(c). King v Lewis In King v Lewis (1995) 88 LGERA 183 (King v Lewis), the NSW Court of Appeal heard an appeal in relation to a quarry near Grafton. The quarry did not have the benefit of a development consent but rather sought to rely on the protection in s 109(1) for its continued operation. The principal issue related to whether the use of the quarry had been intensified. The primary judge held that the production in January 1986 was 4,000 m3 per annum, while in 1990 it was 20,000 m3 per annum. In this instance, the majority of the NSW Court of Appeal (Priestley JA and Handley JA with Kirby ACJ in dissent) held that at the relevant date the land site of the quarry was being used to remove material which had been previously quarried but stockpiled, and the withdrawal of stockpiled material did not constitute an extractive industry as there was no winning of material from the quarry. Hence, there was no other lawful use to be protected under s 109(1). However, the NSW Court of Appeal considered whether the prohibition on intensification inserted in s 109 by the 1985 Amendments applied only from the date of commencement of those amendments or whether it applied retrospectively. Kirby ACJ (with whom Priestley JA and Handley JA agreed) held at p 196–197: “Cripps J held that s 109(2) only prohibited such intensification of the use as had occurred since the date the amendments came into force. He rejected the proposition that the amendments had a retrospective operation. In reaching this conclusion, his Honour examined two cases, Lane Cove Municipal Council v Lujeta Pty

Ltd and Baulkham Hills Shire Council v O’Donnell. In Lujeta, Glass JA (with whom Hope JA and Mahoney JA agreed) said (at 160): ‘It is plain that no argument by the Council can take ground upon an intensification of use prior to 1984 (concerning which some evidence existed) unless the 1986 amendment operated retrospectively. Mr Tobias submitted that this was the position. I cannot, however, agree. The decision of the High Court in Norman v Gosford Council (1975) 132 CLR 83; 31 LGRA 368 established that the protection accorded to an existing use was not lost by its intensification. The amendment is plainly intended to be a belated revision of the planning law in this respect. It is not possible to construe the amendment in such manner as would make a pre-1986 intensification of use destructive of existing use rights in abrogation of the High Court decision in the absence of clear words and none appear.’ Lujeta is strong authority for the proposition that the amendments should be construed to have only prospective, and not retrospective, effect. This is a general rule of statutory construction. Valuable economic rights should not be lost retrospectively without clear language. Where Parliament means legislation to have such a retrospective operation, depriving parties of rights which they previously enjoyed by the common law or by statute, it will usually say so in clear terms. It may do so where legislation is enacted to remove doubt: See for example Workers Compensation Act 1987 (NSW), s 151E (3) and (4). The appellants, however, relied upon comments made by Meagher JA in O’Donnell. Having noted that the case before him had been argued on the basis that the effect of s 109(2) was to prohibit intensification of an existing use after 1 February 1986 [sic.], Meagher JA said (at 413–414): ‘(The correctness of the assumption is not self-evident. Even granted no retrospectivity, I should have thought that what the subsection prohibits is all activity after 1 February 1986

[sic.] which is more intensive than the activity which existed as at 13 May 1977, the date when the relevant ‘instrument’, that is, the Shire of Baulkham Hills Interim Development Ordinance No 118, came into effect. However, as this point was not argued before us, it is unnecessary to express a final opinion on the point.)’ In addition, the appellants argued that the decision of this Court in Vaughan-Taylor v David Mitchell Melcann Pty Ltd (1991) 25 NSWLR 580; 73 LGRA 366 (CA) supported their proposition that any intensification after 14 November 1969 was unlawful by reason of s 109(2) of the Act. In that case (at 587; 373), Priestley JA said: ‘The effect of s 109, as it was interpreted in light of the High Court decisions, was radically changed by the addition to it, operative from 3 February 1986, of subs (2). That subsection requires that ‘use’ be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s 309 and s 109 [p 197] without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually (as opposed to potentially) physically being used, and the extent of the use of that land likewise being limited to its extent on that day.’ Mr Lewis argued that these last comments could be distinguished. He claimed that Priestley JA was merely reciting the terms of the subsection itself for the purpose of drawing attention to the distinction between actual and potential physical use which is inherent in the terms of the section. He also argued that the view stated by Meagher JA in O’Donnell should not be adopted. It represented obiter dicta and it was expressed without the benefit of argument. I am not prepared to construe s 109(2) of the Act so as to give it a retrospective operation. In my view, the subsection only prohibits intensification after the date at which the amendments came into force, that is 3 February 1986. It would be

highly impractical, as well as economically damaging, if the subsection were interpreted to make unlawful all intensification of use after the date at which the relevant planning instrument came into force. It would also involve the retrospective creation of criminal offences under s 125 of the Act. It is particularly clear in a case such as the present that the property had enjoyed ‘existing consent’ rights for a substantial period before the amendments were enacted. My conclusion is consistent with the view expressed by Glass JA in Lujeta. While that case involved s 107 of the Act rather than s 109, the reasoning is directly applicable. The two sections should be interpreted in a consistent manner. In this regard I agree with the conclusion reached by Cripps J. This interpretation of s 109 also gains some support from the decision of this Court in Steedman v Baulkham Hills Shire Council. In that case I noted (at 572; 332), admittedly in remarks not strictly necessary for the decision, that: ‘it is clear that s 109(2) of the Environmental Planning and Assessment Act 1979 would apply to an existing use in this case so as to prohibit activity contrary to its terms after 1 February 1986 [sic.], the date of its commencement.’ In the same decision, at 581, Handley JA commented that the use of the present tense in s 109 (2)(e) and (3), indicated that the subsections were not to have a retrospective operation. I would extend this analysis to the remainder of subsection (2). The foregoing approach is consistent with the general principle of construction that a statute will not be taken to have retrospective effect without clear words to justify that exceptional conclusion: see Maxwell v Murphy (1957) 96 CLR 261 at 267; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; and Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139 at 151; D Feldman, ‘The Presumption against Retrospective Legislation’ (1995) 111 LQR 32. This rule operates with special force where the effect of a retrospective construction would be, in effect, to deprive a person of established legal rights.” Thus, King v Lewis held that the prohibition on intensification (and by

extension the other restrictions in s 109(2)) of another lawful use only operated prospectively from the date of commencement of the 1985 Amendments, namely 3 February 1986 (Note: In Lujeta, Glass JA stated the date of commencement of the 1985 Amendments as 1 February 1986, when it should be 3 February 1986). However, the date for the commencement of these restrictions may be extended where an existing use was subject to a mining lease under the Mining Act 1992 (NSW) and had the benefit of s 74 of that Act (despite the repeal or amendment of those previous by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43 (NSW), they had a continuing effect under the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) cl 8K for underground mines up to a maximum of 31 July 2012 or for surface mines a maximum of 16 December 2007), or was subject to cl 35 and Sch 1(7) of the Environmental Planning and Assessment Model Provisions 1980 (NSW) or its equivalent in an applicable Environmental Planning Instrument (EPI). In which case, cl 14 of the State Environmental Planning Policy (Major Development) 2005 provided the provisions ceased to have effect on 1 August 2010 for underground mines, and in any other case, 1 August 2007. Nymboida Shire Council v Skar Industries Pty Ltd The question of intensification was further considered by Sheahan J in the NSWLEC in Nymboida Shire Council v Skar Industries Pty Ltd [1998] NSWLEC 166 (Skar). The output of the quarry fluctuated significantly over time with differences also between amounts extracted and amounts sold. In calculating the quantity included with the protection afforded by s 109(1), Sheahan J noted at paragraph [7.1]: “As EPAA s.109(2) effectively cuts back on what would, in the commercial world, be regarded as ‘valuable economic rights’, the Courts have said that such a provision should be construed liberally in cases of ambiguity, so as to favour the proponent of the right. See, e.g., Lewis, and North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited (‘Boyts Radio’) (1989) 67 LGRA 344.”

In determining the meaning of the words “immediately before” to identify what intensity of production was protected by s 109(1), Sheahan J held at paragraph [7.6]: “As the Courts have not construed ‘as at …’ to mean ‘on …’ any particular date, the ordinary meaning of ‘immediately before …’ cannot be quite so narrow and restrictive either. The authorities dealt with in this judgment persuade the Court that it is neither necessary nor reasonable to focus only on one day, one month or perhaps even one year, as the relevant period. Construing the relevant restrictions charitably (Cripps J in Lewis), and resolving their ambiguity in favour of the proponent (Boyts Radio and Kirby ACJ in Lewis), I conclude that the appropriate amount of extraction to allow post 3 February 1986 should take into account the relevant operational history of the quarry, in a naturally fluctuating market, over ‘a reasonable period prior to’ the key date. What is a ‘reasonable period prior to’ 3 February 1986 will always be a question of fact which can be determined only by considering the particular circumstances of each case. The Court would, in my view, determine the question generally on the basis that the ‘reasonable period’ is one that is a fair and accurate representation of the average intensity of the use prior to the relevant date, taking into account any clear trends of expansion or contraction. Therefore, the Court concludes that an approach similar to that adopted by Cripps J in Lewis is correct and reasonable in the circumstances. It would appear from Lewis that Cripps J chose, in terms of ‘a reasonable period’, to review the period commencing with the quarry upgrading works in 1983. Lewis leads me to determine that the relevant calculating should commence with 1 January 1984, being the first day of the year in which the respondents evinced a clear intention to expand their operation, and were proactive in taking substantial steps towards

that goal. Cripps J in Lewis appears to have used only full year figures even though he refers to day books and invoices, but, as we have precise details for early 1986, those for January 1986 should be probably be considered, if not those for 1 and 2 February 1986. It seems to me that the vicissitudes of the industry will work: • fairly for both parties if we take whole months and years, rather than days; • against the respondents if we include the relatively poor 1985 figures and exclude the high figures for 1 and 2 February 1986; and • against the Council if we include 1984 and January 1986, but exclude 1983, and the low numbers of earlier years 1978 to 1982. In all the circumstances I believe these considerations lead the Court to a result which is just and reasonable in all the circumstances by taking the figures from 1 January 1984 to 31 January 1986 and calculating an annual average over those 25 months.” Conclusions The following conclusions may be derived from Skar: In calculating the intensity of production of an existing use or other lawful use for the purpose of identifying what is protected by s 107(1) and s 109(1) for a development where production fluctuates significantly: • intensity of a development immediately before a relevant date does not mean a particular date • the construction should be that which resolves any ambiguity in favour of the proponent (as per Boyts Radio) • the relevant period is a reasonable period prior to the relevant date

• a reasonable period should be a fair and accurate representation of intensity, taking into account any clear trends of expansion or contraction, and • in the particular instance, a period of 25 months was chosen as reasonable. Archibald v Byron Shire Council In Archibald v Byron Shire Council [2003] NSWCA 292 (Archibald), the NSW Court of Appeal heard an appeal in which one of the issues related to intensification of a quarry. Sheller JA (with whom Beazley JA agreed) held at paragraphs [70]–[71]: “70 In the present case the continued use can be characterised as that of a quarry for the extraction, production and sale of road base. Section 109 permitted the continuation of that use without Council consent. Truly the section does not authorise any expansion of the area of land used from the area actually physically and lawfully used before the coming into operation of the relevant instrument or any enlargement or expansion or intensification of that use. But it still remains important to remember, as Kitto J pointed out in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535 that particular matters relating to the way in which the use is continued such as, in the present case — more efficient means of extraction or treatment to produce the same product, directs attention away from the character of the permitted use to a ‘meticulous examination of the details of processes or activities’ and goes beyond any necessary or relevant inquiry. 71 It may well be that if in this quarry different machinery had been brought in to increase output and had achieved that effect there would, within the meaning of the section, be an intensification of the use. Here there was no increased output and no suggestion that the new machinery was brought in to achieve this. All that changed was the efficiency of the method of production. The use remained the same.” Conclusions

The following conclusions may be derived from Archibald: • The appropriate yardstick to determine whether there has been an intensification of use of a quarry is the output or production of the quarry. • If different and more efficient machinery is introduced, this does not amount to intensification if there is no increase in output.

¶69-060 Abandonment The abandonment of existing use rights does not occur if the land was not being actually used at one moment in time as was held in Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65 (Banool). The issue of the intention of the holder of those rights is vital. The fact that a DA is lodged for another use does not establish an intention to abandon existing use rights, because a DA was refused for a change of use, the owner could revert to utilising the existing use rights: Woollahra Municipal Council v TAJJ Investments Pty Ltd (1992) 49 LGRA 123 (TAJJ Investments) per Huntley JA at p 125–126 and Glass JA at p 127–128. TAJJ Investments provides authority for the application of the principles in Banool to the EPA Act. Hudak v Waverley Municipal Council In determining whether an existing use has ceased due to abandonment, Hope AJA (with whom Kirby P agreed) in Hudak referred to Banool and the importance of whether the owner intended to continue an existing use in circumstances where there was an actual interception of the use. In Hudak, the owner had left a block of flats vacant and derelict for a decade so that the property would be unattractive to his former wife in the negotiation of a property settlement between them. Hope AJA held at p 137–138: “As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the

use. Where there continues to be activity designed to continue a non-conforming use as was the case in Woollahra Municipal Council v Banool and Woollahra Municipal Council v TAJJ Investments Pty Ltd, and the length of cessation of actual use is not very long, it may be easy enough to conclude that there has been no abandonment. If however years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character, such [p 138] as winning the lottery, there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment. In my opinion this view is supported by the provisions of s 107(3). It is true that this provision merely deals with a change in the onus of proof, but nonetheless it emphasises the significance of the passage of time in determining whether there has been an abandonment. Where a year has passed without actual use, the owner seeking to establish non-abandonment must establish factors sufficient to outweigh the presumption which the passage of time imposes. In the present case, the resolution of matrimonial, including property, disputes with his former wife was no doubt a matter of importance for the appellant, but the resolution of those problems may have gone on for a very long time, as indeed they did. In my opinion that attitude was inconsistent with an intention during that period to carry on the existing use. Indeed there was a positive intention not to carry on the use during the period of dispute, however long it might last.” Conclusions Thus from Hudak, the following conclusion can be derived: • In determining whether an existing use has been abandoned, attention needs to be given to the whole of the circumstances, including the subjective intention of the owner. That subjective intention may be outweighed by other factors such as the length of time during which the use ceased to operate which, if

significant, may be inconsistent with a subjective intention to continue the use.

¶69-070 Applications for approval to extend, expand, intensify, change, etc, an existing use In assessing an application made under the EPA Regulation to enlarge, expand, intensify, alter, rebuild or change an existing use, the consent authority should assess that application under the heads of consideration in s 79C. Thus, Stein J in Mobil Oil Australia v Ku-ringgai Municipal Council (1990) 70 LGRA 419 (Mobil) held at p 423: “In my opinion existing uses were not intended to be penalised because they became non-conforming. Rather, applications to rebuild or to change the use should be assessed in the ordinary fashion by the application of the s 90 [now s 79C] heads of consideration, (including s 90(1)(a)), in the light of the provisions contained in cl 53 and cl 54 of the Regulation and the policy considerations inherent in Div 2 of Pt IV of the Act.” Section 108(2) provides that the provisions of the EPA Regulation, in relation to alterations, extensions or expansions, etc, of existing uses are taken to be incorporated in all EPIs, while s 108(3) provides that an EPI cannot derogate from these incorporated provisions. The purpose of s 108(3) is to ensure that in applying the decision in Mobil, the consent authority is required to consider an application to alter, extend or expand, etc, an existing use under the heads of consideration in s 79C. The consent authority, however, in considering the terms of an applicable EPI which prohibits the development, may effectively penalise an existing use. The effect of s 108(3) was considered by Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 (Fabcot) at p 578 as follows: “Section 108(3) uses the word ‘derogate’ the ordinary meaning of which is ‘to repeal or abrogate in part; to destroy or impair the force or effect of; to lessen the extent of; to detract from; to disparage, to depreciate’ (The Shorter Oxford Dictionary). In The Macquarie Dictionary the word is defined in the sense of ‘to

detract’. The relevant provisions of the environmental planning instrument in this case, namely cl 9 and the objectives of the zone, would clearly derogate from the incorporated provisions. Accordingly, those provisions of the local environmental plan have no force or effect. However, it is only those provisions of the local environmental plan which would derogate or have the effect of derogating from the incorporated provisions which have no force or effect. Since the provisions of the environmental planning instrument on which the respondent relied in grounds (1) to (4) of its grounds of refusal derogate from the incorporated provisions, it follows that none of those grounds are relevant. They purport to rely on provisions of the local environmental plan which have ‘no force or effect’ (s 108(3) of the Act).” Thus, in considering a DA to alter, extend, expand, etc, an existing use in accordance with the EPA Regulation, the consent authority is not to take into account any provisions of an EPI which would derogate or have the effect of derogating from the ability to approve such a DA in its planning merits. Section 108 authorises the making of regulations in relation to the enlargement and expansion of an existing use. Clause 42 of the EPA Regulation requires development consent for any enlargement, expansion or intensification of an existing use, while cl 42(2)(b) requires that any enlargement, expansion or intensification “must be carried out only on the land on which the existing use was carried out immediately before the relevant date”. In Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389 (Lemworth), the NSW Court of Appeal considered a DA lodged to expand an existing use of a brothel (the subject of a development consent but subsequently made prohibited by an EPI) from the first floor to the ground floor of premises at Liverpool. The majority of the NSW Court of Appeal (Stein JA and Hodgson JA) held that the context of an existing use of a development consent applying to the first floor level, an extension to the ground floor was outside the land on which the existing use was carried out before the relevant date and hence,

beyond the power of cl 42 for the Council to grant consent for an enlargement of an existing use. The NSW Court of Appeal majority held that the question of what constitutes the “land” must be determined in accordance with the facts and circumstances of the particular existing use and the proposed expanded use. In the circumstances under examination, the whole of the land could not be regarded as a “unit” in terms used in Eaton v Warringah for the purpose of the brothel use. The distinct unit of land at the relevant date was the first floor area in respect of which consent was granted. In Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48, Pearlman CJ (at paragraph [23]) derived the following principles from Stein JA’s judgment in Lemworth: “23. Stein JA, in Lemworth v Liverpool, considered the meaning of the word ‘land’ and extensively canvassed the relevant authorities. It seems to me, with respect, that the following propositions relevant to the issue in this case may be derived from his Honour’s judgment: (a) An existing use of land refers to land which from a practical point of view should be regarded as one piece of land or a ‘unit’ (pars 37 and 41); (b) A physical use of the land is not necessary — land may be held in reserve (pars 36 and 38); (c) It is necessary to inquire into the facts and circumstances which establish the particular existing use, for that will set the parameters for the ‘land’ (par 30); (d) An analysis of the provisions of the EPA Act, including their changing nature and legal interpretation, demonstrates a narrowing rather than a broadening of existing uses and their rebuilding, expansion, enlargement and intensification (par 65); (e) It is important to keep in mind that the use of land in question is a use which is prohibited by the relevant

environmental planning instrument (par 54).”

¶69-080 Existing uses which hold a development consent Section 109B provides that where a development consent has been granted and is in force, nothing in an EPI prohibits or requires a further development consent to approve the development. This provision operates in addition to the protection afforded under s 107(1) where development with the benefit of a consent is then prohibited by an EPI and hence, becomes an existing use under s 106(b). Section 109B is necessary to enable the holder of a consent which has not been fully utilised (such as a quarry which has only extracted half of the approved extraction area) to continue to have the full advantage of that consent despite the restrictions imposed by s 107(2). Yet this provision was initially interpreted in a most limited manner, reducing the rights of the holder of a consent for development subsequently made prohibited by an EPI to the same as all other holders of existing uses, thus, subject to the limitations imposed by s 107(2) and (3). Auburn Council v Nehme In Nehme, Handley JA (with whom Meagher JA and Beazley JA agreed) held at paragraphs [26]–[32]: “26 The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect. 27 Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent

in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance. 28 A party with the benefit of an existing consent therefore requires further protection against the absolute prohibition in the new planning instrument. This has been given in the past by existing use provisions either in the new planning instrument or in the Act. Such provisions enable existing uses which were lawful, immediately before the new planning instrument came into effect, to be continued. A former consent remains important because it may establish a lawful origin for an existing use, but it will have no further effect under the new planning instrument. In particular it cannot as a mere consent prevent the enforcement of an absolute prohibition on that use in the new planning instrument. 29 All this is implicit, if not explicit, in the reasoning of Hope J in Auburn City Council v Szabo because his Honour was careful to limit the continued operation of a consent ‘so long as the Ordinance remains in force in respect of the land’, and ‘subject also to the continued operation of the Ordinance itself in respect of the land’. His Honour referred to cl 41(5) of the Ordinance which dealt with the lapsing of a consent, but did not refer to cl 32 which dealt with existing uses, and he did not refer to the effect of a consent granted under a previous planning instrument. There is also nothing in the speech of Lord Scarman in Pioneer Aggregates which deals with the continuing effect of a consent under a planning instrument after its repeal. 30 The continued lawful use of the subject land as squash courts between 1970 and 1980 in the face of the prohibition in the Auburn Ordinance depended on the existing use provision of that Ordinance, and not on the continued operation of the inferred consent. In September 1980 the existing use provisions in the environmental planning instruments then in force, including the Auburn Ordinance, were repealed by the Minister by order in the Gazette pursuant to the power in Sch 3 cl 2(2) of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW). See Steedman v Baulkham Hills Shire Council (No 2)

(1993) 31 NSWLR 562 at 578–579; 80 LGERA 323 at 338–339. Until that repeal the continued uses authorised by those clauses were lawful, and after that repeal they continued to be protected by s 107 in the original Act. Despite the unhappy drafting of the 1985 amendments to s 106, it seems that existing uses continued to be protected after that date because they were then lawful, even though s 106(a), read with s 107, in terms only protected those uses against an absolute prohibition subsequently introduced into an environmental planning instrument. 31 In my judgment therefore the inferred consent ceased to have continuing effect as a consent on the commencement of the Auburn Ordinance in 1970. Thereafter until 1992, when s 109B was added to the Act, the continued lawful use of the squash courts depended, not on that consent, but on the relevant continuing use provisions and the continuance of that use. However after 1980 the continuing use provisions of the Act did not protect a use which had been abandoned after its commencement. 32 It is now possible to determine the effect of s 109B in this case. The section only applies to a consent which is ‘in force’, and in my judgment it has no application to the inferred consent which ceased to be ‘in force’ as a consent on the commencement of the Auburn Ordinance in 1970. It will also be apparent that s 109B has introduced into the Act the principles stated by Hope J in Auburn City Council v Szabo. The section is directed to the effect of an environmental planning instrument, and of a consent granted under that instrument. It is not directed to the continuing effect of a consent granted under a former environmental planning instrument following its repeal. There may be difficulties in the application of the section to amendments to environmental planning instruments which introduce absolute prohibitions, but these can be left until they arise for decision.” In Nehme, there was no direct evidence of a development consent but the Court inferred a consent had been granted. The primary judge held that the use of the land for squash courts had been abandoned, but that s 109B preserved the inferred consent and made the use

lawful. The NSW Court of Appeal held that the inferred consent ceased to have a continuing effect once the planning instrument under which it was granted was repealed. Thereafter, the development must rely on the existing use provisions. Lederer v Sydney City Council In Lederer v Sydney City Council [2001] NSWLEC 272 (Lederer), Lloyd J in the NSWLEC sought to limit the application of Nehme to consents granted before the commencement of the EPA Act on the grounds that a consent under the EPA Act is granted under the Act itself and not an EPI. Lloyd J held at paragraphs [121]–[124] referring to the decision in Nehme: “121. Although the statement that ‘the effect of a consent will not extend beyond the life of the planning instrument under which it was granted’ was made in general terms, Handley JA was concerned with a consent granted under an earlier ordinance, not a consent granted after the making of the EPA Act. Different considerations apply in respect of a consent granted within the framework of the present regime. 122. Firstly, a consent granted under the EPA Act is not granted pursuant to an environmental planning instrument, but pursuant to the Act itself. Section 80(1) of the Act provides the source of power for a consent authority to grant consent. It is not the function of the environmental planning instrument to provide the power to grant consent. The role of the environmental planning instrument (which may be an instrument made pursuant to Pt 3 or deemed environmental planning instrument such as Interim Development Order No. 21 — City of Sydney) is, firstly, under ss. 76 to 76B to provide whether certain development, during the currency of the instrument, may be carried out without consent, only with consent, or neither with nor without consent; and secondly under s 79C to provide matters which the Council is to take into consideration when deciding whether or not to grant consent. That being the case, there is no reason why a consent granted under the Act should not be regarded as being ‘in force’, simply because the repeal of an environmental planning

instrument has changed the considerations which will govern the grant of future consents and, possibly, also the consequences which will flow from having or not having an extant consent. If the latter instrument absolutely prohibited use, it is true that the consent would provide no protection against s 76B which provides that if an environmental planning instrument stipulates that development is prohibited in an area, ‘a person must not carry out development on the land’, but this only touches on the lawfulness of the use, not the validity of the consent. 123. Moreover, the EP&A Act specifically provides at sub-s 34(4) that the repeal of an environmental planning instrument does not affect any right acquired under the previous instrument. I would regard development consents as being foremost among the rights or privileges which may be granted under an environmental planning instrument. That sub-s is as follows: 34(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect — (i) the previous operation of the instrument or any thing duly suffered, done, or commenced under the instrument; (ii) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument; or … 124. I therefore find that the 1983 consent, granted under the current Act, although not under the current environmental planning instrument, is a consent still ‘in force’ within the meaning of s 109B of the Act. Because it has remained in force all along, no change in the use in the intervening period can be found to have effected an abandonment. The applicants are therefore entitled to carry out development in accordance with that consent, although that consent does not authorise the display of the present vinyl membrane sign, as discussed above.” Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) The issue was further considered by Cowdroy J in the NSWLEC in

Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) [2003] NSWLEC 166 (Workmate [No 2]), where it was held at paragraphs [43]–[48] as follows: “43 Schedule 1 of the MAPRA Act [Miscellaneous Act (Planning) Repeal and Amendment Act, 1979 (NSW)] repealed Part XIIA of the LG Act which included s 342U(4). The 1974 consent however continued ‘in full force and effect’ by virtue of Sch 3 cl 7(1) of the MAPRA Act. The Environmental Planning Legislation Amendment Act 1995 later amended the MAPRA Act to include Sch 3 cl 7(4) which provides: — (4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979. Such amendment was deemed to have commenced on 1 September 1980 with the introduction of the EPA Act: see Environmental Planning Legislation Amendment Act 1995 s 2. 44 The New South Wales Court of Appeal in Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105 at p 112 applied Sch 3 cl 7(1) and cl 7(4) to find that the consent in issue, similarly granted pursuant to the CCPSO,2 constituted a ‘development consent for the purposes of the EP&A Act.’ (c.f. Nehme at p 22 where Handley JA held that s 106 of the EP&A Act did not apply to consents granted before the commencement of such Act because such consents were not deemed to have been made under such Act). 45 Additionally the MAPRA Act Sch 3 cl 2(1) provided that a former planning instrument, in this instance IDO 19, is to have ‘full force and effect’ under the new planning legislature and is to be a ‘deemed environmental planning instrument’ within the meaning of the EP&A Act (see EP&A Act s 4). IDO 19 continued to apply to the land until 1999 when the LEP became operative to the land following the enactment of Amendment No. 9. 46 The propositions of Handley JA in Nehme (extracted at par 32

of this judgment) raise the question whether the 1974 consent becomes irrelevant following the repeal of IDO 19 and the prohibition of industrial activity by the LEP. The general propositions pronounced by Handley JA should be considered in context of the facts of that case which Lloyd J summarised in Lederer & Ors v Sydney City Council (2001) 119 LGERA 350 at p 372. Essentially in Nehme it was inferred that a consent was granted under the CCPSO to use the land as squash courts. The Auburn Planning Scheme Ordinance came into force in 1970 and prohibited such use. Accordingly the consent was found to have been deprived of further effect but the use was protected by the existing use provisions in the Auburn Planning Scheme Ordinance and later under similar provisions of the EP&A Act. Such protection was lost when the use was abandoned around 1990. Furthermore the land did not benefit from the protection of s 109B of the EP&A Act, which was introduced in 1992, because the consent was no longer in force and the use was no longer lawful at this time. 47 Different considerations apply to consents that are granted after the introduction of the EPA Act, including those consents now incorporated within the EP&A Act by Sch 3 cl 7(4) of the MAPRA Act. Under the current regime, environmental planning instruments no longer grant consents. Instead they only specify the kind of development which requires consent or which is prohibited and those matters which the consent authority is to consider when determining an application for development consent. Lloyd J in Lederer at p 373 explained why Handley JA’s approach does not apply to consents granted under the EP&A Act as follows: — … [His Honour quoted Lederer paragraph [122] included previously.] 48 Nehme has a particular application to the planning regime prior to the EP&A Act, and to the specific facts of that case. Lederer explains why Handley JA’s finding at par 27 of His Honour’s judgment is to be confined. In these proceedings the 1974 consent is not only preserved by a transitional provision (MAPRA Act Sch 3 cl 7(1)) but is also deemed to be a consent

under the EP&A Act (MAPRA Act Sch 3 cl 7(4)). Additionally the status or character of IDO 19 prior to 1979 becomes irrelevant as a result of the operation of Sch 3 cl 2(1) of the MAPRA Act since IDO 19 is now a deemed environmental planning instrument. That is IDO 19 is no longer a ‘planning instrument’ in the Nehme sense but an environmental planning instrument under the EP&A Act. Accordingly the Court adopts the approach in Lederer and declares that the 1974 consent is not invalidated by the prohibition of industrial activity bestowed by the LEP.” Botany Bay City Council v Workmate Abrasives Pty Ltd On appeal to the NSW Court of Appeal in Workmate, the decision at first instance was reversed on the question of how the use was characterised and hence, did not consider in detail the effect of s 109B and the decision in Nehme, although at paragraph [18] it was suggested that if the use in question fell within the terms of the 1974 consent, then it would have been protected by s 109B, and hence, the reasoning of the primary judge in relation to Nehme was likely to be correct. Following Lederer and Workmate, it appears that if Nehme is to have any application at all, it should be confined to consents granted under instruments which were repealed prior to the commencement of the EPA Act. It appears the difficulties resulting from Nehme stem from the inference of a consent in that case where none could be proved. However, s 109B does not operate in a separate and distinct manner from the provisions of s 106–108. As Biscoe J in the NSWLEC held in Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692 (Currency Corporation v Wyong) at paragraph [53]: “53 The title of Division 10 of the EPA Act, which comprises ss 106 to 109B, is ‘Existing Uses’. Within the genus indicated by the title fall more than one species of existing use. One species, also called ‘existing use’, is defined in s 106. It is the subject of ss 107 and 108. Another species is a ‘use’ (not within the s 106 definition of ‘existing use’) which is the subject of ss 109 and 109A. Finally, s 109B refers to a ‘development’ in accordance with a consent that has been granted and is in force before or after the

commencement of the Act. ‘Development’ is defined in s 4 to include the use of land, the subdivision of land, the erection of a building and the carrying out of a work. A ‘development’ use referred to in s 109B(1) is not a discrete use but straddles ss 107 and 109, as is acknowledged in s 109B(2)(c). Section 109B(2)(c) provides that s 109B has effect despite anything to the contrary in s 107 or 109. Consequently, the carrying out of a use to which s 109B applies is unshackled from the constraints on development in ss 107(2) and 109(2) if the consent permits the carrying out of development without those constraints. Section 109B(2)(c) would have been unnecessary if s 109B(1) did not apply to existing uses.” Footnotes 2

CCH comment: “CCPSO” refers to the County of Cumberland Planning Scheme Ordinance, which is also known elsewhere in this book as the “County of Cumberland Planning Scheme” and “County Scheme”.

¶69-090 Retrospective analysis of planning law is required in establishing an existing or other lawful use The task of establishing an existing or other lawful use does not end with establishing that it existed at the date the first planning control came into force, either prohibiting the use or requiring consent for the use. It requires a retrospective analysis of planning law back from the present time until the time of the first applicable planning control applying to the property to establish: • whether the use came within the existing use or other lawful use category for the first and each successive planning instrument and change in planning law, or • whether it was continuous, or if not, whether it was abandoned.

¶69-100 Steedman v Baulkham Hills Shire Council See the identification of this task by Kirby P in Steedman [No 2] at p 327. In that case, an existing use was established at the time of the first planning control coming into force. The task thereafter was described by Pearlman CJ in Richard Michael Steedman and Anne Steedman v Baulkham Hills Shire Council [1994] NSWLEC 94 as follows: “The finding of the Court of Appeal was that there was a separate and independent use of the Kemp property for the purpose of an extractive industry at 12 July 1946, which was the date of the commencement of the Town and Country Planning (General Interim Development) Ordinance, the first of the planning instruments to apply to the land. What is now required, as a consequence of that finding, is to determine whether the use, found to be existing in 1946, continued thereafter and was not abandoned, so that at the time of the coming into effect of each successive planning instrument which applied to the land, the existing use provisions operate to obviate the necessity to obtain consent to continue to use the land for that purpose. There are three dates which are relevant for this exercise. The County of Cumberland Planning Scheme Ordinance commenced on 27 July 1951. The Shire of Baulkham Hills Planning Scheme Ordinance commenced on 17 April 1964, and the Shire of Baulkham Hills Interim Development Order No 118 commenced on 13 May 1977. … It must be noted that subss (2) and (3) of s 109 came into effect in February 1986. There is no issue that since that date there has been a continuous use of the land for the purpose of extractive industry. The issue relates, as I have said, to the period from 1951 through to 1977, and determination of that issue will depend, not on the presumption stated in s 109(3), but on the general law (see Handley JA in Steedman 80 LGERA 323 at 340).

If it is shown that the use found to be existing in 1946 has continued thereafter, then the applicants will be entitled to the declaration that they seek. If, however, the evidence establishes that the use was not continuous during the relevant periods, then the onus is upon the applicants to establish that, although not continuous, the use has not been abandoned (Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138). The determination of whether a use has been abandoned depends on all the facts and circumstances, including, amongst other things, the subjective intention of the relevant person (per Hope AJA in Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 at 716).” In Steedman [No 2], that task involved characterising the use against the purposes in each successive change in the applicable planning instrument to ensure that the use remained an existing or other lawful use with each change. In Steedman [No 2], the task did not involve establishing whether it also complied with the successive changes in planning law effected by the coming into operation of the EPA Act on 1 September 1980 and, in the case of an other lawful use, the commencement of the 1985 Amendments which inserted s 109(2), namely 3 February 1986, noting (as was found in Lujeta) that this legislative change did not apply retrospectively. There are often significant evidentiary hurdles faced by a party seeking to assert existing or other lawful uses where such a claim relies upon events many years ago and often as far back as the 1940s. Stein J alluded to such difficulties in Steedman v Baulkham Hills Shire Council (Unreported judgment of Stein J in the NSWLEC No 40183 of 1989, 25 July 1991) (Steedman) where he found as follows regarding various witnesses’ evidence: • “… I could place no credence on it.” • “I am firmly of the view that I can place no credibility on his evidence.”

• “Mrs. Wallace is now a woman in her early 60’s and was endeavouring to throw her memory back to when she was 14 to 16 years old. Without undue criticism of her it must be acknowledged that this is an extremely difficult task in 1989 (or 1991) and one fraught with danger — of reconstruction, exaggeration or plain defective memory. One must be even more cautious with evidence of this nature when it is uncorroborated by any extrinsic material. Here there is no supporting documentation which can be referred to and an aerial photograph taken right in the middle of the period of her evidence (1944–1949) does not only fail to support her evidence to any extent, rather to the contrary. I may add that I formed the opinion that Mrs. Wallace was being blindingly loyal to her brother Mr. Peter Kemp — for whatever reason, other than family loyalty, I do not know. Be that as it may, I believe that she was anxious to bolster and support Peter Kemp’s evidence and this lead [sic. Should read “led”] her into a reconstruction of the factual situation inevitably favourable to his story. I also formed the view when listening to Mrs. Wallace, and comparing her evidence with other evidence, that she was consciously or unconsciously exaggerating the situation.” • “To test this fairly precise description it is permissible to see to what extent it is confirmed by the expert evidence relating to the 1947 aerial photograph. I am satisfied that not only is it unsupported by that evidence, but is also inherently unlikely to be an accurate description. Indeed, if such a quarry had existed throughout 1945 and into 1946 I am certain that it would have been apparent from the January 1947 aerial photograph when examined by experts such as Messrs. Reeks, Moriarty and Brown. Indeed, even if Mr. Bodiam was guilty of exaggeration and the quarry was a significantly smaller area than he described, I am confident that it would have been apparent to the photogrammetrists and surveyor, as well as Mr. Brown.” • “I have grave difficulty in accepting Mr. Butler’s evidence at face value. It is quite unconvincing when considered in the light of the

expert evidence of the 1947 aerial photograph. It is obvious that a quarry as described by Mr. Butler could not have existed in 1946 in the area where he placed it. Again, it is inconceivable that a quarry even remotely resembling the one described by Mr. Butler would not be readily apparent on the aerial photograph taken on a few months later, magnified 8 times from diapositives and viewed through a pair of stereo plotters. On the other hand, it is conceivable that Mr. Butler’s evidence was really directed to a period after July 1946 — possibly in 1947. I do not accept Mr. Butler’s account except that, as before, I believe that the Kemps cut stone from floaters on an occasional basis at various spots on the property as their other activities permitted and in response to orders received from neighbours and people living in the locality. I believe, partly through the vagaries of memory and reconstruction, that this activity has expanded in the minds of the witnesses to assume the proportion of a quarry operation which it did not in truth possess. For some observations on the evidentiary difficulties of establishing existing use rights with the passage of years, see Bankstown City Council v Arnold (Land and Environment Court, Unreported 31 May 1983); Trimboli v Penrith City Council ((1981) 48 LGRA 323) and Nestra v Leichhardt Municipal Council ((1986) 59 LGRA 100).” • “To my summary of Mr. Fletcher’s evidence I add the comment that he is now a gentleman aged 75 years and endeavouring to recall happenings some 45 years earlier. His memory, like the other witnesses on this issue, was unaided by any documents or other extrinsic material which would help fix dates or corroborate events or activities. I have considerable doubt about the accuracy of much of Mr. Fletcher’s evidence and indeed, as I have already indicated, I reject some aspects. I also believe that Mr. Fletcher was prone to exaggeration in his description of stone cutting activities and their frequency. In some instances his evidence was too general to be reliable.” In Steedman, the recollection of witnesses was countered by aerial photography as the Cumberland County Council commissioned low-

level aerial photography of the entire County in 1947, while the Lands Department has aerial photographic coverage of the State at regular intervals (noting the difficulties with aerial photography discussed in Steedman before Stein J, and Archibald).

¶69-110 Consideration of whether a use was lawfully commenced In considering whether a use was lawfully commenced, it is not sufficient simply to enquire when was the first prescribed planning scheme or IDO made under Pt 12A of the LG Act 1919 and what were its terms. There are two precursors of prescribed schemes and IDOs which can impact upon whether a use was lawfully commenced. These are: (1) Residential District Proclamations under s 309 of the LG Act 1919, and (2) Ordinance No 105, Town and Country Planning — General Interim Development made under Pt 12A of the LG Act 1919. A Residential District Proclamation could be made by the Governor on application of a local council since the commencement of the LG Act 1919 on 1 January 1920. The effect of a Residential District Proclamation was not to require any approval, but to prohibit those industries, shops and residential flat buildings specified from the area of land in the proclamation. Generally, a PSO when made suspended the operation of a Residential District Proclamation using the power in s 342G(4) of the LG Act 1919 (see for example cl 57(2)(a) of the County of Cumberland PSO). Where a building is used for a purpose in breach of a Residential Proclamation, it becomes a use commenced unlawfully and hence, is not capable of being a lawfully commenced existing or other lawful use. Residential District Proclamations were made over many residential areas in inner and middle ring suburbs of Sydney from the 1920s onwards. Following the passage of the Local Government (Town and Country Planning) Amendment Act 1945 No 21 (NSW) which enacted Pt 12A

into the LG Act 1919 (and commenced to operation on 5 April 1945), the original Pt 12A Div 7 (s 342S–342Z) provided that interim development is not to be carried out except as may be permitted under ordinance under s 342U(1). The interim development provisions of Div 7 were proclaimed to commence on 9 November 1945 while Ordinance No 105 commenced on 12 July 1946.3 This control applied only from the date on which a council has resolved to prepare a planning scheme or the date on which the council received a direction from the Minister to prepare a scheme (see definition of “interim development” in s 342T(1)). Under these provisions, Ordinance No 105, Town and Country Planning — General Interim Development was made and it required interim development permission for development other than exempted development (cl 6). The provisions of the LG Act 1919 were replaced with the power to make IDOs by the Local Government (Town and Country Planning) Amendment Act No 7 1962 (NSW) (LGTCP Amendment Act 1962), which deleted the requirement for interim development approval under Ordinance No 105. Under the savings and transitional provisions in s 6 of the LGTCP Amendment Act 1962, the provisions of Ordinance No 105 and any interim development permission granted continued in force until an IDO or a prescribed scheme was made. Further, any interim development permission continued in full force and effect under s 6(2). Thus, it is important to establish the date of any resolution of a council or direction by a Minister to prepare a scheme, as from that date on until the making of any IDO or prescribed scheme, Ordinance No 105 continued to operate and require interim development permission. Where no interim development permission has been obtained and such interim development permission required by Ordinance No 105 obtained, the effect is to render the development unlawful. The critical importance of Ordinance No 105 for establishing existing or other lawful uses is outlined, together with an example of its application, in the judgment of McClelland CJ in Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310 (Hastings v Mineral Deposits). Footnotes

Footnotes 3

NSW Government, 9 November 1945, Government Gazette, No 120, p 2083.

¶69-120 Principles relating to existing and other lawful uses The key principles derived from the discussion on existing and other lawful uses are as follows: Principle 1: The law on existing and other lawful uses deals with how the planning transition caused by a change in planning controls is brought about, where there is no economic incentive for a landowner to implement such planning charge. The law on existing and other lawful uses is directed at the appropriate balance between the rights of landowners whose uses of their land are affected (usually adversely) by planning changes and the public expectation that the planning change envisaged by a new plan will actually be achieved. (Boyts Radio, Royal Agricultural Society) Principle 2: An existing use under the EPA Act addresses the following circumstances: • where a development was commenced prior to the introduction of planning control affecting that development and a plan has subsequently been made which provides that the development in question is now prohibited, and • where a development was commenced after the introduction of planning control which provided that the subject development was permissible with consent and a development consent was obtained for that development, but a plan has subsequently been made which provides that the development in question is now prohibited. (Section 106 of EPA Act)

Principle 3: An other lawful use under the EPA Act addresses the following circumstance: • where a development was commenced prior to the introduction of planning control affecting that development and a plan has subsequently been made which provides that the development in question is now permissible with development consent (s 109(1) of EPA Act). Principle 4: An existing use can be continued despite any prohibition in the EPA Act or an EPI (s 107(1) of EPA Act). Principle 5: An other lawful use may continue and does not require development consent, despite a provision in an EPI providing that such development is only permissible with development consent (s 109(1) of EPA Act). Principle 6: The definition of the nature of the use for which protection is afforded by s 107 and s 109 (other than where a development consent applies to an existing use) requires the process of characterisation in abstract and not by reference to the categories of uses in an EPI. That characterisation must be at a level of abstraction appropriate for planning purposes (Shire of Perth v O’Keefe, Lujeta, Hudak, Warlam). Principle 7: Where an existing use has the benefit of a development consent, the use is characterised by what uses are approved by the development consent and not by application of Shire of Perth v O’Keefe or the genus/species tests (Workmate). Principle 8: To establish an existing use, it does not matter that the use is small-scale and infrequent (Steedman [No 2]). Principle 9: The onus of proof of an existing use or other lawful use rests with the party asserting such rights (see Morris v Woollahra Municipal Council (1966) 116 CLR 23 at 34; 13 LGRA 117, Fatsel, Penrith Waste, Nehme). Principle 10: Protection is only afforded to existing uses and other lawful uses if they are lawful. “Lawful” in the context of the provisions regarding existing and other lawful uses does not mean lawful under

the general law but is limited to lawful under the planning legislation (Ke-Su). Principle 11: Where changes are made to the planning law to limit or restrict existing uses or other lawful uses, those legislative changes do not have retrospective effect rendering a use which was lawfully conducted under the law as it existed now lawful (Lujeta, King v Lewis). As a corollary for an existing use or other lawful use to have been lawful continuously requires that use to have complied with the law on existing and other lawful uses at all relevant periods, namely pre-EPA Act, post-EPA Act and post the commencement of the 1985 Amendments. Principle 12: For an existing use or other lawful use to receive protection, it must have been lawful at the relevant date in that if development consent was required, such a development consent had been obtained. It does not just mean that at the relevant date the development was not absolutely prohibited by a planning instrument. This conclusion is reinforced by s 109A which provides that a use unlawfully commenced is not rendered lawful by the commencement of a planning instrument that permits the development without consent, or where a development consent is granted (Steedman [No 2]). Principle 13: The protection provided for existing and other lawful uses is limited as follows: • The protection of existing and other lawful uses in s 107 and s 109 does not extend beyond land actually and physically being used at the relevant date and hence, does not extend to land held in reserve for future explanation. To this extent, s 107(2) and s 109(2) plainly reversed the decisions in Brickworks and Eaton v Warringah (Vaughan-Taylor) and also in relation to intensification in Norman v Gosford (Lujeta). • The limitations on existing and other lawful uses in s 107(2) and s 109(2) are directed at lateral expansion of development and do not prevent a mine or quarry from being dug deeper (VaughanTaylor).

• In the case of a mine or quarry, land may be actually and physically used if on such land were constructed roads or other work done preparatory for mining despite no excavation being undertaken and such areas would come within the protection of s 107 and s 109 but not land held in reserve for some future activity (per Meagher JA in Vaughan-Taylor). Principle 14: In calculating the intensity of production of an existing use or other lawful use for the purpose of identifying what is protected by s 107(1) and s 109(1) for a development where production fluctuates significantly: • intensity of a development, immediately before a relevant date, does not mean a particular date, and • the construction should be that which resolves any ambiguity in favour of the proponent. (Boyts Radio) The relevant period is a reasonable period prior the relevant date (Skar). The appropriate yardstick to determine whether there has been an intensification of use of a quarry is the output or production of the quarry (Archibald). If different and more efficient machinery is introduced, this does not amount to intensification if there is no increase in output (Archibald). Principle 15: An existing use is required to be continuous and not terminated or abandoned, but it may have interruptions or breaks, provided these do not result in termination or abandonment of the use. An existing use is not abandoned when there is an ongoing intention that the premises be used for the existing use, but the use has been interrupted for reasons such as intervening litigation (Banool, TAJJ Investments). Principle 16: In determining whether an existing use has been abandoned, attention needs to be given to the whole of the circumstances, including the subjective intention of the owner. That

subjective intention may be outweighed by other factors, such as the length of time during which the use ceased to operate which, if significant, may be inconsistent with a subjective intention to continue the use (Hudak). Principle 17: There is a statutory presumption capable of being rebutted that an existing or other lawful use is presumed to be abandoned if it ceases to be actually used for a continuous period of 12 months (s 107(3) and s 109(3) of EPA Act). Principle 18: In assessing an application made under the EPA Regulation to enlarge, expand, intensify, alter, rebuild or change an existing use, the consent authority should assess that application under the head of consideration in s 79C (Mobil). However, the consent authority is not to take into account any provisions of an EPI which would derogate or have the effect of derogating from the ability to approve such a DA on its manning merits (Fabcot). Principle 19: A DA seeking consent to enlarge, expand, intensify, etc, an existing use may only be made if it is carried out on the land on which the existing use was carried out. What constitutes the “land” must be determined in accordance with the facts and circumstances of the particular existing use and the proposed expanded use and it may be limited to, for example, the first floor of a building (Lemworth). Principle 20: Where a development consent has been granted and is in force, nothing in an EPI prohibits or requires a further development consent to approve the development (s 109B of EPA Act). This provision operates in addition to the protection afforded under s 107(1) where development with the benefit of a consent is then prohibited by an EPI and hence, becomes an existing use under s 106(b). Section 109B is necessary to enable the holder of a consent which has not been fully utilised (such as a quarry, which has only extracted half of the approved extraction area) to continue to have the full advantage consent despite the restrictions imposed by s 107(2). However, the scope of protection provided by s 109B to holders of a development consent is unclear:

• A development consent ceases to have a continuing effect once the planning instrument under which it was granted was replaced. Thereafter, the development must rely only on the existing use provisions (Nehme). • Alternatively, the principles in Nehme should be confined to consents granted before the EPA Act on the grounds that a consent under the EPA Act is granted under the Act itself and not an EPI (Lederer, Workmate [No 2]). Principle 21: Section 109B does not operate in a separate and distinct manner from the provisions of s 106–108 (Currency Corporation v Wyong). Principle 22: The task of establishing the existence of an existing or other lawful use requires a retrospective analysis of planning law back from the present time until the time of the first applicable planning control applying to the property to establish: • whether the use came within the existing use or other lawful use category for the first and each successive planning instrument and change in planning law, or • whether it was continuous, or if not, whether it was abandoned. (Steedman [No 2]) Principle 23: In considering whether an existing or other lawful use was lawfully commenced, consideration needs to be given (in addition to EPIs, prescribed planning schemes and IDOs) to the following: • Residential District Proclamations under s 309 of the LG Act 1919, and • Ordinance No 105 — Town and Country Planning — General Interim Development (Hastings v Mineral Deposits).

PART K INQUIRIES ¶70-010 Commissions of Inquiry Under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), as originally enacted in 1979, the Governor was authorised to appoint Commissioners of Inquiry (s 18). These Commissioners were appointed as statutory officers for a term not exceeding seven years. They were required to have special knowledge or expertise in practice, administration or law with regard to town planning, environmental planning and environmental assessment (s 18(2) and Sch 1). The Minister was empowered to direct that an inquiry be held by a Commission of Inquiry into any matter relating to: • the administration and implementation of the EPA Act • any Environmental Planning Instrument (EPI) • the environmental aspects of any proposed development application (DA) for designated development, and • the environmental aspects of any action (s 119(1)). An inquiry may involve one or more Commissioners. A Commission of Inquiry was not subject to any directions by the Minister or any other person in relation to the consents of a report or its findings or recommendation(s) (s 119(5)). The reports and findings of a Commission of Inquiry were required to be made public (s 119(6)). Inquiries by a Commission of Inquiry were required to be held in public and evidence in an inquiry was required to be taken in public and may be required to be taken on oath or affirmation (s 120(1)).

An inquiry was required to give “reasonable” notice by public advertisement (s 120(2)). There was a power to summon a witness (s 120(4)) and a discretion if it was in the public interest to have a session in private (s 120(5)). There were a number of circumstances where a Commission of Inquiry was specifically provided for in the original EPA Act in 1979. These were: • in relation to a DA for designated development at the discretion of the Minister (s 88(3)) • in relation to a DA called-in for determination by the Minister under s 101 if requested by the applicant, or any objector as a matter of right (s 101(4)–(5)), and • in relation to an activity under Pt 5 at the discretion of the Minister (s 112(d)). The Commission of Inquiry process under the original EPA Act had the following key features:1 • Commissioners of Inquiry were full-time statutory officers, who were independent and free from direction in relation to their reports, findings and recommendation(s). Their appointment for a term acted against (but did not wholly prevent) more subtle forms of control by their appointment for a fixed term of some duration. • The inquiry process had legally enforceable requirements for reasonable public notice. • The inquiry process had a legally enforceable requirement to be public, with a right for the public to attend and have access to material. • The inquiry process could test witnesses by cross-examination and could compel witness to attend and issue summons for documents. • The inquiry’s findings and recommendations were required to be

made public. In judicial review of the functioning of the former Commission of Inquiry, the following findings have been made: • A restriction on rights to cross-examine witnesses at a Commission of Inquiry and a requirement for questions to be addressed to the Commissioner did not constitute a breach of requirements for procedural fairness (natural justice): Randwick Municipal Council v Woodward (1983) 50 LGRA 55. • Provision of an effective notice period of 13–14 working days of an inquiry and six days’ notice of the assessment report of the Department of Environment and Planning, given the voluminous and technical nature of the documentation, did not constitute “reasonable notice” of an inquiry: Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14. • There was no requirement to afford interested parties an opportunity for a hearing prior to the exercise of the power to call in a DA under s 101 (as existed prior to the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW)), nor to reveal to interested parties representations by others in relation to this: Medway v Minister for Planning and Southern Highlands Quarries (1993) 80 LGERA 121. • There was no obligation on the Minister to afford objectors an opportunity to be heard, where after completion of a Commission of Inquiry, the Minister would receive and take into account further material from the applicant (Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209) or direct discussions between the Minister’s department, other departments and the applicant regarding recommendations of the Commission of Inquiry (Alison Barry v Minister Administering the Environmental Planning and Assessment Act, Glendell Coal Ltd & Ors (Unreported decision of McClelland CJ in the Land and Environment Court of NSW (NSWLEC), No 40098 of 1983, 7 December 1983)).

• Where the conclusion of a Commission of Inquiry was manifestly unreasonable on Wednesbury grounds, the report of the Commission of Inquiry failed to meet the statutory requirements of a recommendation and did not constitute a recommendation under the EPA Act: Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1. Each of these findings is likely to be equally applicable to the Planning Assessment Commission (PAC), the joint regional planning panels (JRPPs) and Independent Hearing and Assessment Panels (IHAPs) in the context of the EPA Act after the introduction of the Environmental Planning and Assessment Amendment Act 2008 (NSW) (2008 Amendments). Footnotes 1

Woodward, J, 1984, “Environmental Inquiries in New South Wales”, Environmental and Planning Law Journal, Volume 1, p 317–324; and McEwen, P, 1994/95, “Commissions of Inquiry”, Environmental Law News, No 35, Summer, p 4–9.

¶70-020 Planning Assessment Commission The provisions relating to Commissions of Inquiry were repealed by the 2008 Amendments which established the current system with a PAC and JRPP. The rationale for these changes was explained by the Minister for Planning, Mr Frank Sartor MP, in the Agreement in Principle Speech for the Bill on 15 May 2008 as follows:2 “The bill establishes two new decision-making bodies: the Planning Assessment Commission and the Joint Regional Planning Panels. These bodies are designed to strengthen confidence in decision making and increase accountability. The Planning Assessment Commission will have a chairperson and up to eight other part-time commissioners, and the members must

have expertise in planning or related fields. The bill also enables casual appointments to assist in assessment or advice in a field of importance for a particular project or planning matter. Appropriate provisions have been included regarding probity and accountability measures for commissioners. This includes members being subject to the Ombudsman Act 1974 and the Independent Commission Against Corruption Act 1988. The bill will enable the Minister to delegate decision-making powers to the Commission for part 3A projects, which currently is not possible. However, this will not include critical infrastructure projects, given that such projects often deliver essential publicly funded infrastructure. I expect about 80 per cent of part 3A projects will be delegated to the commission. Whilst the commission will have determination powers, the actual assessment of projects will continue to be done by the Department of Planning, which will make recommendations to the commission. The Minister may also request that the commission provide advice on other development or planning matters where appropriate, and they may hold a hearing or undertake other investigations as part of their consideration of a proposal. The commission will also be responsible for determining regional development where no regional panel has been established. I refer now to the provisions dealing with Joint Regional Planning Panels. The Regional Panel concept is modelled on the successful Central Sydney Planning Committee and aims to provide greater transparency and objectivity in the determination of developments of regional significance. Regional panels will ensure that projects of regional significance are determined by independent experts, particularly developments where the council has an interest in the proposal. Councils will continue to be responsible for undertaking the assessment of development applications as they currently do, but the panels can provide greater consistency in the determination of these regionally significant developments across the region.

In addition, the establishment of the regional panels with both State members and local nominees will address a key concern expressed by the Independent Commission Against Corruption in relation to corruption risks associated with local council decision making. Regional panels are not subject to direction by the Minister for Planning or a council in the exercise of their functions. However, the panels will have to comply with procedural requirements set out in the Act, the Regulations and any relevant guidelines. Regional panels will have five members: three Stateappointed members and two members appointed by the relevant council. State members must have relevant expertise and experience as set out in the bill and one of the two council nominees must also have expertise in these areas. The local council nominees will rotate depending on the location of the proposed development. As an example, if a Central Coast Regional Panel were established a development application on a site in Wyong would be processed by Wyong Council staff and determined by the panel comprising the three State nominees and two Wyong nominees. If it were in Gosford, it would be processed by Gosford Council staff and determined by a panel comprising the same three State nominees and two Gosford nominees. This will lead to improved transparency and increased consistency by taking local politics out of the decision-making process. The bill includes appropriate accountability provisions concerning the operation of panels, including provisions dealing with meeting procedure, quorum and voting requirements and appointment of alternatives; requirements for the disclosure of pecuniary interests; and panel members being subject to the Independent Commission Against Corruption Act 1988 and the Ombudsman Act 1974. Further details on regional panels are set out in this policy statement, which I will place on the table for the information of members. A concern raised during the consultation was that the bill does not provide specific details on the types of development that will be dealt with by regional panels. The types of development will be

spelled out in a State environmental planning policy rather than the Act. It is proposed that the following classes of development will be included in the State environmental planning policy: designated development; Crown development and private infrastructure greater than $5 million — for example, hospitals, educational facilities, and waste facilities; commercial or retail development over $20 million; residential and mixed use development over $50 million; development where the council is the proponent or has a significant financial interest in the proposal; and certain subdivisions and other development in the coastal zone that are currently dealt with under part 3A of the Act, which will transfer some decisions back to regional areas. The panel will also be responsible for undertaking reviews of council determinations where a third party has a right to seek a review. A number of councils have successfully used independent hearing and assessment panels to provide independent advice on development matters — for example, Liverpool, Fairfield, Sutherland, Warringah and Canterbury. However, a number of independent hearing and assessment panel models have emerged, so for greater consistency we are introducing standard provisions for the establishment and operation of independent hearing and assessment panels. The introduction of statutory provisions allowing for such panels is also consistent with the recommendations of the Independent Commission Against Corruption [ICAC]. The bill provides that a council may establish a panel where it feels it is appropriate to do so and, in addition, a council must establish a panel where an environmental planning instrument requires it, which is similar to the current arrangements that apply under State Environmental Planning Policy No. 65. Appropriate accountability measures will apply to independent hearing and assessment panels and regulations will be made governing their procedures and other operational matters.” The PAC is established as a statutory body (s 23B) of no less than four members and no more than nine members. Members are required to have expertise in any of the following fields:

• planning • architecture • heritage • the environment • urban design • land economics • traffic and transport • law • engineering • tourism, or • government and public administration. The Commission, in carrying out its functions, needs three members. Members may be full-time or part-time appointed for up to three-year terms (Sch 3). In practice, unlike the former Commissions of Inquiry, all of the current Commission members are part-time. The functions of the PAC are set out in s 23D and include: • any function delegated to it under the EPA Act • advising the Minister or Director-General on planning and development matters, EPIs or the administration and implementation of the Act, and related matters • the review of any development, activity, infrastructure or project (or part thereof) to which the EPA Act applies, and • holding a public hearing into any matter which is subject to its advice and review.

In addition, the PAC is required to advise the Minister in relation to any order declaring State significant development (SSD) other than by an EPI (s 89C(2) of EPA Act and cl 124E of Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation)). Section 23F of the EPA Act provides as follows: “23F No appeals against decisions by Commission after public hearings (1) This section has effect despite any other provision of this Act or the regulations. (2) An appeal under this Act may not be made in respect of a decision of the Commission in exercising a function conferred on the Commission by or under this Act (including a function delegated to it under this Act) if the decision was made by the Commission after a public hearing.” This provision is reinforced by s 97(7) and s 98(5), which provide that the rights of merit appeal to the NSWLEC do not apply to a DA determined after a public hearing by the PAC. Section 23E provides for the making of regulations relating to procedures, providing a capacity to prevent persons being legally represented, to provide for powers to require the giving of evidence or the production of documents and to provide for the making of findings in recommendations to be public. Under this power, cl 268C–268K of the EPA Regulation have been made. Key features of these regulations are as follows: • The PAC is not bound by the rules of evidence (cl 268D(2) of EPA Regulation). • Unlike the former Commissions of Inquiry, both the PAC and JRPP are not required to conduct their meetings in public. They may do so and, if required by the Minister, must do so (cl 268H of EPA Regulation). • If the PAC holds a public hearing, it may require a person to attend

to give evidence or to produce documents (cl 268Q of EPA Regulation). • The PAC is only permitted to conduct a public hearing where requested by the Minister or if it involves an approval under the Water Management Act 2000 (NSW)(WM Act). The PAC cannot hold a public hearing in any other circumstances (cl 268R of EPA Regulation). • Where the PAC holds a public hearing, it is required to give reasonable notice (cl 268R(3) and (4) of EPA Regulation). • The PAC must provide a copy of its report and findings to the Minister and any other person the Minister directs. Where a report relates to a DA, the report of the PAC must be provided to the consent authority and any concurring authority. A final report is required to be made publicly available on the interest “within a reasonable time after it has been provided to the Minister” (cl 268V of EPA Regulation). The PAC has issued administrative procedures for decision-making on 31 August 2011.3 These procedures provide that, where there are more than 25 public submissions, it will hold a public meeting to “meet with people interested in the proposed development”. These procedures provide that a “public meeting” is not a “public hearing”,4 which when held prevents rights of merit appeal under s 23F of the EPA Act. Footnotes 2

NSW Parliament, 15 May 2008, Legislative Assembly Hansard.

3

Planning Assessment Commission, 31 August 2011, Procedures for Decision Making, endorsed by Gabrielle Kibble AO Chairperson PAC.

4

ibid, paragraph 1.4.

¶70-030 Joint regional planning panels The Minister appoints JRPPs in parts of the State (s 23G(1)). The functions of a JRPP are provided in s 23G(2) as follows: • to exercise any of a council’s function as consent authority as provided by an EPI • to exercise functions conferred by the Minister under s 118 relating to a council’s non-performance, by agreement or following recommendation by the ICAC, and • to advise the Minister on planning or development matters, or on an EPI if requested by the Minister. The EPA Regulation provides for the functioning of a JRPP as follows: • Like the PAC, a JRPP is not required to conduct its meetings in public. However, the JRPP may do so and, if required by the Minister, must do so (cl 268H of EPA Regulation). • There is no requirement for public hearings, nor is there a requirement for reports, findings and recommendations of a JRPP to be made public. The functions of a JRPP as consent authority are considered in Chapter ¶44.

¶70-040 Independent Hearing and Assessment Panels Councils are empowered to form a panel of experts to assess any aspect of a DA or any planning matter referred by the council to the panel (s 23I). These panels are called IHAPs and are purely advisory bodies and

have no powers of determination under the EPA Act. However, a council may resolve to delegate to an IHAP its powers of determination of a DA under s 377(1)(u) of the Local Government Act 1993 (NSW), but the question of whether such a power is one “expressly required to be exercised by resolution of the council” is uncertain. Like the PAC and JRPPs, there is no requirement for an IHAP to conduct its meetings in public, but if an IHAP is required by the Minister to do this, it must do so (cl 268H of EPA Regulation). Like the JRPPs, there is no requirement for a public hearing, nor is there a requirement for reports, findings and recommendations of an IHAP to be made public.

¶70-050 Principles relating to inquiries The key principles derived from the discussion on inquiries are as follows: Principle 1: The functions of the PAC include any function delegated to it under the EPA Act, to advise the Minister or Director-General on planning and development matters, EPIs, or the administration and implementation of the Act and related matters; to review any development, activity, infrastructure or project (or part thereof) to which the EPA Act applies; and to hold a public hearing into any matter, which is subject to its advice and review (s 23D of EPA Act). In addition, the PAC is required to advise the Minister in relation to any order declaring SSD other than by an EPI (s 89C(2) of EPA Act and cl 124E of EPA Regulation). Principle 2: Where the PAC holds a public hearing prior to exercising a function, there is no right of merit appeal (s 23F of EPA Act). However, according to administrative procedures issued by the PAC, where it holds a “public meeting”, this does not constitute a “public hearing”. Principle 3: The procedures for the operation of the PAC include the following:

• The PAC is not bound by the rules of evidence (cl 268D(2) of EPA Regulation). • Both the PAC and JRPP are not required to conduct their meetings in public. However, they may do so and, if required by the Minister, must do so (cl 268H of EPA Regulation). • If the PAC holds a public hearing, it may require a person to attend to give evidence or to produce documents (cl 268Q of EPA Regulation). • The PAC is only permitted to conduct a public hearing where requested by the Minister or if it involves an approval under the WM Act. The PAC cannot hold a public hearing in any other circumstances (cl 268R of EPA Regulation). • Where the PAC holds a public hearing, it is required to give reasonable notice (cl 268R(3) and (4) of EPA Regulation). • The PAC must provide a copy of its report and findings to the Minister and any other person the Minister directs. Where a report relates to a DA, the report of the PAC must be provided to the consent authority and any concurring authority. A final report is required to be made publicly available on the Internet “within a reasonable time after it has been provided to the Minister” (cl 268V of EPA Regulation). Principle 4: The functions of a JRPP are as follows: • to exercise any of a council’s function as consent authority as provided by an EPI • to exercise functions conferred by the Minister (under s 118) relating to a council’s non-performance, by agreement, or following recommendation by, the ICAC, and • to advise the Minister on planning or development matters, or on an EPI if requested by the Minister.

(Section 23G(2) of EPA Act) Principle 5: Councils are empowered to form a panel of experts to assess any aspect of a DA or any planning matter referred by the council to the panel. These panels are called IHAPs. The IHAPs are purely advisory bodies and have no powers of determination under the EPA Act (s 23I of EPA Act).

PART L ENVIRONMENTAL IMPACT ASSESSMENT ¶71-010 Background to Environmental Impact Assessment Environmental Impact Assessment (EIA) is an important tool in assessing the environmental impacts of a particular development or activity. It has been defined by Wathern as follows: “EIA can be described as a process for identifying the likely consequence for the biogeophysical environment and for man’s health and welfare for implementing particular activities and conveying his information, at a stage when it can materially affect their decision, to those responsible for sanctioning the proposal … Thus EIA is a process having the ultimate objective of providing decision makers with an indication of the likely consequences of their actions.”1 EIA first received legislative recognition in the National Environmental Policy Act 1970 (USA) (NEPA) signed into law by President Richard Nixon on 1 January 1970 (42 USC s 4321 et seq). The NEPA provided a declaration of national environmental policy, established the Council on Environmental Quality and provided an action for any mechanism in s 102(2)(c).2 The action-forcing provisions of s 102(2)(c) of NEPA, combined with a liberal approach to standing to sue requirements by the courts in the United States, had a significant effect on federal decision-making in the US, particularly in relation to procedural compliance, with the aspiration that compliance with the procedural requirements of NEPA would promote more environmentally responsible federal decisionmaking in the US.3 The NEPA had the following key features:

• it did not establish a decision-making process in itself, but in effect, latched on the pre-existing decision-making processes • a requirement for documented and informed consideration of environmental effects was seen as a pathway to improved decision-making, and • it operated at the US Federal level where there is no equivalent to the statutory land use planning system, as applies in Australia and the United Kingdom. Environmental Impact Assessment’s introduction into Australia Following the introduction of NEPA and the increasing perception that EIA had benefits as a decision-making tool, it was quickly introduced in Australia. At the Commonwealth level, the Environment Protection (Impact of Proposals) Act 1974 (Comm) (EPIP Act) was enacted with Administrative Procedures thereunder made in 1975 requiring EIA for Commonwealth Government decisions. Although the Commonwealth legislation lacked any action-forcing mechanism similar to s 102(2)(c) of the NEPA, under the Fraser Government, major environmental inquiries accompanied by EIA were conducted into mineral sands mining on Fraser Island and uranium mining in Kakadu. This gave EIA great prominence and attention. In New South Wales, non-statutory guidelines for EIA were issued in 1974 by the then State Pollution Control Commission (SPCC) established under the State Pollution Control Commission Act 1969 (NSW). The guidelines attracted a level of force with the power of the SPCC to conduct public inquiries. As with the experience under the Commonwealth legislation, the use of a mechanism to hold open wide-ranging public inquiries could force a proponent to prepare an Environmental Impact Statement (EIS) even when there was no legislative requirement, nor indeed where the inquiries were not part of any specific decision-making process, other than the SPCC’s powers to license pollution and issue directions to government agencies. Under the SPCC, major environmental inquiries were established to look into the Moomba to Sydney Gas Pipeline, land use on Kooragang Island, the Silverwater fuel pipeline and others. While they proved effective mechanisms when used sparingly

associated with a formal public enquiry, the process of EIA under the SPCC’s Administrative Guidelines highlighted the following deficiencies: • there was no interrelationship between the EIA process and the formal approval system for development application (DA) under the planning law • the process relied largely on the willing cooperation of proponents to prepare an EIS, no doubt buttressed by the bluff of the public inquiry mechanism, and • it focused on a select few major developments, which allowed many smaller developments to escape any requirement for EIA. Footnotes 1

Wathern, P, 1988, “An Introductory Guide to EIA” in P Wathern (ed), Environmental Impact Assessment. Theory and Practice, Unwin and Hynan, London, p 6.

2

42 USC s 4332.

3

Anderson, FR, 1973, NEPA in the Courts. A Legal Analysis of the National Environmental Policy Act, Resources for the Future Inc, The Johns Hopkins University Press, Baltimore.

¶71-020 Overview of Environmental Impact Assessment in the Environmental Planning and Assessment Act 1979 As part of the preparation of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the issue of making EIArelated provisions in the planning system flowed from Premier Neville Wran’s decision to recreate the position of Minister for Planning and Environment under Paul Landa MLC on 9 August 1976. The new role

absorbed the previous responsibilities of the Minister for Local Government and Planning and the Minister for Lands and Environment in relation to EIA. The EPA Act, as originally drafted, established a formal statutory requirement for EIA as part of the environmental planning system, placing EIA in a broader context of environmental planning. The principal objectives of the system of EIA included in the EPA Act were as follows: • to integrate EIA as a decision-making tool with the development control system under the planning law (This was to avoid a duplication of approval systems and, at the same time, augment the effectiveness of the development control system.) • to identify the particular types of developments (the subject of a DA) which require the preparation of an EIS (This recognised that, while EIA should be a feature of the determination of all DAs, a formal EIS would only be required for major DAs, not all DAs. Given that the development control process was largely in the hands of local government, it was considered that the consistency of decision-making could only be maintained, and certainty could only be provided to proponents, if the types of development requiring an EIS were listed and specified, rather than leaving the trigger as a discretionary test in the hands of a large number of local councils. This was the origin of the concept of designated development, as the specific class of DAs for which a full EIS was required.) • to link the requirements for a DA to having an EIS, with a requirement for public exhibition, invitation of submissions and objections, and rights of third party merit appeal against the decision of the consent authority (This was the first provision for third party merit appeals against planning decisions. This first provision was tentative as third party appeals were not available for all DAs, but only those DAs which also required an EIS, being a class of DAs likely to have higher potential environmental impacts and hence, a higher level of public interest and concern.)

• to provide a safety net to ensure that developments by or with the approval of public authorities, which had escaped or evaded planning control (through being permissible without consent) were also subject to EIA (This was established in Pt 5 of the EPA Act. This was particularly important given the extent to which developments by public authorities had secured exemptions from planning control and the extent to which major environmental controversies at the time related to developments (eg forestry), which were not subject to planning control.) • rather than seeking to identify which of these developments, which had evaded planning control, were to be subject to EIA in a manner similar to designated development, it sought to apply a test of significantly affecting the environment for the need for an EIS to such developments. Following NEPA, such decisions about whether an EIS is or is not required were to be subject to review by the courts. • to ensure that the administrative law requirements for decisionmaking in a public authority (to only take into consideration relevant matters) did not prevent consideration of environmental factors (This aimed to expand the factors which a public authority was entitled to take into consideration in making decisions to include effects on the environment, and indeed, require them to do so.) • for public authority decisions taken outside planning control under Pt 5 of the EPA Act, to enable the Department of Planning to intervene in the assessment process of particular developments, but recognising that otherwise the decision-making process remains within the public authority concerned (In effect, the safety net did not establish a separate approval system but latched on to pre-existing approval systems where they operated outside of the scope of development control. This objective was modified subsequent to the introduction of the EPA Act in the following successive ways: – Where the proponent was also the determining authority,

such proposals were to be determined by the Minister for Planning. – With the introduction of Pt 3A on Major Infrastructure and Other Projects, many of the major matters subject to Pt 5 were converted into projects requiring approval under Pt 3A. – With the repeal of Pt 3A and the introduction in 2011 of Pt 5.1 on State significant infrastructure (SSI), a separate approval system was provided for such projects largely similar to Pt 3A.) • to accept that the proponent had the responsibility to prepare an EIS, subject to meeting requirements in both the EPA Act and Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), and any requirements of the Department of Planning (The preparation of the EIS by the proponent followed the NEPA model, despite potential drawbacks relating to bias.), and • post-hoc justifications (Only by the proponent preparing the EIS is the objective of seeking to integrate environmental factors into the decision-making process of business capable of being advanced.). Thus, the EPA Act initially established two pathways for EIA: (1) Under Pt 4, where an EIS was required for designated development and environmental assessment of all DAs was required by the heads of consideration (s 90 and after the Environmental Planning and Assessment Amendment Act 1997 No 152 (NSW), s 79C). (2) Under Pt 5, where an EIS was required for activities likely to significantly affect the environment, where these were not subject to planning control under Pt 4. Further, environmental assessment was required generally for all proposed activities, even where an EIS was not required.

Since the commencement of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW), EIA is now required for DAs for State significant development (SSD) under Div 4.1 of Pt 4 (and an EIS is required for all DAs for SSD whether designated or not). A third pathway was also added for SSI under Pt 5.1 with EIA included therein.

¶71-030 Environmental Impact Assessment under Pt 4 of the Environmental Planning and Assessment Act 1979 In the chapters covering DAs and SSD (see Chapter ¶67), the role of EIA was discussed in relation to particular types of DAs (eg see Chapter ¶38 on designated development). The following overview is provided to bring together the provisions of Pt 4 regarding EIA. Part 4 of the EPA Act relates to development assessment and deals with how developments which are permissible with consent under an Environmental Planning Instrument (EPI) obtain that consent through the lodging of a DA and, if successful, the granting of a development consent. The key provisions relating to EIA in Pt 4 are as follows: • Development may be declared “designated development” by an EPI (s 29) or by regulations (s 158). In practice, most designated development is declared as such by Sch 3 of the EPA Regulation. However, some development is declared designated development by State Environmental Planning Policies (SEPPs) such as SEPP No 14 — Coastal Wetlands. • A DA for designated development must be accompanied by an EIS in the form prescribed by the regulations (s 78A(8)(a)). • A DA for SSD must be accompanied by an EIS in the form prescribed by the regulations (s 78(8A)). • The requirements for an EIS are set out in Sch 2 of the EPA Regulation. These requirements are common for EISs prepared under Pt 4 (including DAs for SSD) and Pt 5. Schedule 2 of the EPA Regulation requires the person responsible for the preparation of an EIS to apply to the Director-General of the

Department of Planning for the environmental assessment requirements for the EIS. The person responsible must ensure the EIS complies with those requirements (cl 3 of Sch 2 of EPA Regulation). The form and contents of an EIS are discussed later in this chapter. • DAs for designated development must be notified and advertised publicly for a minimum period of 30 days, during which time any person may make written submissions to the consent authority. Where a submission is an objection, it must set out the grounds of objection (s 79). • Minor amendments or substitutions may not require readvertisement at the discretion of the consent authority (s 79(6)). • DAs for SSD must be advertised for a minimum period of 30 days and public submissions are invited (s 89F). • The Minister has the power to direct a review of any DA including a DA for designated development by the Planning Assessment Commission (PAC) (s 80(6)–(17)). However, where a PAC review has been directed and a public hearing by the PAC has held in relation to a DA for designated development, the applicant does not have a right of merit appeal to the Land and Environment Court of NSW (NSWLEC) (s 97(7)), nor does an objector (s 98(8)). (Curiously, s 97(7) does not preclude an applicant’s right of merit appeal if a PAC public hearing is held if the DA is not designated.) Previously, where a public hearing was held, a DA would be determined by the Minister. This is no longer the case, although s 80(6)(b) requires the consent authority to consider the findings and recommendations of the PAC and any comments of the Minister. • For DAs other than designated development, there is a requirement for a Statement of Environmental Effects (although note the effects of the decision in Cranky Rock Road discussed in Chapter ¶34).

• For all DAs, the consent authority is required to consider under s 79C(1)(b) “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”. • Other than where the PAC has held a public hearing, any objector to a DA for designated development has a right of merit appeal to the NSWLEC within 28 days of the date of the notice of determination (s 98).

¶71-040 Environmental Impact Assessment under Pt 5 of the Environmental Planning and Assessment Act 1979: Application of Pt 5 Part 5 of the EPA Act provides a safety net to ensure that developments, which are not subject to development assessment under Pt 4, receive the scrutiny afforded by EIA. Part 5 applies to an “activity” as defined in s 110. The definition of “activity” in s 110 has both inclusionary and exclusionary elements. The elements comprising an “activity” are as follows: • use of land • subdivision of land • erection of a building • carrying out of a work • demolition of a building or work, or • anything subject to s 26 (ie the scope of potential contents of an EPI) and prescribed by regulations for the purposes of this definition. However, nothing has been prescribed for the purposes of the definition of activity. However, the definition of activity, having identified the above inclusionary elements, then proceeds to identify the exclusionary

elements by providing that an activity does not include: • anything that requires a development consent under Pt 4 (ie it is permissible with consent) • anything for which development consent under Pt 4 has been obtained (ie it has been permissible with consent and a consent has already been obtained, and impliedly, is still in force) • exempt development (ie development declared by an EPI to be exempt development, noting that, for development to be declared exempt development, it must have minimal environmental impact (s 76(2)) • anything that is prohibited by an EPI (ie as it is prohibited by an EPI it is not required to undertake the development assessment process of Pt 4, but it cannot lawfully be carried out) • development carried out pursuant to an order by the Minister, Director-General or a council under Pt 6, Div 2A (s 121B) in relation to non-compliance or hazards (ie so as to prevent compliance orders potentially being nullified or frustrated), or • development of a class or description that is prescribed by regulation to not be an activity. The demolition of a temporary structure has been prescribed to not be an activity (cl 227AA of EPA Regulation). However, Pt 5 is not triggered in relation to anything which falls within the definition of an “activity” under s 110. It is only triggered when an activity requires an approval of a determining authority. If something which falls within the definition of an “activity” does not require an approval of a determining authority, then Pt 5 does not apply. Definition of an approval An “approval” is defined expansively in s 110 as follows: “approval includes: (a) a consent, licence or permission or any form of

authorisation, and (b) a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.” Thus, an approval: • includes the granting of a formal consent, licence or permission • extends to any other form of authorisation, including any activity undertaken by the determining authority itself where there is an implicit component that it must have authorised itself to do the activity. • extends to the provision of “financial accommodation” to another person and hence, includes providing money to another person who may use that money for the activity in question. Definition of a determining authority A “determining authority” is defined as follows: “determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out.” Thus, a determining authority means a Minister or public authority in relation to a particular activity, either on whose behalf the activity is to be carried out, or whose approval is required for the activity to be carried out. Where there are multiple determining authorities, the Minister may, by order, nominate one of the determining authorities to be the “nominated determining authority” to avoid duplication of the procedural requirements of Pt 5, but each determining authority is not

relieved of the requirement to comply with the substantive provisions of Pt 5 (s 110A). Activities not subject to the substantive duties under Pt 5 While not excluded from the definition of an “activity”, s 110E provides that the following activities are not subject to the substantive duties under Pt 5, namely s 111 and s 112: “(a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact, (b) a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister, (c) an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part.” Original definition of activity in s 110 When originally enacted, the EPA Act contained a different definition of “activity” in s 110 as follows: “‘activity’ means — (a) the formulation of a proposal, or the making of a recommendation or decision, for the carrying out of a development, work or project by a determining authority or a development, work or project for which the approval of a determining authority is required; (b) the incurring of expenditure by or on behalf of a determining authority in respect of the carrying out of a development, work or project by the determining authority or the incurring of expenditure by or on behalf of any other person in respect of a development, work or project for which the approval of a determining authority is required, or

(c) the carrying out of a development, work or project by a determining authority or a development, work or project for which the approval of a determining authority is required, but does not include the preparation or making of an environmental planning instrument under Part III or an activity as defined in paragraph (a), (b) or (c) that requires a consent under Part IV;” This definition was modelled significantly on the definition in the then EPIP Act operating at the Commonwealth level. Definition of activity amended The definition was essentially amended to its current form by the Environmental Planning and Assessment (Amendment) Act 1985 No 228 (NSW) (1985 Amendments; see s 5 and Sch 6) following the NSW Court of Appeal decisions in F Hannan Pty Ltd v Electricity Commission of NSW [1983] 3 NSWLR 282; 51 LGRA 369 (Hannan [No 2]) and F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 (Hannan [No 3]), which identified potential confusion as to what was the relevant trigger for the operation of Pt 5 due to the following: • The trigger was a “final decision” in relation to an “activity”, thus, it focused on the final decision rather than the undertaking of the activity (the reference to “final decision” in s 112 was removed by the 1985 Amendments). • The definition of activity had three alternative elements, two of which were decisions (the formulation of a proposal or the making of a recommendation or decision, and the incurring of expenditure) while one was the carrying out of a development, work or project. The common element to the three alternatives in the definition of an “activity” was matters related to the carrying out of a development, work or project. Given that the element, which had an environmental impact, was also the carrying out of a development, work or project (while precursor decisions to acquire land or spend funds only had an

impact when they were actually carried out), the 1985 Amendments sought to clarify and simplify the definition by focusing solely on the carrying out of a development, work or project. Moreover, the inclusionary elements of the definition of an activity in s 110 were modified to mirror the elements of the definition of “development” in s 4(1). While this change limited to a certain extent the potential coverage of Pt 5, it avoided the confusion between decisions and actual actions identified by the courts in Hannan [No 2] and Hannan [No 3]. Additionally, it meant that the considerable body of law on the definition of development and its constituent components (discussed in Chapter ¶4) could be directly imported into the definition of activity in Pt 5. The exclusionary elements of the definition of “activity” in s 110, excluded from the operation of Pt 5 development which required (or already had) a development consent, or development which was prohibited (a gap noted by the Court in Hannan [No 2]), plus exempt development and compliance with orders under s 121B, thus ensured that Pt 5 truly operated as a residuary safety net with no duplication or conflict with EPIs and the development control process.

¶71-050 Section 111 duty The principal operative provisions of Pt 5 relate to two duties: (1) the duty to consider environmental impact under s 111, and (2) the duty to obtain an EIS for certain activities under s 112. The duty under s 111 applies to all activities, the only exception being the three categories of exemptions in s 110E previously referred to. The duty under s 112 only applies to a subset of activities, namely activities likely to significantly affect the environment, and does not apply to activities not likely to significantly affect the environment, nor does it apply to the three categories of exemptions in s 110E previously referred to. Where applicable both duties need to be complied with, as compliance with the duty under s 112 does not remove the obligation to comply with the duty under s 111.

Section 112 duty will be covered in more detail in ¶71-060. Section 111(1) provides as follows: “111 Duty to consider environmental impact (1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.” Features of the s 111 duty The s 111 duty has the following features: • It requires a determining authority to examine environmental impacts of an activity, indicating a level of enquiry and investigation. • Following the examination process, it requires a determining authority to take into account environmental impacts of an activity. • It requires the range of environmental impacts examined and considered to be broad and encompass all matters affecting, or likely to affect, the environment as a result of an activity. • It establishes the standard of the examination and consideration required, namely to the fullest extent possible. • It establishes that compliance with the duty is mandatory. • It operates to broaden the range of relevant considerations for a determining authority under other legislation and to that extent overrides other legislation in relation to relevant considerations of a determining authority in relation to an activity. Clause 228 of the EPA Regulation provides a checklist of factors for

consideration in complying with the duty under s 111. F Hannan Pty Ltd v Electricity Commission of NSW F Hannan Pty Ltd v Electricity Commission of NSW (1983) 51 LGRA 353 (Hannan [No 1]) considered a challenge to the acquisition of an easement for electricity transmission lines and its compliance with Pt 5. The importance of the s 111 duty was noted by Cripps J at p 365– 366 as follows: “Section 111 of the Environmental Planning and Assessment Act, 1979 imposes on a determining authority an obligation in express terms to take into account to the fullest extent possible, all matters affecting or likely to affect the environment by reason of the proposed activity. Furthermore, the section is expressed to take effect ‘notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act’. It is difficult to over-estimate the importance of s 111. The real intention of the legislature is made evident from the terms of s 111 [p 366] itself. Compliance with its requirements is, in my opinion, pivotal to a proper working of Pt V of the Act. Accordingly, I reject the submission that compliance with s 111 is directory only.” This aspect of Cripps J’s judgment was not disputed in the appeal to the NSW Court of Appeal in Hannan [No 2]. Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) (1986) 61 LGRA 401 (Guthega) considered a challenge to the grant of leases for the Blue Cow Ski resort in Kosciusko National Park and its compliance with Pt 5. Samuels JA (with whom Mahoney JA and Priestley JA agreed) held at p 414–415: “It was then submitted that alternatively to the challenge to the environmental impact assessment, with which I have dealt, the

Minister, as determining authority, failed, in considering his final decision to grant or [p 415] withhold the leases, to ‘examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity’ as enjoyed by the Environmental Planning and Assessment Act, s.111. In F. Hannan Pty Ltd v Electricity Commission of New South Wales, Cripps J (at 365–366) expressed the view that s.111 was mandatory and that compliance with its requirements was ‘pivotal to a proper working of Pt V of the Act’. I agree, with respect, that its requirements are mandatory, and it is obviously intended to draw attention to the responsibility imposed upon a determining authority to protect the environment against the harmful effects of a projected development. At the same time, it can scarcely be read literally and without some modification of its terms. For example, the phrase ‘to the fullest extent possible’ would present an insoluble problem to an administrator since it would be necessary to search the aggregated knowledge of the experts of the world in order to discharge the almost limitless burden imposed by the word ‘possible’. ‘Possible’ is of a similar kind to ‘foreseeable’, a word etched in the professional cores of common lawyers and capable of very extensive application indeed. Accordingly, in my view, some element of reasonableness must be introduced and may be achieved by reading the section as if the word ‘reasonably’ was inserted before ‘possible’. This is the conclusion to which Cripps J came and, in his judgment, he read the expression ‘to the fullest extent possible’ as incorporating ‘a concept of reasonableness and practicability. The purpose of s.111 is to impose upon determining authorities an obligation to consider to the fullest extent practicable, matters likely to affect the environment’.” Jarasius v Forestry Commission of NSW Jarasius v Forestry Commission of NSW [No 1] (1988) 71 LGRA 79 (Jarasius) considered a challenge to forestry operations in the Eden

Native Forest Management Area. Hemmings J in the NSWLEC held at p 96: “I consider that notwithstanding such amendment [ie. the 1985 amendment], s 111 retains its pivotal role in respect of Pt V: cf F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353, at 365–366. Its requirements are mandatory and are intended to draw attention to the responsibility imposed on a determining authority to protect the environment against the potential harmful effects of a projected development. However, properly understood, the duty imposed thereunder is an obligation to consider to the fullest extent reasonably practicable matters likely to affect the environment: cf Samuels JA in Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1987) 7 NSWLR 353 at 366; (1986) 61 LGRA 401 at 414–415.” Conclusions The following conclusions may be derived from the above decisions: • The importance of s 111 is difficult to overestimate (Hannan [No 1]). It has a pivotal role in Pt 5 notwithstanding the 1985 Amendments to Pt 5 (Jarasius). • The requirements of s 111 are mandatory, not directory (Hannan [No 1], Guthega, Jarasius). • The requirements of s 111 are designed to draw attention to the responsibility imposed on a determining authority to protect the environment against the harmful effects of a proposed activity (Guthega, Jarasius). • The standard of examination and consideration required by s 111 of “to the fullest extent possible” needs to have introduced into it an element of reasonableness and practicability such that it is to the “fullest extent practicable” (Guthega) or “fullest extent reasonably practicable” (Jarasius). In demonstrating compliance with the s 111 duty, it is desirable to

document the dual process of examination and consideration by way of a Review of Environmental Factors report, using the checklist in cl 228 of the EPA Regulation.

¶71-060 Section 112 duty The duty imposed by s 112 is to not carry out an activity or grant an approval to an activity if that activity is: • a prescribed activity (there being one prescribed by regulation), or • likely to significantly affect the environment, unless it has obtained an EIS and processed it in accordance with Pt 5. Section 112 provides: “112 Decision of determining authority in relation to certain activities (1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless: (a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity: (i) prepared in the prescribed form and manner by or on behalf of the proponent, and (ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner, …”

The requirement to obtain an EIS under s 112 requires a threshold decision by the determining authority as to whether an activity meets the circumstances under which an EIS is required. Those circumstances are whether the activity is likely to significantly affect the environment. This requires: • an identification of what is the activity • an identification of what is the relevant environment for that activity • a relationship between the activity and the environment of an affect of the activity on the environment • the level of importance of the relationship or affect, being one which is of the level — “significantly affect”, and • the probability of the relationship occurring at the required level of importance, being one of “likely”. The threshold decision of the determining authority as to whether an activity is likely to significantly affect the environment is framed not as a subjective test of the determining authority forming its opinion, but as an objective test. Thus, the test is a jurisdictional fact, capable of review by the courts and a capacity of the courts to substitute their own conclusion on the test if they consider that the decision of the determining authority is incorrect. Thus, the s 112 duty performs the same action forcing the role as s 102 of NEPA in the US. The jurisprudence of the s 112 duty has been ably assisted by the creative and sometimes ingenious efforts of some public authority to avoid the preparation of an EIS and to persist in the face of litigation, no doubt at a cost far exceeding that which would otherwise have been incurred in preparing an EIS in the first place. Some of these creative and ingenious stratagems involved exploring whether the conclusion of “significantly affect” would be altered by differing approaches to the definition of the activity and the environment, namely: • minimising the environment to correspond to the location of the

activity and no more so as to limit consideration of a broader environment • minimising the activity so that, in the context of the environment, it appears small, and • maximising the environment so that, in the context of the environment, the activity appears small. The formulation of a duty under s 112(1) was amended by the 1985 Amendments. Originally, it provided that: “A determining authority shall not make a final decision to undertake, or to approve of the undertaking of, an activity that is either a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment unless …”. The current formulation removes the reference to the concept of a “final decision”, which proved somewhat confusing and instead simply provides that a determining authority could not carry out or grant an approval of an activity unless it had satisfied the requirements of s 112(1). Kivi v Forestry Commission of NSW In Kivi v Forestry Commission of NSW (1982) 47 LGRA 38 (Kivi), Cripps J in the NSWLEC heard an application to restrain forestry operations in Goonimbar State Forest (north of Lismore) without an EIS under s 112. Cripps J noted that the subject area possessed high recreational and aesthetic qualities and was proposed as a national park due to its significant conservation value. The Forestry Commission contended that the activity was not likely to significantly affect the environment, and it contended that a “final decision” had been made before the commencement of the EPA Act. Cripps J held that the final decision was made after the commencement of the EPA Act. Cripps J held at p 47–48: “Was this activity an activity likely to significantly affect the environment? The application of s.112 to a given set of circumstances is not without its difficulties. It is made more difficult by the fact that ‘an activity’ and the ‘environment’ are

defined in the widest possible terms. An environmental impact statement need not be prepared unless the undertaking of the proposal is likely to have a significant effect on the environment. In one sense the test begs the question. How can a decision be made whether to require an environmental impact statement until it is known how significant the impact of the activity will be? It is not disputed in these proceedings that if the decision related to the activity of logging the Goonimbar State Forest, that activity could be described as one which would be likely to significantly affect the environment. It is submitted, however, that because the activity charged is the activity of logging compartments 80, 81 and 82, ie., 170 hectares of forest, of which 66 were rainforest, that could not significantly affect the environment. Nobody has submitted that the ‘environment’ is confined to the geographic area of the logging. But a dispute has arisen whether one can go beyond Goonimbar State Forest and whether one is obliged to take into account the existence of earlier logging in Goonimbar State Forest, and if so to what extent. In my opinion, for the purpose of determining whether this activity significantly affects the environment, I am entitled to go beyond the area in which the activity itself is being proposed and look to the whole undertaking of which the relevant activity forms a part to understand the cumulative and continuing effect of the activity on the environment. The ‘environment’ clearly enough includes the geographic location in which it is to be carried out and the area of which it is physically a part. Applying that approach to this case, the environment would embrace Goonimbar State Forest. Some indication of the matters which might be considered for the purpose of determining whether an activity is likely to significantly affect the environment can be found, in my opinion, by an examination of the Environmental Planning and Assessment Act and the regulations made thereunder. … [p 48] …

In my opinion, I am entitled to have regard to the circumstance that there is a serious proposal supported by the National Parks and Wildlife Service for the inclusion of the subject area into a national park. It is not to the point, in my opinion, that the logging will not affect that proposal in the sense that the Forestry Commission does not oppose the area ultimately being included in a national park. Inherent in the proposal is an inference, which in my opinion I am entitled to draw, that the area is regarded by the National Parks and Wildlife Service, as having environmental significance justifying its inclusion as a park to be managed by that service. Further, I am entitled to take into account the recreational and aesthetic quality of the locality and the ecological and environmental matters referred to by Mr Hitchcock and Dr Recher.4 In particular, I have paid attention to Dr Recher’s evidence concerning the scientific value of this locality. The environmental review itself referred to the ‘messy aesthetics of immediate post-logging’ and it acknowledged that full canopy recovery would not occur in much less than eighty years. In my opinion, the proposal the subject of these proceedings is an activity that is likely to significantly affect the environment and before a final decision is taken to approve the undertaking, it is necessary for an environmental impact statement to be prepared, published and otherwise dealt with in accordance with the provisions of Pt V of the Environmental Planning and Assessment Act, 1979. I am not here concerned with the issue whether this area should be logged or not. My sole concern is whether before a decision is taken to log the subject area, that decision must be preceded by an environmental impact statement. In my opinion, it should.” In Kivi, the activity was not the logging of the entire Goonimbar State Forest but only three compartments totalling 170 hectares that were identified for immediate future logging. Thus, the activity was minimised given the context of the entire state forest being subject to forestry operations. It was not suggested that the relevant environment for this activity was just the geographic confines of the logging. It was, however, disputed whether the environment could

extend beyond the Goonimbar State Forest to the complex of forests of the Nightcap Range and whether, in examining the environment, consideration could be given to earlier logging in the Goonimbar State Forest, which would have highlighted the values of those parts which remain unlogged. Conclusions The following conclusions may be derived from Kivi: • In determining what is the appropriate environment, consideration could be given to areas beyond the area in which the activity is being proposed. The reason for this is to enable an appreciation of the larger undertaking of which the particular activity forms part so as to understand the cumulative effects of the activity on the environment. • In effect, it was necessary to consider the context of the activity. The context of the activity assists in determining the effect of the subject activity plus previous actions (ie the cumulative impacts) and hence, their likely significance. • In determining the significance of the impacts of an activity, an important consideration is the significance of the values of the environment within which it is proposed. The higher the environmental values (such as scientific values and proposals for the area to be declared a national park), the lower the threshold of impacts of an activity, which would give rise to a significant impact. Prineas v Forestry Commission of NSW In Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 (Prineas), Cripps J in the NSWLEC heard an application to restrain rainforest logging operations in the Hasting River Valley west of Port Macquarie. The Forestry Commission had conceded that the proposed rainforest logging was likely to significantly affect the environment and hence, an EIS was required under s 112 and was

actually prepared. The activity, as identified in the EIS, was the proposed logging of an area of 1,401 hectares of rainforest. The forests in question were a mosaic of rainforest and hardwood eucalypt forests. While the logging of the hardwood eucalypt forest was not part of the activity identified in the EIS, it was noted that this would be subject to further logging and the roads provided for the rainforest logging would later be used for the hardwood logging. At first instance before Cripps J, the proceedings focused on the question of the validity of the EIS, an issue to be discussed later. One of the claimed bases for invalidity of the EIS was that it omitted consideration of the hardwood logging. In effect, the applicant disputed the formulation of the activity. In relation to this question, Cripps J held at p 414: “I do not wish to canvass all the evidence relating to the alleged omissions in the EIS. The EIS does not address itself to hardwood logging. In my respectful submission, there is merit in the argument advanced on behalf of the Forestry Commission, namely that in the circumstances of the instant case, cll 56 and 57 do not oblige it to consider the matter of hardwood logging. The determining authority is entitled to specify its activity. Here, the activity specified is the activity of rain forest logging. If future hardwood logging (which is contemplated but not yet decided upon) is likely to have a significant effect on the environment, i.e., on the areas of rain forest, then that effect will have to be examined. Mr O’Keefe has conceded that the EIS is limited to rain forest logging. He concedes that if it is proposed to undertake hardwood logging, a final decision will, if that activity is likely to significantly affect the environment, need to be preceded by the preparation and consideration of an environmental impact statement concerning that activity. It would seem that if hardwood logging is likely to endanger or affect the remaining stands of rain forest timber, it would be difficult to assert that that activity would not be likely to significantly affect the environment. I am prepared to assume, however, that the environmental impact statement would have been more satisfactory had it considered the impact of hardwood logging.”

On appeal to the NSW Court of Appeal in Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 (Prineas v Forestry Commission of NSW), in relation to the issue of the selection of the activity for approval, Hutley JA (with whom Samuels JA and Hutley JA agreed) held at p 164: “As the impact of developmental work may be of indefinite duration, and afford opportunities for further activity, no planner could prepare a statement which exhausts the possibilities of all development. The proponent must have the privilege of selecting what he proposed to develop. It may be an issue for consideration where the E. I. S. fails to give a full account of likely environmental impacts and it may be submitted that the proposal, as formulated, is a sham and a mere cover for a quite different type of development but, barring such a challenge, it does not seem to me that the fact that what is proposed could be seen as, possibly, part of a wider proposal is a relevant challenge to the E. I. S. If and when the range of activities of the commission extends to actually logging hardwood timber, it may be that it would have to present another E. I. S. That the logging of hardwood timbers is a natural expansion of the proposed logging of rain forest timbers is not a ground for rejecting this E. I. S. for failure to comply with reg 57. In my opinion, the principal criticism which was made of the E. I. S., namely, its failure to deal with the logging of hardwood timbers, which grow with the rain forest, is based upon a misunderstanding of the terms of the Act and regulations and is not made out.” While the argument in Prineas was framed in relation to the validity of the EIA, at issue was the selection of the activity to be considered under Pt 5. Conclusions The following conclusions may be derived from Prineas on this issue: • The proponent is entitled to select what the proponent proposes to undertake and hence, to select the activity for examination under

Pt 5. • If in selecting the activity the proponent chooses only part of the larger undertaking, it may well result that an additional EIS may be required for other parts of the larger undertaking if they too are likely to significantly affect the environment. Additionally, in Prineas, Cripps J noted that the factors likely to have an impact on the environment, and now set out in cl 228 of the EPA Regulation, are not only relevant for compliance with the s 111 duty, but they are equally relevant in identifying matters to be addressed in the preparation of an EIS. Cripps J held at p 412 (a finding not disturbed on appeal): “Factors likely to have an impact on the environment are not only to be taken into account under s.111, but are relevant for the purpose of preparing an environmental impact statement under s.112.” Jarasius v Forestry Commission of NSW Further to the discussion in ¶71-050, in Jarasius, Hemmings J in the NSWLEC heard an application for declarations and orders relating to integrated logging operations for saw logs and pulpwood near Eden on the south coast of New South Wales in the Eden Native Forest Management area, which was the subject of an agreement for the supply of woodchips. The activity in dispute related to only two areas (areas A and B), of 36,000 hectares and 14,000 hectares respectively. The Forestry Commission sought to maximise the relevant environment, submitting it was the entire Eden Native Forest Management Area, the subject of a woodchip supply agreement covering an area of 300,000 hectares from Bermagui in the north, to the Victorian border in the south, and westwards from the coast to Bombala and Nimitabel. By maximising the environment to a huge area, the Forestry Commission sought to reduce the perceived significance of the activity, concluding that an activity in a limited part of the area would not have a significant effect. In relation to what constituted the relevant

“environment”, Hemmings J held at p 92: “I am unpersuaded by the respondents that the relevant ‘environment’ can only be the whole region and as defined by an agreement of two of the respondents in 1975. I favour the submissions of the applicant in this regard. I also do not accept that the area licensed (exhibit 17a) for the second respondent’s activities in such area is conclusive of the determination of the environment or impact for the purpose of Pt V of the E P & A Act. In my opinion such agreement area merely identified a supply area for a twenty year export licence, and the location, nature and intensity of actual harvesting and roading works must be the subject of separate assessment and approval pursuant to both the Forestry Act and the E P & A Act. I accept that it is open to look at the whole undertaking of which the relevant activity forms a part (cf Kivi at 38), … Nevertheless, in my opinion, in different localities the ‘environment’ can be the individual forests. Site specific activities may be proposed therein and have a discrete and identifiable environment from that of the region. I am satisfied that, for the activities proposed and for the relevant licences and harvesting plans, area A has a different environment from that of area B, and from the balance of the agreement area. In my opinion, the relevant environment for the subject ‘approvals’ and associated works is the forest area within which the activity under consideration is located and its adjoining areas. In my opinion it also was not reasonably open to the first respondent to conclude that the relevant environment was the region or agreement area”. Conclusion The following conclusion may be derived from Jarasius: • While it is relevant to look at the whole undertaking of which the proposed activity forms part, where site specific activities are proposed and possess a discrete and identifiable environment, the relevant environment is the area where the proposed activity

is to be undertaken and its adjoining areas. In relation to the question of what constitutes “likely to significantly affect”, Hemmings J held at p 93–95: “The respondents submit that because ‘significantly’ is not defined in the E P & A Act, the meaning in the Macquarie Dictionary [p 94] should be applied, that is, ‘important’, and that word means ‘more than ordinary’. Without deciding it, I am prepared in this case to assume that that is the appropriate test. The preparation and assessment of an environmental impact statement is not compelled by s 112 unless the carrying out of the activity is likely to significantly affect the environment. Such environment I have already held is both the geographic location in which the activity is to be carried out and the area of which it is physically part. It follows therefore that activities must be assessed in areas A and B and the forests of which they form part in respect of licences and harvesting plans which have been approved or approval thereof is imminent. The function of s 112 is to determine whether there is a proposal which requires investigation and assessment in the prescribed manner. I accept that ‘likely’ with respect to significantly affect as it appears in s 112 means only a ‘real chance’ or ‘possibility’, and not ‘more probably than not’; cf Stein J in Randwick Municipal Council v Crawley (1986) 60 LGRA 277. In my opinion, by its very nature the integrated logging activity, whether on a local or regional viewpoint, has inevitably a significant effect of converting the environment from that of an old forest to that of a different and regenerated forest. The forest must be fragmented and flora is likely to be reduced in species and diversity. The full extent of the likely impact on flora in this environment is difficult to assess because there has been no comprehensive survey or research on impacts on noncommercial species. The process of removal of the old forest and regeneration has, in my opinion, immediate short and long-term

effects on the environment and notwithstanding (and sometimes as a consequence) of management procedures of the first respondent, such effects are likely to be significant. … [p 95] I have no hesitation in finding that the said activities of the first respondent and those of the other respondents in areas A and B are likely to significantly affect the environment within the meaning of s 112, and that it was not reasonably open to them to conclude otherwise. I make the same finding with respect to the subject approvals and associated works, whether such environment is limited to areas A and B separately or together, or even the agreement area as a whole. … It is well-settled in this Court that an environmental impact statement is designed to serve the ultimate decision making process, not to replace it. It is not a decision making end in itself, its purpose is to ensure that activities carried out by public authorities or with their consent, and which are likely to significantly affect the environment, are fully investigated and are exposed to public, and other departmental comment and reporting. In my opinion the position remains unchanged in the amended legislation [i.e. the 1985 Amendments].” Conclusions The following conclusions may be derived from Jarasius regarding the test of likely to significantly affect: • It can be assumed that “significantly” in s 112 means “important” or “more than ordinary”. • The meaning of “likely” in the context of the text of likely to significantly affect the environment means only a “real chance” or “possibility” and it does not mean “more probably than not”. • In considering the impacts of an activity to determine whether it

has significant effect, consideration is given to both immediate short-term and long-term impacts on the environment. Drummoyne Municipal Council v Roads and Traffic Authority of NSW In Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 (Drummoyne v RTA), Stein J in the NSWLEC heard an application for a declaration and orders in relation to the erection of “No Standing” signs on Lyons Road, Five Dock. On the question of the meaning of likely to significantly affect the environment, Stein J held at p 163: “Is the activity one that is likely to significantly affect the environment? In my opinion the question of significant effect on the environment is to be approached by first examining the affected environment and the context of the proposal. In Jarasius, Hemmings J was content to adopt my interpretation of ‘likely’ in Randwick Municipal Council v Crawley (1986) 60 LGRA 277, albeit in a different statutory context. However, it seems to me appropriate to interpret ‘likely’ in s 112 as meaning a ‘real chance’ or ‘possibility’ rather than ‘more probably than not’. Rephrasing the question then, is there a real chance that the activity will significantly affect the environment? There has been some criticism of the Court’s suggested chariness in defining the word ‘significantly’. In Jarasius, Hemmings J said that he was prepared to adopt (but without deciding) a dictionary meaning as appropriate, viz, ‘important’. Bearing in mind the infinite number of possible ‘activities’ which may be sought to be carried out in a myriad of different environments, it is difficult if not impossible to be precise about what may be considered as a significant effect. What may or may not be significant will be conditioned by the circumstances of the environment. The determining authority must examine the environment and the effect of the activity on that environment and determine whether it is likely to be significantly affected by the

activity. In my opinion it would not be helpful for the Court to attempt to closely define what may be seen as a significant effect on the environment. Indeed, it may be a process fraught with danger.” Perhaps at this juncture, His Honour should have concluded. Alas, His Honour continued at p 163: “However, for those who feel more comfortable with definitions I am prepared to suggest that a significant effect must be an important or notable effect on the environment, as compared with an effect which is something less than that, that is, non-significant or non-notable. But I must stress that the assessment of the significance must depend upon an assessment of the facts constituting the environment and the activity and its likely effect on that environment.” In many ways, the question of whether an impact is significant or not is not easily amenable to being described in words. It is rather like describing in words an elephant, but you certainly know one when you see it. Conclusions The following conclusions may be derived from Drummoyne v RTA: • The word “likely” in s 112 means a “real chance” or “possibility” rather than “more probable than not” following Jarasius. Thus, the question is then, is there a real chance that the activity will significantly affect the environment. • A significant affect on the environment must be an important or notable affect on the environment. The question of what elements comprise an activity for the purposes of the s 112 duty has a range of possibilities. There are three potential alternatives of what constitutes an “activity”. These are: • the raw activity, being the activity simpliciter proposed • the raw activity, plus any ameliorative controls or mitigating

measures proposed by the proponent, and • the raw activity, as ameliorated or mitigated by the proponent in the proposal for the activity, plus the effect of any conditions imposed or proposed to be imposed by the determining authority. Drummoyne Municipal Council v Maritime Services Board The question of what elements comprise an activity for the purposes of the s 112 duty was considered in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 (Drummoyne v MSB) in the NSWLEC by Stein J where he held at p 192: “In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation. One must have regard to the opening words of s 111: ‘For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, …’ In my view an application for permission or approval to carry out an activity is either likely to significantly affect the environment or it is not.” Conclusions The following conclusions may be derived from Drummoyne v MSB: • In determining whether an activity is likely to significantly affect the environment, the determining authority should consider the activity as proposed, including any ameliorative or mitigating measures included by the proponent on the proposal for which approval is sought. • However, the determining authority should not determine whether an activity is likely to significantly affect the environment by considering any conditions which the determining authority may

impose to mitigate environmental impacts. Transport Action Group Against Motorways Inc v Roads and Traffic Authority. The issue of modifications of an activity under Pt 5 was considered by the NSW Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; 104 LGERA 133 (Transport Action Group). This case related to the activity of the construction of the M5 Motorway from Padstow to Kyeemagh. An EIS had been prepared and exhibited under Pt 5. Prior to determining the activity, the Roads and Traffic Authority changed the activity. The activity, as originally proposed, contained three tunnel exhaust stacks and three air intakes. The changes to the activity involved a tunnel across the Cooks River rather than a bridge as originally proposed, a realignment (which moved the motorway south of a main sewer line rather than north as originally proposed), and a reduction from three exhaust stacks to a single exhaust stack, and as a consequence of these changes, a need to dispose of a greater quantity of excavated soil. Mason J (with whom Sheller JA agreed) held at paragraph [77] as follows: “Viewed singly and cumulatively, the omitted changes summarised above did not involve the radical transformation of the original activity. They represented altered means of carrying out the same proposal, being that of providing a four-lane motorway between the same two points and covering for the vast proportion of its length the identical area. Historically, the changes were linked with the original activity in that they arose out of the public responses to the exhibiting of the 1996 Supplement. The changes were matters of relative detail in the context of the activity taken as a whole. They did not radically transform it. Whether or not they could be characterised as ‘substantial’ (as the appellant submitted) is beside the point.” Conclusion The following conclusion can be derived from Transport Action Group:

• A proposed activity may be modified following the exhibition of an EIS under s 113 without a further EIS being prepared if the changes do not involve a radical transformation of the original activity. Where an EIS is prepared under Pt 5, the following requirements apply: • The EIS must be publicly notified and available for public inspection for at least 30 days, and any person may make a submission (s 113 and cl 233–235 of EPA Regulation). • At least 21 days before making a decision, the determining authority shall forward copies of submissions received to the Director-General of the Department of Planning (s 113(3)). • The Director-General may undertake an examination and report on the EIS and any submissions and provide a report to the determining authority (s 113(5) and (6)). • The Minister may request a review of any aspect of an activity by the PAC, and the PAC report and the Minister for Planning’s consideration of the report shall be provided to the determining authority (s 114). • The determining authority must prepare and make public a determination report on any activity for which an EIS has been prepared (cl 243 of EPA Regulation). Footnotes 4

CCH comment: Mr Hitchcock and Dr Recher were expert witnesses for the applicant, Kivi.

¶71-070 Contents of an Environmental Impact Statement

An EIS is required to be prepared in the prescribed form and manner (s 112(1)(a)). The prescribed form and manner are provided in Sch 2 of the EPA Regulation. The following are required: • Prior to preparing an EIS, there is a requirement to apply to the Director-General for environmental assessment requirements for an EIS and to comply with those requirements (Sch 2, cl 3). Where the proposed EIS relates to integrated development, the Director-General is required to request requirements from any approval authority. • The form and content of an EIS are the same, irrespective of whether the EIS is under Pt 4, Pt 5 and Pt 5.1 (Sch 2, cl 5 of EPA Regulation). • The form of an EIS is provided for in Sch 2, cl 6 of the EPA Regulation. • The contents of an EIS are provided for in Sch 2, cl 7 of the EPA Regulation. • Copies of an EIS are required to be available for public sale at a maximum cost of $25 (Sch 2, cl 8 of EPA Regulation). • Any document adopted or referred to by an EIS is taken to be part of the EIS (Sch 2 cl 8 of EPA Regulation). Prineas v Forestry Commission of NSW Further to the discussion in ¶71-060, in Prineas, the issue of seeking requirements from the Director-General of the Department of Planning in relation to the preparation of an EIS and the legal status of the Director-General’s environmental assessment requirements was raised. At the time of Prineas, this requirement fell under cl 58 of the Environmental Planning and Assessment Regulation 1980 (NSW). It is currently contained in cl 3 of Sch 2 of the EPA Regulation. Cripps J held at p 413: “Mr O’Keefe also submitted that although reg 58 obliges a determining authority to have regard to the requirements notified

to him in writing by the director, the determining authority is not bound to accept that requirement. The policy reasons for cl 58 are, in my opinion, clear enough and can be discerned from the legislation itself. Section 112(2) obliges the determining authority to submit its environmental impact statement to the secretary before giving notice of it under s 113(1), i.e., publication. If matters have not been considered that ought to have been considered, the director may require the environmental impact statement to address those matters. Provided the requirements sensibly relate to the proposal, the determining authority must have regard to those requirements in the sense that it must address those requirements in the environmental impact statement. I must reject the submission that its obligation is merely to have regard to the requirement and that it may decide to ignore it. I also note that cl 59 provides that an environmental impact statement shall bear a certificate that it has been prepared in accordance with, inter alia, reg 58. Whether, however, failure to comply with that requirement in a given set of circumstances would result in the environmental impact statement being held to be a nullity and that any final decision made thereupon be void, is another matter. In AttorneyGeneral; Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 N. S. W. L. R. 955, it was held that a consent was not invalid because the consenting authority failed to consult with another body in accordance with a statutory direction. Unlike the direction in Lizelle’s case, the Environmental Planning and Assessment Act, in terms, requires the preparation of an environmental impact statement conforming in form and manner with the regulations and that it be considered before a final decision is made. That requirement is directed to the authority having control over compliance: see also S. S. Construction Pty Ltd v Ventura Motors Pty Ltd [1964] V.R. 229, at p. 245; 10 L. G. R. A. 210. I need not determine this question in these proceedings because I have come to the conclusion that the ‘requirement’ (assuming it ever to have been one) was not a continuing requirement.” Prineas v Forestry Commission of NSW (1984)

When appealing, in relation to the adequacy of the EIS, in Prineas v Forestry Commission of NSW, Hutley JA (with whom Samuels JA and Priestley JA agreed) held at p 167: “It was also submitted that Cripps J. erred, in that he should have held that the Forestry Commissioner should have dealt with hardwood logging as a result of the direction which he received from the Department of Environment and Planning. … On 13 October 1980 the Department of Environment and Planning, in a letter to the Forestry Commission, said: 3. It is considered that the environmental impact statement should examine any hardwood as well as rain-forest logging in the defined area. … This, in my opinion, is not a requirement; the essence of a requirement is that there should be a direction, not a recommendation. I would read par. (3) simply as a recommendation. … However, the E. I. S. was exhibited in accordance with the approval of the director of the Department of Environment and Planning. This can only have involved, if not a withdrawal of the recommendation, at least an acceptance of the E. I. S., and the fact that this was done, in my opinion, shows that there was no requirement.” Conclusions The following conclusions may be derived from Prineas v Forestry Commission of NSW in relation to the Director-General’s environmental assessment requirements in the preparation of an EIS: • A proponent is bound to comply with the Director-General’s environmental assessment requirements for the preparation of an EIS, provided those requirements are relevant to the proposed activity. The requirements are not simply directory, nor can a proponent simply have regard to them and then ignore them.

• The environmental assessment requirements need to be expressed as a requirement. If they are expressed as a recommendation only, they are not a requirement and hence, do not need to be complied with. • An environmental assessment requirement may be withdrawn explicitly or by conduct, such as acceptance of the EIS for exhibition. • It is undecided whether a failure to comply with the environmental assessment requirements would result in the subsequent determination being a nullity. The Director-General’s requirements and the meaning of “have regard to” Prior to the changes effected by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Regulation 2011 No 570 (NSW), the status of the Director-General’s environmental assessment requirements was that the applicant was required to “have regard to” those requirements in the preparation of an EIS (prior to the 2011 changes provided in cl 73(1) of the EPA Regulation). The meaning of this was considered by Lloyd J in the NSWLEC in Botany Bay City Council v Minister for Planning [2006] NSWLEC 194 (Botany Bay v Minister) at paragraphs [29]–[33] as follows: “29 Clause 73(1) requires the applicant responsible for preparing an EIS to ‘have regard to’ the Director-General’s requirements. The language of ‘have regard to’ itself is all short of imposing an obligation of absolute or strict compliance. 30 As pointed out by Dr J E Griffiths SC, who with Mr P R Clay appears for the Minister, the phrase ‘must have regard to’ is generally construed as imposing an obligation to take the relevant matter into account and give it weight as a fundamental element in making a decision, or as identifying the focal points by reference to which a judgment or decision is to be made: Prineas at 413, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [70]–[73]; R v Hunt; Ex parte Sean Investments Pty Ltd (1979)

180 CLR 322 at 329; Evans v Marmont (1997) 42 NSWLR 70 at 79–80; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 and 388; Re Minister for Immigration and Multicultural Affairs; Ex party Miah (2001) 206 CLR 57 at [125]. 31 The context within which a phrase such as ‘have regard to’ appears also governs the nature of the obligation: CIC Insurance v Bankstown Football Club Inc (1997) 187 CLR 355. In Botany Bay City Council v Remath Investments (No. 6) Pty Ltd NSWCA, 23 December 1998, unreported, Fitzgerald AJA (Meagher and Stein JJA concurring), said: ‘The nature of an obligation to ‘have regard’ to some other matter must be determined by reference to the subject matter and context. In the context of that case the particular requirement was held to be ‘tantamount to an obligation’.’ 32 In the present case, the Director-General’s requirements are expressed in broad subjective language, such as the requirements to ‘address’ and to ‘assess’ the specified matters. Specifically, in relation to hazard and risks the requirement is that the assessment ‘should’ include the specified matters. The specified matters that ‘should’ be addressed include a Preliminary Hazard Analysis prepared in accordance with the Hazardous Industry Planning Advisory Paper No. 6; consideration of potential impacts associated with the storing, handling and transporting of dangerous goods; and demonstration that the proposal is consistent with the Port Botany Land Use Safety Study. The Hazardous Industry Planning Advisory Paper No. 6 is itself described as a document that ‘provides guidance on the general approach recommended for hazard analysis’, and section 3 of that document ‘details the suggested form and content of reports to present the results of the hazard analysis process’. All of this suggests that judgment and subjective evaluation is involved and that some degree of flexibility must be allowed to the person preparing the EIS. The nature of these requirements in the

present case must be contrasted with the very specific and finite requirement in Remath. Moreover, it is language which is entirely consistent with the requirement of substantial compliance. 33 It follows that substantial compliance — not strict compliance — with the Director-General’s requirements is sufficient, which requirements in turn include substantial compliance — not strict compliance — with the documents to which the Director-General has referred.” “Have regard to” changed to “complies with” Following the 2011 changes to the EPA Regulation, the obligation in relation to the Director-General’s environmental assessment requirements changed from “have regard to” to “complies with”. Thus, cl 3(8) of Sch 2 of the EPA Regulation now provides: “(8) The responsible person must ensure that an environmental impact statement complies with any environmental assessment requirements that have been provided in writing to the person in accordance with this clause.” However, it appears that the relevant test is likely to remain one of substantial compliance. Prineas v Forestry Commission of NSW Referring back to Prineas (see ¶71-060 and earlier in this section), the validity of the EIS was challenged on the basis that a number of issues were not considered, namely the impacts of hardwood logging, alternative land uses such as conservation reserves, some endangered species, Aboriginal sites and feasible alternatives. Cripps J held at p 417: “An obvious purpose of the environmental impact statement is to bring matters to the attention of members of the public, the Department of Environment and Planning and to the determining authority in order that the environmental consequences of a proposed activity can be properly understood. In order to secure these objects, the environmental impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible or potential environmental consequences of

the carrying out or not carrying out of that activity. It should be written in understandable language and should contain material which would alert lay persons and specialists to problems inherent in the carrying out of the activity. I do not think the obligation in s.111, that is to take into account ‘to the fullest extent possible all matters affecting or likely to affect the environment’ imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower, etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness. Clearly enough, the legislature wished to eliminate the possibility of a superficial, subject or noninformative environmental impact statement and any statement meeting that description would not comply with the provisions of the Act, with the result that any final decision would be a nullity. But, in my opinion, provided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decisionmaker and members of the public and the Department of Environment and Planning to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or enquire a finding that it does not substantially comply with the statute and the regulations. In matters of scientific assessment it must be doubtful whether an environmental impact statement, as a matter of practical reality, would ever address every aspect of the problem. There will be always some expert prepared to deny adequacy of treatment to it and to point to its shortcomings or deficiencies. An environmental impact statement is not a decision-making end in itself — it is a means to a decision-making end. Its purpose is

to assist the decision-maker. I am entitled, in my opinion, when considering whether this environmental impact statement (exhibit A) substantially complies with the Act and regulations, to have regard to the whole legislative framework before making a finding that any decision made after considering such an environmental impact statement is to be treated as a nullity. In short, do the omissions ‘render nugatory’ the evident purposes of Pt V of the Environmental Planning and Assessment Act. In my opinion, they do not.” These conclusions were not disturbed on appeal in Prineas v Forestry Commission of NSW. Conclusions The following conclusions may be derived from Prineas in relation to the contents of an EIS: • The purpose of an EIS is to bring matters to the attention of the public, the Department of Planning and the determining authority so that the environmental impacts of the activity can be properly understood. • An EIS should be sufficiently specific to direct a reasonably intelligent and informed mind to the potential environmental consequences of carrying out or not carrying out the activity. • An EIS should be written in understandable language and should contain material which would alert lay persons and specialists to problems in the carrying out of the activity. • An EIS is not required to meet a standard of absolute perfection or a standard without regard to considerations of cost, time and resources. • An EIS should not be superficial, subjective or non-informative. If it is, it will not comply with the EPA Act and any resulting decision will be void. • An EIS is valid if it is comprehensive in its treatment of the subject

matter, objective in its approach and serves to alert the public and decision-makers of the environmental impacts of an activity. • An EIS is not required to cover every topic or explore every avenue advocated by experts. • An EIS is a means to a decision-making end, not a decisionmaking end in itself. The test of validity for an EIS is one of substantial compliance. Schaffer Corporation Ltd v Hawkesbury City Council A very useful summary of the requirements for a valid EIS is contained in the judgment of Pearlman CJ in the NSWLEC in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (Schaffer) at p 30–31 (Note: This decision was overturned on appeal to the NSW Court of Appeal on different grounds in Egan v Hawkesbury City Council (1993) 79 LGERA 321.): “An environmental impact statement prepared for the purposes of s 77(3)(d) of the Act must include the matters specified in cl 34 of the Regulation. The extent to which the environmental impact statement must cover these matters has been the subject of wellknown judicial pronouncement in cases such as Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402, and on appeal at (1984) 53 LGRA 160; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; 61 LGRA 401[PDF]; Golden v Coffs Harbour City Council (1991) 72 LGRA 104 and Liverpool City Council v Roads and Traffic Authority of NSW (1991) 744 LGRA 265. Although the first two cases dealt with Pt V of the Act, and the remarks in the judgment in the third case were obiter, nonetheless from these cases, the following [p 31] propositions relating to the content of an environmental impact statement can be derived: 1. An environmental impact statement must be sufficiently specific

to direct a reasonably intelligent and informed mind to the possible environmental consequences of the proposed development (per Cripps J in Prineas (at 417)). 2. The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council (at 278)). 3. The environmental impact statement is not required to be perfect. It need not cover every topic or explore every avenue (per Cripps J in Prineas (at 417) and per Hutley JA on appeal (at 163)). 4. The environmental impact statement must not be superficial, subjective or non-informative (per Cripps J in Prineas (at 417)). 5. It should be comprehensive in its treatment of subject matter and objective in its approach (per Cripps J in Prineas (at 417)). 6. Changes to the proposed development may be made between the exhibition of the environmental impact statement and the decision of the decision-maker but not so as to result in a completely different proposal (per Stein J in Golden (at 108)).” Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services The question of whether an EIS is required to consider and examine environmental impacts external to a development site and related to matters over which the applicant/proponent has no control and hence, as a result, no capacity to mitigate those impacts, was considered in the NSWLEC in Bell v Minister for Urban Affairs and Planning and Port Waratah Coal Services (1997) 95 LGERA 86 (Bell v Minister). This case was a challenge to the validity of an EIS for an expansion of Kooragang Island Coal Terminal at Newcastle. The EIS did not include in its assessment of environmental impacts an assessment of the impacts of rail noise on residences adjoining the Main Northern Rail Line caused by coal trains (not owned, or operated, or controlled,

or in any contractual relationship with the applicant) using the railway line (not owned, or controlled or managed by the applicant) where the applicant was not in a position to mitigate any impacts. Bignold J held at p 93, 95 and 110: “There are, in my opinion, two crucially important statements in these passages which paraphrased are to the following effect: (i) Kooragang does not generate rail traffic; rather it responds to the demands of the coal industry; and (ii) a current study being undertaken by DUAP5 is the appropriate means for evaluating impacts from regional rail transport. These statements clearly indicate the reasons for the EIS deliberately not attempting any analysis or assessment of environmental impact in terms of noise and vibration caused to residences adjoining the Northern Railway Line by the passage along the line between the mines situate in the Hunter Valley and Kooragang of trains carrying coal wagons (both laden and empty) other than to predict a significant increase in coal train movements along the rail line. For reasons that will presently be stated I am of the opinion that these statements do not provide a legal justification for the EIS failing to provide an analysis of this particular environmental impact of the proposed development. … [p 95] … However even though it is axiomatic that every development application ‘relates’ to a finite parcel of land upon which the development is proposed to be carried out, a consideration of the development application for such development, conformably to the requirements of s 90(1) of the EP&A Act will almost invariably involve consideration of matters external to that finite parcel of land comprising the development site — see in particular pars (b), (c), (c1), (c2), (d), (h) and (o) of s 90(1).

… In considering this question it is necessary to immediately define precisely what is in issue in this case. It is whether the omission from the contents of the EIS of the particular environmental impact assessment in respect of the noise and vibration effects of coal trains on residences adjoining the Northern Railway Line renders the whole of the EIS in respect of the Stage 3 Expansion of Kooragang invalid. In terms of principle I would respectfully adopt the New Zealand Court of Appeal’s exposition of the issue in the following manner in the Environmental Defence Society case at 535: ‘Although purporting to be an environmental impact report a document may be so deficient that it cannot be said to satisfy the basic requirements of the kind of report necessary for the purposes of … Act. The distinction between nullity on the one hand and irregularity or deficiency on the other is well recognised in other areas of law and it has often been said the question of nullity or otherwise is apt to be a question of degree.’ … [p 110] … In the result I would hold that although the EIS wrongly omitted the material that the Regulation required it to include, the omission, though significant in itself, is not so significant in relation to the content of the EIS, and its function in the decision making processes prescribed by Pt IV of the EP&A Act in respect of designated development, as to invalidate the whole of that EIS. Accordingly I hold that the EIS was a valid EIS and that the Minister, as consent authority, was legally entitled to determine the second respondent’s development application by granting the development consent.” Conclusions

The following conclusions may be derived from Bell v Minister: • The fact that environmental impacts may not be generated by an activity or development does not mean they should not be assessed if they are related to the activity or development, even if they are outside the control of the proponent. • Consideration is required of matters which are external to a development site. • Where an EIS wrongfully omits required matters from consideration, such omission may not be so significant in the context of the EIS as a whole to invalidate the whole EIS. Footnotes 5

CCH comment: “DUAP” refers to the Department of Urban Affairs and Planning.

¶71-080 Environmental Impact Assessment for State significant infrastructure under Pt 5.1 For applications for SSI under Pt 5.1, the following EIA requirements apply: • The Director-General is to prepare environmental assessment requirements. These must require an EIS to be prepared by the proponent in the form and matter prescribed (s 115Y). • The form and consent of an EIS are the same as those which apply for an EIS under Pt 4 and 5 and are contained in Sch 2 of the EPA Regulation (Sch 2, cl 5 of EPA Regulation). • The EIS is then submitted to the Director-General who may require revisions to the EIS (s 115Z(1)–(2)).

• The EIS must be publicly exhibited by the Director-General for a minimum of 30 days (s 115Z(3)). • A response to submissions received by the Director-General may be sought from the proponent and the Director-General may require a preferred infrastructure report on changes to minimise the environmental impacts or address issues raised in the Department’s assessment and the Director-General may make this report public (but is not required to do so) (s 115Z(5)–(7)). • The Director-General provides a report to the Minister (s 115ZA). Section 115ZJ(2) provides that the only mandatory requirement of Pt 5.1 affecting the validity of an approval for SSI is the requirement to exhibit an EIS. As a result, any breaches of the requirements relating to compliance with: • the Director-General’s environmental assessment requirements • the required form of an EIS • the required content of an EIS • requirements for a Director-General’s report to the Minister, and • requirements for the Minister to consider matters in approving the carrying out of SSI, do not affect the validity of an approval for SSI. The scope of such provisions is very wide indeed and largely insulates SSI approvals from challenge in an unprecedented manner — a manner never contemplated by the former Pt 3A.

¶71-090 Principles regarding Environmental Impact Assessment The key principles derived from the discussion on EIA are as follows: Principle 1: EIA applies under Pt 4 to DAs, under Div 4.1 of Pt 4 to

DAs for SSD, under Pt 5 for activities subject to an approval by a determining authority and under Pt 5.1 to applications to carry out SSI. Principle 2: Under Pt 4, a DA for designated development requires an EIS (s 78A(8)(a) of EPA Act). Principle 3: Under Div 4.1 of Pt 4, a DA for SSD requires an EIS, irrespective of whether it is designated development or not (s 78(8A) of EPA Act). Principle 4: For all DAs, the consent authority is required to consider the likely impacts of that development, including environmental impacts (s 79C(1)(b) of EPA Act). Principle 5: The EIA provisions of Pt 5 apply to activities which require an approval from a determining authority (s 111 of EPA Act). Principle 6: The elements of what comprises an “activity” are as follows: • use of land • subdivision of land • erection of a building • carrying out of a work • demolition of a building or work • anything subject to s 26 (ie the scope of potential contents of an EPI) and prescribed by regulations for the purposes of this definition (However, nothing has been prescribed for the purposes of the definition of activity.) • anything that requires a development consent under Pt 4 (ie is permissible with consent) • anything for which development consent under Pt 4 has been obtained (ie it has been permissible with consent and a consent has already been obtained and impliedly is still in force)

• exempt development (ie development declared by an EPI to be exempt development, noting that for development to be declared exempt development it must have minimal environment impact (s 76(2)) • anything that is prohibited by an EPI (ie as it is prohibited by an EPI, it is not required to undertake the development assessment process of Pt 4, but it cannot lawfully be carried out) • development carried out pursuant to an order by the Minister, Director-General or a council under Pt 6, Div 2A (s 121B) in relation to non-compliance or hazards (ie so as to prevent compliance orders potentially being nullified or frustrated), or • development of a class or description that is prescribed by regulation to not be an activity. The demolition of a temporary structure has been prescribed to not be an activity (cl 227AA of EPA Regulation). Principle 7: An approval under Pt 5: • is the granting of a formal consent, licence or permission • extends to any other form of authorisation, including any activity undertaken by the determining authority itself where there is an implicit component that it must have authorised itself to do the activity, and • includes the provision of “financial accommodation” to another person and hence, includes providing money to another person who may use that money for the activity in question. (Section 110 of EPA Act) Principle 8: A determining authority means a Minister or public authority in relation to a particular activity, either on whose behalf the activity is to be carried out, or whose approval is required for the activity to be carried out (s 110 of EPA Act). Principle 9: The duty under s 111 applies to all activities with the only

exceptions being the three categories of exemptions in s 110E (s 111 of EPA Act). Principle 10: The duty under s 112 only applies to a subset of activities, namely activities likely to significantly affect the environment, and does not apply to activities not likely to significantly affect the environment, nor to the three categories of exemptions in s 110E (s 112 of EPA Act). Principle 11: Where applicable, both duties need to be complied with, as compliance with the duty under s 112 does not remove the objection to comply with the duty under s 111 (s 111 and s 112 of EPA Act). Principle 12: In relation to the duty under s 111: • The importance of s 111 is difficult to overestimate (Hannan [No 1]). It has a pivotal role in Pt 5 notwithstanding the 1985 Amendments to Pt 5 (Jarasius). • The requirements of s 111 are mandatory, not directory (Hannan [No 1], Guthega, Jarasius). • The requirements of s 111 are designed to draw attention to the responsibility imposed on a determining authority to protect the environment against the harmful effects of a proposed activity (Guthega, Jarasius). • The standard of examination and consideration required by s 111 of “to the fullest extent possible” needs to have introduced into it an element of reasonableness and practicability such that it is to the “fullest extent reasonably possible” (Guthega) or “fullest extent reasonably practicable” (Jarasius). • Clause 228 of the EPA Regulation provides a checklist of factors for consideration in complying with the duty under s 111 (cl 228 of EPA Regulation, Prineas). Principle 13: The duty imposed by s 112 is to not carry out an activity or grant an approval to an activity if that activity is:

• a prescribed activity (there being none prescribed by regulation), or • likely to significantly affect the environment, unless it has obtained an EIS and processed it in accordance with Pt 5 (s 112 of EPA Act). Principle 14: Compliance with the duty under s 112 requires: • an identification of what is the activity • an identification of what is the relevant environment for that activity • a relationship between the activity and the environment of an affect of the activity on the environment • the level of importance of the relationship or affect, being one which is a “significant affect”, and • the probability of the relationship occurring at the required level of importance, being one of “likely”. (Section 112 of EPA Act) Principle 15: The threshold decision of the determining authority as to whether an activity is likely to significantly affect the environment is framed not as a subjective test of the determining authority forming its opinion, but as an objective test. Thus, the test is a jurisdictional fact, capable of review by the courts and providing a capacity for the courts to substitute their own conclusion on the test if they consider the decision of the determining authority to be incorrect (Kivi, Jarasius). Principle 16: The proponent is entitled to select what the proponent proposes to undertake and hence, to select the activity for examination under Pt 5 (Prineas). Principle 17: In determining whether an activity is likely to significantly affect the environment, the determining authority should consider the activity as proposed, including any ameliorative or mitigating measure(s) included by the proponent on the proposal for which

approval is sought. However, the determining authority should not determine whether an activity is likely to significantly affect the environment by considering any conditions which the determining authority may impose to mitigate environmental impacts (Drummoyne v MSB). Principle 18: A proposed activity may be modified following the exhibition of an EIS without a further EIS being prepared if the changes do not involve a radical transformation of the original activity (Transport Action Group). Principle 19: The following apply in identifying the relevant environment for the purposes of the s 112 duty: • In determining what is the appropriate environment, consideration can be given to areas beyond the area in which the activity is being proposed (Kivi). • The reason for this is to enable an appreciation of the larger undertaking of which the particular activity may form a part, so as to understand the cumulative effects of the activity on the environment (Kivi). • It is necessary to consider the context of the activity. The context of the activity assists in determining the effect of the subject activity plus previous actions (ie the cumulative impacts) and hence, their likely significance (Kivi). • In determining the significance of the impacts of an activity, an important consideration is the significance of the values of the environment within which it is proposed. The higher the environmental values (such as scientific values and proposals for the area to be declared a national park), the lower the threshold of impacts of an activity, which would give rise to a significant impact (Kivi). • While it is relevant to look at the whole undertaking of which the proposed activity forms part, where site specific activities are proposed and possess a discrete and identifiable environment,

the relevant environment is the area where the proposed activity is to be undertaken and its adjoining areas (Jarasius). Principle 20: The following apply to the meaning of “likely to significantly affect” in the s 112 duty: • “Significantly” in s 112 means “important” or “notable” or “more than ordinary” (Drummoyne v RTA, Jarasius). • The meaning of “likely” in the context of the text of likely to significantly affect the environment means only a “real chance” or “possibility” and it does not mean “more probably than not” (Jarasius, Drummoyne v RTA). • In considering impacts of an activity to determine whether it has a significant effect, consideration is given to both immediate shortterm and long-term effects on the environment (Jarasius). The checklist of factors set out in cl 228 of the EPA Regulation is not only relevant for compliance with the s 111 duty but is equally relevant in identifying matters to be addressed in the preparation of an EIS and whether an EIS is required (Prineas). Principle 21: Where an EIS is prepared under Pt 5, the following requirements apply: • The EIS must be publicly notified and available for public inspection for at least 30 days, and any person may make a submission (s 113 and cl 233–235 of EPA Regulation). • At least 21 days before making a decision, the determining authority shall forward copies of submissions received to the Director-General of the Department of Planning (s 113(3)). • The Director-General may undertake an examination and report on an EIS and any submissions and provide a report to the determining authority (s 113(5) and (6)). • The Minister may request a review of any aspect of an activity by the PAC, and the PAC report and the Minister for Planning’s

consideration of the report shall be provided to the determining authority (s 114). • The determining authority must prepare and make public a determination report on any activity for which an EIS has been prepared (cl 243 of EPA Regulation). Principle 22: Where an EIS is required under s 112: • Prior to preparing an EIS, environmental assessment requirements for the EIS are to be obtained from the Director-General and complied with. • The form and contents of the EIS should comply with the EPA Regulation. (Schedule 2 of EPA Regulation). Principle 23: In relation to the Director-General’s environmental assessment requirements for an EIS: • A proponent is bound to comply with the Director-General’s Environmental Assessment requirements for the preparation of an EIS, provided those requirements are relevant to the proposed activity. The requirements are not simply directory, nor can a proponent simply have regard to them and then ignore them. • The environmental assessment requirements need to be expressed as a requirement. If they are expressed as a recommendation only, they are not a requirement and hence, do not need to be complied with. • An environmental assessment requirement may be withdrawn explicitly or by conduct, such as acceptance of the EIS for exhibition. • It is undecided whether a failure to comply with the environmental assessment requirements would result in the subsequent determination being a nullity.

(Prineas and Botany Bay v Minister (in part)) Principle 24: In relation to the contents of an EIS: • The purpose of an EIS is to bring matters to the attention of the public, the Department of Planning and the determining authority so that the environmental impacts of the activity can be properly understood. • An EIS should be sufficiently specific to direct a reasonably intelligent and informed mind to the potential environmental consequences of carrying out or not carrying out the activity. • An EIS should be written in language that may be easily understood and should contain material which would alert lay persons and specialists of problems in the carrying out of the activity. • An EIS is not required to meet a standard of absolute perfection or a standard without regard to considerations of costs, time and resources. • An EIS should not be superficial, subjective or non-informative. If it is, it will not comply with the EPA Act and any resulting decision will be void. • An EIS is valid if it is comprehensive in its treatment of the subject matter, objective in its approach and serves to alert the public and decision-makers of the environment impacts of an activity. • An EIS is not required to cover every topic or explore every avenue advocated by experts. • An EIS is a means to a decision-making end, not a decisionmaking end in itself. The test of validity for an EIS is one of substantial compliance. (Prineas, Schaffer) • The fact that environmental impacts may not be generated by an

activity or development does not mean they should not be assessed if they are related to the activity or development. • Consideration is required of matters which are external to a development site. • Where an EIS wrongfully omits required matters from consideration, such omission may not be so significant in the context of the EIS as a whole to invalidate the whole EIS. (Bell v Minister) Principle 25: Under Pt 5.1, a proposal to carry out SSI requires an EIS to be prepared after obtaining the Director-General’s environmental assessment requirements. The requirements as to the form and content applying to an EIS under Pt 5.1 are the same as for an EIS under Pt 4 and 5 (s 115Y of EPA Act, Sch 2 cl 5 of EPA Regulation). Principle 26: The only mandatory requirement of Pt 5.1 affecting the validity of an approval for SSI is the requirement to exhibit an EIS. Breaches of other requirements, including those relating to compliance with the Director-General’s environmental assessment requirements and the form and content of an EIS do not affect the validity of an approval to carry out SSI (s 115ZJ(2) of EPA Act).

PART M CONCLUSION ¶72-010 Conclusion The purpose of this book has been to examine and explain development and planning law in New South Wales. In doing so, it has sought to identify its underlying policy or rationale, whether it be legislation or judicial decisions. While the details and complexity of planning law have been considered, one should not lose sight of the overarching clarity of its core principles. Analysis of the current state of the law and an understanding of how and why it has evolved into its current state are fundamental to an informed debate as to its future directions. It has not been the purpose of this book to seek to identify or chart those future directions. Nonetheless, it would be remiss not to conclude with the following twelve broad observations on issues of relevance to that task: (1) A more nuanced appreciation is required of the role of the law in policy change and implementation. Law does not lead and create social or professional change, nor does law simply reflect preexisting changes in society and professional practice. Rather, there is a complex interaction between the two, requiring convergent changes in both to achieve real and lasting reform. Just as good organisational structures do not automatically result in good decision-making, so good decision-making can occur despite poor organisational structure. The same is true with the law and planning. Often, too much emphasis is placed on reforming or changing the law in the often unfulfilled hope that this will result in a change in professional practice, but all too often, professional practice endures despite legislative changes. (2) Planning policy and decisions need to exhibit both clarity and

meaning. Too often planning policies and decisions, including (but not limited to) ones reflected in legal provisions, are shrouded in mind-numbing complexity or high-sounding vacuousness. Both are symptoms of “woolly thinking” at best, or deviousness at worst. Examples of mind-numbing complexities are legion. A description that could apply to many plans is that applied by Blow J in the Tasmanian Full Supreme Court in AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal and Ors [2011] TA SFC 5; (2011) 183 LGERA 168 at paragraph [3]: “[3] The planning scheme is very complex, and exceedingly and unnecessarily difficult to comprehend or interpret. Most ordinary people would not have a chance. Most sensible people, or people with a life, would not attempt the task unless they had absolutely no choice. In order to determine how the scheme operates in relation to the appellant’s proposed development, it is practically essential to have a law degree, decades of experience in interpreting legal documents, a talent for understanding gobbledygook and misused words, a lot of time, and a very strong capacity for perseverance.” Alternatively, many planning documents propound policy statements which are little more than vacuous and meaningless platitudes or statements so qualified and so conditioned as to deprive them of any meaning. They are reminiscent of George Orwell’s famous essay on “Politics and the English Language” in which he wrote:1 “The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. … Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.” (3) It is perhaps time that plans relied upon the planning merit of

their contents, rather than legal force for their observation, and that New South Wales should leap forward to the post-1947 United Kingdom law and provide that plans should be advisory rather than statutory documents. This, allied with an emphasis on planning policy documents, structure plans and regional planning, would focus attention on the quality and clarity of the planning outcomes sought. (4) As so much of the planning system relies upon local government, there is a pressing need for local government reform to address issues including appropriate size, roles of elected officials and the skills and resources base of planning staff. (5) An important part of an adequate system of checks and balances in the planning system is an effective and credible merit appeal system and a broadening of the rights of merit appeal. (6) There is a need to stop designing a planning system to circumvent poorly performing sectors, such as perceived performance issues with local councils and a fossilised merit appeals system. Rather, such issues need to be addressed and resolved directly. Much of the complicated accretions to the New South Wales planning law since 1979 are examples of such a practice. (7) There is a lack of proportionality between the size of planning documentation required or the extent of conditions applied to planning approvals, and the nature of the issues involved, or the benefits accrued by mountains of reports and masses of conditions. (8) There is a need for better scoping of timescales to reduce the time taken to reach planning decisions, while ensuring they are professionally-based and well-informed. It is easy to agree with the doyen of planning lawyers from the United Kingdom, Sir Desmond Heap who proclaimed:2 “One of the most difficult things in the whole field of town

planning control today is to get a decision — any decision, even a wrong one!” (9) There is a need to breakdown the unhealthy and antagonistic adversarial culture which has pervaded all stakeholders in the New South Wales planning system. This is, no doubt, engendered by poor public participation and bureaucratic secretiveness and arrogance. It requires meaningful participation by all stakeholders in the decision-making process and a greater transparency of the basis of decisions. (10) There needs to be greater clarity of the roles of the State government and local government with clearly defined and distinct roles and function, rather than the current scrambling and capacity for the State to usurp all of a local council’s roles and functions, largely at whim. Further, the state planning agency needs to perform a coordinating role rather than being a cat’s paw of other state agencies. (11) There needs to be a genuine partnership between the State government and local government with a relationship of trust and respect and a capacity for meaningful dialogue and debate between both levels of government. (12) Planning law needs to comprise a balance of rights, responsibilities, obligations and power between the key stakeholders, such as the State government, councils, applicants, community groups and neighbours, rather than a preponderance of power and control of the State government level. In addition, these rights, responsibilities, obligations and powers should be enforceable and not left to unenforceable discretionary guidelines and procedures. Footnotes 1

Orwell, G, 1946 (accessed on 4 April 2012), Politics and the English Language, see www.orwell.ru/library/essays/politics/english/e_polit, p 6 and

p 8. 2

Heap, Sir D, 1975, The Hamlyn Lectures: The Land and the Development or The Turmoil and the Torment, Stevens & Sons, Ltd, London.

CASE TABLE This is a complete list of all cases referred to in the text. All references are to paragraph (¶) numbers.

A Paragraph AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal and Ors [2011] TA SFC 5; (2011) 183 LGERA 168

¶72-010

ACCC v Maritime Union of Australia (2001) 114 FCR 472

¶65-120

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; 64 LGRA 177

¶29-080

A-G v Bristva Pty Ltd (1964) 10 LGRA 348

¶54-270; ¶54-290; ¶57-070

A-G v J Perry Constructions Pty Ltd (1961) 79 WN (NSW) 235 AT 239; 6 LGRA 385

¶12-030

A-G v Wilts United Dairies Ltd (1922) 91 LJKB 897

¶59-020

A-G for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282

¶62-020

A-G; Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 ¶71-070 NSWLR 955 A-G (NSW) v Quin [1990] HLA 21; (1990) 170 CLR 1

¶15-060; ¶22-080; ¶24-140; ¶26-070;

¶52-010; ¶52-080 A-G (NSW) v X (2000) 49 NSWLR 653; (2003) 129 LGERA 195

¶48-090; ¶48-100; ¶49-060

A-G; Professional Promotions & Services Ltd v [1990] 1 NZLR 501

¶26-060

A-G (Victoria) v City of Knox (1979) 42 LGRA 402

¶14-030

Abalos v Australian Postal Commission (1990) 171 CLR 167

¶21-180

Abebe v Commonwealth (1999) 197 CLR 510

¶22-080

Agostino v Penrith City Council [2010] NSWCA 20

¶29-160; ¶30-020

Albury City v North Albury Shopping Centre Pty Ltd (1985) 1 NSWLR 220

¶33-110

Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273

¶55-130; ¶55-170

Alec Finlayson Pty Ltd v Armidale City Council (1994) 84 LGERA 225

¶24-160

Alghussein Establishment v Eton College [1988] 1 WLR 587

¶65-050

Alison Barry v Minister Administering the ¶70-010 Environmental Planning and Assessment Act, Glendell Coal Ltd & Ors, NSWLEC No 40098, 7 December 1983 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490; (1970) 20 LGRA 208

¶3-020; ¶3070; ¶25070; ¶58020; ¶58060; ¶58070; ¶58-

080; ¶58100; ¶59020; ¶59110; ¶66140 Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435

¶59-060; ¶59-130

Amacon Pty Ltd v Council of the Municipality of ¶34-130; Concord, NSWLEC No 10541 & No 2053, 2 December ¶35-020 1987 Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33

¶22-080

Ampol Petroleum Ltd v Rockdale MC (1953) 19 LGR 64

¶3-040

Ampol Petroleum Ltd v Warringah Shire Council (1956) 1 LGRA 276; 1 LGRA 277

¶3-020; ¶3040; ¶3-050; ¶3-120

Anambah Homes Pty Ltd v Maitland City Council [No 2] [2004] NSWLEC 719

¶60-060; ¶60-070

Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211

¶52-080

Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229

¶58-070

Andrews v Styrap (1872) 26 LT (NS) 704

¶22-080

Anglican Church Property Trust v Sydney City Council ¶57-140 [2003] NSWLEC 353 Anisminic v Foreign Compensation Commission [1969] 2 AC 147

¶7-060; ¶15060

Annwrack Pty Ltd v Williams, Supreme Court Equity Division No 3101 of 1998

¶35-100

Ansett Transport Industries (Operations) Pty Ltd v The ¶52-050 Commonwealth (1977) 139 CLR 54 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237

¶8-020

Apollo Shower Screens Pty Ltd v Building and Industry ¶54-300 Long Service Payments Corp (1985) 1 NSWLR 561 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

¶29-150

Applicant S20/2002, Ex Parte; Re Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165

¶48-170; ¶52-080

Archibald v Byron Shire Council [2003] NSWCA 292

¶69-050; ¶69-120

Architects Haywood & Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138

¶49-060; ¶49-070

Architectural Property Services Pty Ltd v Rockdale City Council (1999) NSWLEC 83

¶49-180; ¶49-190

Arena v North Sydney Municipal Council (1969) 17 LGRA 405

¶29-050

Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202

¶21-270

Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC ¶59-200 502 Arkwright; R v [1848] 12 QB 962; 116 ER 1130

¶41-030

Arncliffe Development Pty Ltd v Rockdale City Council ¶64-040 [2003] NSWLEC 297 Ashfield Municipal Council v Armstrong [2002] NSWLEC 269; (2002) 122 LGERA 105

¶62-020; ¶69-080

Ashfield Municipal Council v Roads and Traffic Authority of NSW [2001] NSWCA 370

¶62-020; ¶62-060

Assn of Architects, Engineers, Surveyors and Draughtsmen of Australia, Ex parte; R v Blakeley (1954) 82 CLR 54

¶22-050; ¶41-030

Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538; (1974) 29 LGRA 323

¶2-050

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680; [1948] 1 KB 223; 45 LGR 635

¶22-010; ¶22-020; ¶22-040; ¶22-050; ¶22-080; ¶23-030; ¶23-100; ¶23-110; ¶23-120; ¶23-130; ¶24-140; ¶51-020; ¶52-080; ¶57-110; ¶58-030; ¶58-050; ¶58-060; ¶58-070; ¶58-080

Atlantic Union Oil Co Pty Ltd v Randwick MC (1956) 20 LGR (NSW) 332

¶3-050

Auburn Council v Nehme [1999] NSWCA 383

¶54-060; ¶54-310; ¶69-030; ¶69-120

Auburn Municipal Council v FN Eckold Pty Ltd [1974] 2 NSWLR 148; (1974) 34 LGRA 101; (1975) 34 LGERA 114

¶21-030; ¶65-040

Auburn Municipal Council v H & E Sidgreaves Pty Ltd (1941) 14 LGR (NSW) 232

¶4-050

Auburn Municipal Council v Szabo (1989) 67 LGRA 427

¶22-080; ¶54-020; ¶54-070; ¶54-100; ¶54-120; ¶54-310; ¶55-040; ¶55-080; ¶55-130; ¶55-140; ¶55-170

Austral Fisheries Pty Ltd; Minister for Primary Industries & Energy v (1993) 40 FCR 381

¶26-060

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

¶26-060

Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1

¶62-030

Australian Children’s Foundation v Blacktown City Council (1987) 62 LGRA 96

¶4-090; ¶4100

Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; 14 LGR (NSW) 149

¶4-050; ¶22030

Australian Heritage Commission (The) v Mount Isa Mines Ltd (1997) 187 CLR 297

¶14-030

Australian Lifestyle Corp Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284

¶8-040

Australian Stevedoring Industry Board, R v; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; 88 CLR 100

¶23-120

Australians for Sustainable Development Inc v Minister ¶23-120; for Planning [2011] NSWLEC 33 ¶67-120

Auten v Ravner [1958] 1 WLR 1300

¶52-050

Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1

¶54-300

Ayr Harbour Trustees v Oswald (1883) 8 AC 623

¶52-050

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

¶22-030

B Paragraph BGP Properties Pty Ltd v Lake Macquarie City Council ¶49-030; [2004] NSWLEC 399; (2004) 138 LGERA 237 ¶49-130; ¶49-140 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274

¶48-080; ¶48-100

Baba v Parole Board of New South Wales (1986) 5 NSWLR 338

¶14-030

Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139

¶54-300; ¶54-310

Baker v Cumberland County Council (1956) LGR 321

¶21-020; ¶21-260; ¶21-340

Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198

¶49-060

Ballina Environment Society Inc v Ballina Shire Council (1992) 78 LGERA 232

¶47-080; ¶47-130

Balmain Association Inc v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615

¶18-080; ¶18-120; ¶18-150; ¶62-020

Balog v Independent Commission Against Corruption (1990) 169 CLR 625

¶18-080

Bank of NSW v Commonwealth (1948) 76 CLR 1

¶60-030

Bankstown City Council v Arnold Land and Environment Court, 31 May 1983

¶69-100

Barrick Australia Ltd v Williams [2009] NSWCA 275

¶24-180; ¶24-210; ¶34-180; ¶66-080; ¶67-080

Bathurst City Council v PWC Properties Pty Ltd (1998) ¶58-060; 195 CLR 566 ¶58-070 Baulkham Hills Shire Council, Re (1962) 9 LGRA 115

¶59-020

Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200

¶62-050

Baulkham Hills Shire Council v Donnell (1990) 69 LGRA 404

¶38-050

Baulkham Hills Shire Council v Group Development Services Pty Ltd [2005] NSWCA 315

¶59-190; ¶59-270

Baulkham Hills Shire Council v Hall, 29 June 1990

¶55-080

Baulkham Hills Shire Council v Horseworld Australia Pty Ltd (1997) 95 LGERA 194

¶4-090; ¶4100

Baulkham Hills Shire Council v Land Commission of NSW (1985) 55 LGRA 337

¶43-080; ¶50-010

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

¶21-160; ¶21-170; ¶21-180; ¶21-200; ¶21-210; ¶21-340; ¶69-020;

¶69-050 Baulkham Hills Shire Council v Wrights Road Pty Ltd (2007) NSWCA 152

¶59-260; ¶59-270

Bechara v Plan Urban Services Pty Ltd & Ors [2006] NSWLEC 594

¶66-200; ¶66-220

Bedford v Ku-ring-gai Municipal Council (1983) 50 LGRA 437

¶15-020

Bell v Minister for Urban Affairs and Planning and Port ¶71-070; Waratah Coal Services (1997) 95 LGERA 86 ¶71-090 Belle Design Group Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 284

¶25-040

Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171

¶48-170; ¶49-290; ¶52-020; ¶52-090

Belongil Progress Association Inc v Byron Shire Council [1999] NSWLEC 271

¶12-060; ¶15-050; ¶18-150

Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257

¶66-110; ¶66-140; ¶66-180; ¶66-220

Bennett, Re; Ex parte Redgrave (1946) 46 SR (NSW) 122

¶22-050; ¶41-030

Bentham & Anor v Kiama Municipal Council & Ors (1986) 59 LGRA 94

¶22-020; ¶22-030; ¶22-040; ¶22-080

Benz v Blacktown Municipal Council (1971) 25 LGRA 133

¶4-050; ¶4100

Besmaw Pty Ltd v Sutherland Shire Council (2003)

¶65-120

127 LGERA 413 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223

¶64-030

Bevan, R v; Ex Parte Elias and Gordon (1942) 66 CLR ¶62-030 452 Bhardwaj; Minister for Immigration and Multicultural Affairs v (2002) 76 ALJR 598; [2002] HCA 11

¶12-080; ¶38-030; ¶62-040; ¶62-060

Blackmore Design Group Pty Ltd v North Sydney ¶49-060; Council [2001] NSWLEC 279; (2001) 118 LGERA 290 ¶49-070 Blair v Blue Mountains City Council and Hayward t/a Blaxland Veterinary Clinic (1997) 93 LGERA 189

¶22-030

Blakeley, R v; Ex parte Assn of Architects, Engineers, Surveyors and Draughtsmen of Australia; R v (1954) 82 CLR 54

¶22-050; ¶41-030

Blue Metal and Gravel (Country) Pty Ltd v Kiama Municipal Council (1985) 54 LGRA 305

¶25-140

Blue Mountains City Council v Laurence Browning Pty ¶29-140; Ltd (2006) 150 LGERA 130; (2006) 67 NSWLR 672; ¶29-160; [2006] NSWCA 331 ¶48-140 Bluewater District Services Pty Ltd v Sutherland Shire Council (1997) 97 LGERA 389

¶35-120

Bob Blakemore Pty Ltd v Anson Bay Co (Australia) Pty ¶21-170; Ltd, NSWCA, 23 March 1990 ¶21-180 Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432

¶23-080

Boland v Canadian National Railway Co [1927] AC 198

¶19-060

Bonus Pty Ltd v Leichhardt Municipal Council (1954)

¶21-050;

19 LGR 375

¶21-070; ¶21-100

Booton v Clayton (1948) 48 SR (NSW) 336

¶62-050

Boral Resources (Country) Pty Ltd v Clarence Valley Council Avard; Cemex Australia Pty Ltd v Clarence Valley Council and Avard [2009] NSWLEC 81

¶38-040; ¶46-020

Boral Resources (NSW) Pty Ltd v Wingecarribee Shire ¶65-100; Council [2003] NSWLEC 39 ¶65-120 Botany Bay City Council v Minister for Planning [2006] ¶71-070; NSWLEC 194 ¶71-090 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

¶49-110

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446; 50 NSWLR 312; [2000] NSWCA 364

¶34-130; ¶34-140; ¶34-170; ¶35-110; ¶71-070

Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308

¶58-080; ¶58-100

Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120; (No 2) [2003] NSWLEC 166

¶21-100; ¶21-310; ¶21-340; ¶69-020; ¶69-080; ¶69-120

Botany Bay Council v Premier Customs Services Pty Ltd [2009] NSWCA 226

¶53-050

Botany Council v Tsolakis, NSWLEC, 30 November 1988

¶4-070

Boulton v Burwood MC (1988) 66 LGERA 131

¶52-050

Bourne v Marrickville Council (1954) 19 LGR (NSW)

¶68-090

218 Bowen v Willoughby City Council [2001] NSWLEC 274 ¶29-110 Bradford City Metropolitan Council v Secretary of State for the Environment [1986] 1 EGLR 199

¶49-210; ¶49-220

Brewer; R v (1942) 66 CLR 535

¶62-020

Brickworks Ltd v The Council of the Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568

¶54-300; ¶62-050

Bridge Shipping Pty Ltd v Grand Shipping SA & Anor (1991) 173 CLR 231

¶34-100

Brighton Borough Council v Secretary of State for Environment (1978) 39 P & CR 46

¶49-220

Brind, Ex parte; R v Secretary of State for Home Department [1991] 1 AC 696

¶26-060

Bristva Pty Ltd; A-G v (1964) 10 LGRA 348

¶54-270; ¶54-290; ¶57-070

British Oxygen Co Ltd v Minister for Technology [1971] ¶52-050 AC 610 Broadbridge v Stammers [1987] 16 FCR 296

¶62-030

Broker Pty Ltd v Shoalhaven City Council [2008] NSWCA 311

¶59-210; ¶59-270

Bromley London Borough Council v Greater London Council [1983] 1 AC 768

¶22-020; ¶22-040; ¶52-080

Brooklyn Resort Pty Ltd v Hornsby Shire Council and Anor [1999] NSWLEC 214

¶31-020; ¶54-180; ¶54-310

Brooks v Minister for Planning & Environment (1988) 68 LGRA 91

¶14-030

Broussard v Minister for Immigration and Ethnic Affairs ¶48-170; (1989) 21 FCR 472 ¶49-090 Brown v Randwick City Council [2011] NSWLEC 172

¶7-150

Brown v West (1990) 169 CLR 195

¶62-030

Bruce v Cole (1998) 45 NSWLR 163

¶14-030; ¶48-170; ¶49-090; ¶52-080

Bruce Kerr Pty Ltd v Gosford City Council (1994) 83 LGERA 295

¶52-050; ¶52-090

Bryan v Lane Cove Council [2007] NSWLEC 586; (2007) 158 LGERA 390

¶14-050; ¶18-120; ¶18-150

Bryson Industries Ltd v Sydney City Council (1963) 8 LGRA 395

¶64-040

Buck v Bavone (1976) 135 CLR 110

¶14-030

Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54

¶59-090; ¶59-100; ¶59-110; ¶59-120

Bungendore Residents Group Inc v Palerang Council and Anor (No 3) [2007] NSWLEC 251

¶24-170; ¶24-190; ¶24-210

Burns Philp Trustee Co Ltd v Wollongong City Council ¶11-030; (1983) 49 LGERA 420 ¶18-080; ¶18-100; ¶18-150; ¶19-050; ¶19-090 Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75

¶48-160; ¶53-110;

¶53-120 Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434

¶56-050

C Paragraph CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270

¶21-130; ¶21-170; ¶21-190; ¶21-200; ¶21-210; ¶21-220; ¶21-330; ¶21-340

CIC Insurance v Bankstown Football Club Inc (1997) 187 CLR 355; (1997) 187 CLR 384

¶25-070; ¶71-070

CSR v Wingecarribee Shire Council (No 2), Unreported, 17 December 1991

¶66-100

CSR Ltd (t/a CSR Readymix) v Wingecarribee Shire Council, NSWLEC No 10372, 17 December 1990

¶49-140

Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50

¶34-230; ¶44-030

Caldera Environment Centre Inc v Tweed Shire Council

¶48-170

Calleja v Botany Bay City Council (2005) 142 LGERA 104

¶25-070

Calvin v Carr [1979] 1 NSWLR 1; [1980] AC 574

¶62-020

Cambridge Credit Corp Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196

¶34-090; ¶35-030

Cameron v Nambucca Shire Council (1997) 95

¶48-120;

LGERA 268

¶57-080; ¶57-100

Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210

¶56-050

Canterbury District Residents and Ratepayers ¶13-030; Association Inc v Canterbury Municipal Council (1991) ¶13-040; 73 LGRA 317 ¶18-150 Canterbury Municipal Council v Moslem Alaway Society Ltd (1985) 1 NSWLR 525

¶49-250

Canterbury Municipal Council v Perri (1982) 47 LGRA 111

¶62-050

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294

¶57-070; ¶57-090; ¶57-100; ¶57-150

Capital Airport Group Pty Ltd v Director-General of the ¶11-050; NSW Department of Planning (No 2) [2011] NSWLEC ¶18-150 83 Captain Cook Cruise Pty Ltd v North Sydney Council (2002) 126 LGERA 233

¶66-180

Cardwell Shire Council v King Ranch Australia Pty Ltd ¶58-080 [1984] HCA 39; 58 ALJR 386 Cariste Pty Ltd v Council of the City of Blue Mountains ¶4-050; ¶4[1996] NSWCA 92 100 Carltona v Commissioners of Works [1943] 2 All ER 560 & 563

¶53-110; ¶53-120; ¶53-140; ¶53-150

Carr v Finance Corp of Australia Ltd (No 2) (1982) 150 ¶69-050 CLR 139 Carr v Minister for Land and Water Conservation [2000] NSWLEC 89

¶56-080

Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1

¶14-040; ¶48-010; ¶49-130; ¶49-140; ¶49-190; ¶49-290

Cartier Holdings Pty Ltd v Newcastle City Council [2001] NSWLEC 170

¶49-190; ¶49-200

Casa v City of Ryde Council [2009] NSWLEC 212

¶57-110; ¶57-150

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52

¶8-030; ¶8040

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459

¶19-080; ¶19-090

Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65

¶58-070; ¶58-100

Cecec (No. 8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251

¶19-080; ¶49-230

Cemex Australia Pty Ltd v Clarence Valley Council and Avard; Boral Resources (Country) Pty Ltd v Clarence Valley Council Avard [2009] NSWLEC 81

¶38-040; ¶46-020

Central West Environment Council Inc v Orange City Council [2003] NSWLEC 131

¶52-080

Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257

¶39-030; ¶46-020; ¶47-110; ¶48-010; ¶48-170; ¶49-290; ¶53-140; ¶53-150; ¶62-020

Centro Properties Ltd v Warringah Council & Anor [2003] NSWLEC 145

¶23-100; ¶23-130

Challister Ltd v Blacktown City Council (1992) 76 LGRA 10

¶9-020; ¶9060

Chambers v Maclean Shire Council (2003) 57 NSWLR ¶22-070; 152; [2003] NSWCA 100 ¶22-080; ¶34-150; ¶34-240 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114

¶21-270

Chan v Minister for Immigration & Ethnic Affairs 169 CLR 379

¶15-060; ¶48-170

Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352

¶58-070

Chase Property Investments Pty Ltd v Blue Mountains ¶34-090 City Council [2005] NSWLEC 476 Chertsey Urban District Council v Mixnam’s Properties ¶3-020; ¶58Ltd [1964] 2 All ER 627; [1965] AC 735 030 Chief Constable of Sussex, R v; Ex Parte International ¶52-080 Trader’s Ferry Ltd [1998] 3 WLR 1260 Chippendale Estates Pty Ltd v Sydney City Council [1960] NSWR 536; (1960) 6 LGRA 194

¶3-020; ¶3060

Chissold v Perry [1904] HCA 12

¶58-060

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249

¶61-010

Chumbrairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480

¶52-050

Church of Scientology v Woodward (1982) 154 CLR 25

¶7-060

City of Botany Bay v NSW Land and Housing Corp [2010] NSWLEC 160

¶53-120; ¶53-150

City of Bradford Metropolitan Council v Secretary of State for the Environment [1986] 1 EGLR 199

¶49-220

City of Heidelberg v Melbourne and Metropolitan Board of Works [No 2] (1979) 42 LGRA 21

¶47-130

City of Marion v Lady Becker and Ors (No 2) (1973) 30 ¶50-010 LGRA 288 City of Unley v Claude Neon Ltd (1983) 32 SASR 329; ¶56-050 49 LGRA 65 City of Whyalla; R v (1979) 44 LGRA 371

¶52-050; ¶52-090

City West Housing Ltd v Sydney City Council [1999] NSWLEC 246; (1999) 110 LGERA 262

¶29-110; ¶49-180; ¶49-190; ¶49-200

Claude Neon v Rockdale Municipal Council, NSWLEC, 10 September 1985

¶29-070

Clements v Bull (1953) 88 CLR 572

¶26-060

Clifford v Wyong Shire Council (1996) 89 LGERA 240

¶24-140; ¶24-150; ¶24-160; ¶24-190; ¶24-210; ¶52-050; ¶52-090

Clyde and Co v Secretary of State for the Environment ¶3-020; ¶3(1977) 3 All ER 1123 100; ¶51020 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317

¶65-070; ¶65-080

Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; (2006) 148 LGERA 11

¶24-190; ¶47-120

Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185

¶23-030; ¶23-070; ¶23-080; ¶23-090; ¶23-130; ¶49-070

Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324

¶8-020; ¶8030

Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1993) 80 LGERA 342

¶8-050

Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391

¶62-050

Cohen v Wyong Shire Council [2005] NSWCA 46

¶4-050

Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541

¶59-170

Coleman v Gray (1994) 55 FCR 412

¶60-030

Coles v Woollahra Municipal Council (1986) 59 LGRA 133

¶48-080; ¶48-100

Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning and Wagga Wagga City Council (1996) 90 LGERA 341

¶7-070; ¶7080; ¶9-030; ¶9-060; ¶13070; ¶14030

Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1968] 1 All ER 945

¶4-060

Colin Maybury v Weston Aluminium (Producers) Pty Ltd [1998] NSWLEC 17

¶55-160; ¶55-170

Collector of Customers v Agfa-Gevaert Ltd (1996) 186 ¶22-010; CLR 389; [1996] HCA 36 ¶22-030

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417

¶22-050; ¶22-080; ¶24-180

Colvest No 27 Pty Ltd v Hastings Municipal Council, NSWLEC No 10617, 22 March 1988

¶29-110

Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 42

¶59-020

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

¶54-300

Commissioner of Police v Tanos (1957-58) 98 CLR 383

¶14-030

Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340

¶48-160

Commonwealth of Australia (The) v The State of NSW ¶3-110 (1923–24) 33 CLR 1 Concord Municipal Council, Re; Ex-parte Wright (1925) 7 LGR 79

¶54-190; ¶54-310

Concrite Quarries Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97

¶66-150

Connell v Armidale City Council, NSWLEC No 10272 & 20068, 25 September 1996

¶33-060; ¶33-110

Conomos v Chryssochoides (1997) 97 LGERA 113

¶4-050; ¶4090; ¶4-100

Cooper Brookes (Wollongong) Pty Ltd v FC of T [1981] HCA 26; (1981) 147 CLR 297

¶25-030; ¶59-170; ¶61-010

Corkhill v Hope (1981) 74 LGRA 33

¶52-050; ¶52-090

Corp of the City of Enfield v Development Assessment ¶22-060; Commission [2000] HCA 5; (2000) 199 CLR 135 ¶22-070;

¶22-080; ¶23-100; ¶34-170 Corp of the City of Unley v Claude Neon Ltd (1983) 32 ¶56-030 SASR 329 Coshott v Sakic, NSWCA, 3 September 1998

¶54-300

Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675

¶50-010

Coty (England) Pty Ltd v Sydney City Council (1957) 2 ¶49-050 LGRA 117 Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166

¶60-020

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

¶24-140; ¶52-080

Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493; [1959] HCA 14; (1959) 100 CLR 1

¶68-060

Council of the City of Parramatta v Precision Rubber Service Pty Ltd [1995] NSWLEC 34

¶31-060

Council of the City of Parramatta (The) v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1; (1972) LGRA 437

¶4-040; ¶4050; ¶4-100; ¶58-090

Council of the Shire of Warringah v Jennings Group Ltd [1992] NSWCA 50

¶25-090

Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 372

¶9-050; ¶9060

Craig v South Australia (1995) 184 CLR 163

¶22-050; ¶23-100; ¶24-160; ¶41-030

Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379

¶25-070

Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81

¶34-160; ¶34-170; ¶35-130

Crawley v Sydney City Council (1998) 98 LGERA 21

¶35-120

Crosland v North Sydney Council (2000) 109 LGERA 244

¶21-280

Crowley v Hastings Municipal Council (1982) 4 APAD 115

¶34-130; ¶35-030; ¶35-110

Cullimore v Lyne Regis Corp [1962] 1 QB 718

¶13-020

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty ¶9-050; ¶9Ltd [2011] HCA 27 060 Cunliffe v Commonwealth (1994) 182 CLR 272

¶26-060

Curac v Shoalhaven City Council (1993) 81 LGERA 124

¶34-120; ¶47-080; ¶47-090

Currency Corp Pty Ltd v Wyong Shire Council [2006] NSWLEC 692

¶69-080; ¶69-120

Currey v Sutherland Shire Council (1998) 100 LGERA ¶24-150; 365 ¶24-160; ¶24-170; ¶24-190; ¶24-210; ¶48-140; ¶48-160 Currey v Sutherland Shire Council [2002] NSWLEC 195

¶34-140; ¶34-180

Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223

¶22-080; ¶34-150;

¶34-240 Customs and Excise Commissioner v Viva Gas Appliances Ltd [1983] 1 WLR 1445; [1984] 1 All ER 112

¶21-030

Cynon Valley BC v Secretary of State for Wales (1986) 85 LGR 36

¶54-120

D Paragraph DMW v CGW (1982–83) 151 CLR 491

¶22-050; ¶41-030

Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48

¶38-050; ¶46-020

Darling Casino Ltd v Minister for Planning and Sydney ¶13-050; Harbour Casino Pty Ltd (1995) 86 LGERA 186 ¶26-050 Davenport v Waverley Municipal Council (1981) 46 LGRA 97

¶47-090

Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128

¶49-060

Davis v Pember (1958) 5 LGRA 78

¶68-090

Day v Pinglen Pty Ltd (1981) 55 ALJR 416; 45 LGRA 168

¶65-040

Deerubbin Local Aboriginal Land Council; Minister Administering the Crown Lands Act v (No 2) (2001) 113 LGERA 148

¶13-060

Dem Gillespies v Warringah Council [2002] NSWLEC 224

¶23-080; ¶23-090; ¶23-100; ¶23-130

Denham Pty Ltd v Manly Council (1995) 89 LGERA 108

¶59-240; ¶59-270

Dennis Foster Insurance Brokers Pty Ltd v Sydney City Council [1999] NSWLEC 53

¶33-080

Deputy Industrial Injuries Commissioner, R v; Ex Parte ¶52-080 Moore [1965] 1 QB 456 Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) ¶65-130; 77 LGRA 1 ¶65-140 Design 23 Pty Ltd v Sutherland Shire Council [2003] NSWLEC 90; (2003) 125 LGERA 380

¶29-100; ¶29-110

Designlink International v Baulkham Hills Shire Council [1999] NSWLEC 218

¶57-090

Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404

¶65-090; ¶65-120; ¶65-140

Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209

¶49-060; ¶49-070

Director-General New South Wales Department of Health v Industrial Relations Commission of NSW [2010] NSWCA 47

¶7-150

Director of Public Prosecutions v Hutchinson [1990] 2 AC 783

¶13-050

Dixon v Burwood Council [2002] NSWLEC 190

¶49-250

Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53

¶58-070; ¶58-100

Doody, Ex parte; R v Secretary of State for the Home Department [1993] QB 157; [1994] 1 AC 531

¶48-160

Dorney v FC of T [1980] 1 NSWLR 404

¶59-170

Dorrestijn v South Australian Planning Commission

¶69-020

[1984] HCA 76 (1984) 59 ALJR 105; (1984) 54 LGRA 99 Doueihi v Canterbury City Council [2003] NSWLEC 267

¶47-100

Doyle v Newcastle City Council (1990) 71 LGERA 55

¶21-280

Drake & Ors; Auburn Council v Minister for Planning and Anor; Collex Pty Ltd [2003] NSWLEC 270

¶21-250; ¶21-280; ¶25-030

Drake and the Minister for Immigration and Ethnic ¶26-060; Affairs, Re (No 2) [1979] 2 ALD 634; [1979] AATA 179; ¶52-050; (1979) 24 ALR 577 ¶53-060 Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; 30 LGRA 237; [1974] HCA 34

¶21-030; ¶54-160; ¶65-040

Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186

¶41-040; ¶71-060; ¶71-090

Drummoyne Municipal Council v Page (1973) 2 NSWLR 566

¶54-150; ¶54-310

Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155

¶71-060

Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424

¶61-040

Dunkley v Evans [1981] 1 WLR 1522

¶13-050

Dyldam Developments P/L v Holroyd City Council [2001] NSWLEC 204

¶34-090

E Paragraph

East Barnet Urban District Council v British Transport Commission [1961] 3 All ER 878; [1962] 2 QB 484

¶3-110; ¶49210

Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270; 25 LGRA 369

¶61-040; ¶68-060; ¶69-010; ¶69-050; ¶69-070; ¶69-120

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR ¶52-040 337 Ebsworth v Sutherland Shire Council [2005] NSWLEC ¶34-090 603 Edgar v Lane Cove Municipal Council (1961) 7 LGRA 45

¶54-290; ¶57-070

Edmondson and Anor v Warringah Council and Anor

¶12-050

Edward Listin Properties Pty Ltd v North Sydney Council [No 2] [2000] NSWLEC 181

¶49-070

Edward Ramia Ltd v African Woods Ltd [1960] 1 WLR 86

¶13-020

Egan v Hawkesbury City Council (1993) 79 LGERA 321

¶21-220; ¶21-340; ¶23-040; ¶25-060; ¶25-090; ¶29-120; ¶62-050; ¶71-070

El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293

¶13-050; ¶13-070

Elali v Campbelltown City Council (2004) 135 LGERA 85

¶34-090

Elarosa Investments Pty Ltd v South Sydney City Council (1994) 83 LGERA 211

¶54-250

Elias and Gordon, Ex Parte; R v Bevan (1942) 66 CLR ¶62-030 452 Ellmoos v Sutherland Shire Council (1962) 79 WN (NSW) 709; 8 LGRA 16

¶33-040

Emanuele v Australian Securities Commission (1997) 188 CLR 114

¶34-140

Emmot v Ku-ring-gai Municipal Council (1954) 3 LGR 177

¶53-020

England Fawcett Properties Ltd v Buckingham County ¶3-020 Council (1959) 1 Ch 543 Ervin Mahrer and Partners v Strathfield Council (No 2) ¶34-090 115 LGERA 259 Eshetu; Minister for Immigration and Multicultural Affairs v [1999] HCA 21; 197 CLR 611

¶24-180; ¶48-160; ¶52-080; ¶66-190

Etheridge v Secretary of State for the Environment (1984) 48 P & CR 35

¶65-050

Evans v Maclean Shire Council (2004) 138 LGERA 229; [2004] NSWLEC 512

¶21-290; ¶34-220

Evans v Marmont (1997) 42 NSWLR 70

¶49-090; ¶71-070

Evans v Western Australia (1997) 77 FCR 193

¶56-050

Everall & Clough v Ku-ring-gai Municipal Council (1991) 72 LGRA 369

¶47-070

F

Paragraph F Hannan Pty Ltd v Electricity Commission of NSW [1983] 3 NSWLR 282; 51 LGRA 369

¶71-040; ¶71-050

F Hannon Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306

¶59-230; ¶62-020

F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

¶62-020

F Lucas & Sons Ltd v Darking and Horley Rural District Council (1964) 17 PQ CR QBD 111

¶54-090; ¶54-310

F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537

¶52-040; ¶52-090

FG Whiteley & Sons Ltd v Secretary of State for Wales ¶65-050; (1992) 64 P & CR 296 ¶65-080 FN Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114

¶62-050

Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373

¶49-170; ¶49-190; ¶49-200; ¶69-070; ¶69-120

Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, 17 February 1997

¶49-250

Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41

¶7-120; ¶58070; ¶59160; ¶59270

Falkiner v Director-General of Planning NSW [2002] NSWLEC 159

¶12-080

Fast buck$ v Byron Shire Council (1999) 103 LGERA 94

¶29-110

Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177

¶69-030; ¶69-120

Fawcett Properties Ltd v Buckingham County Council [1960] 3 All ER 503; [1961] AC 636

¶3-020; ¶3080; ¶3-090; ¶58-020; ¶58-030; ¶58-060

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5

¶8-030

Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190

¶66-150; ¶66-220

Fisher v Hebburn Ltd (1960) 105 CLR 188

¶69-050

Fitch v Shoalhaven City Council (1977) 67 LGRA 165

¶7-120; ¶59100; ¶59160

Fitzgerald v City of Canada Bay Council [2004] NSWLEC 293

¶47-120

Flynn v Director of Public Prosecutors [1998] 1 VR 322 ¶56-050 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

¶21-110; ¶21-120; ¶21-140; ¶21-160; ¶21-170; ¶21-180; ¶21-190; ¶21-210; ¶21-220; ¶21-290; ¶21-340; ¶69-020

Foote v Browne (1977) 35 LGRA 146

¶54-300

Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242

¶62-020

Foreman v Sutherland Shire Council (1964) 10 LGRA 261

¶49-230

Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687

¶62-030

Forrester v Marrickville Municipal Council (1954) 19 LGR (NSW) 232

¶21-010; ¶21-100; ¶68-090

Forssberg, Ex Parte; In Re Warringah Shire Council (1927) 8 LGR 74; (1927) 27 SR (NSW) 200

¶54-200; ¶54-210; ¶54-300; ¶54-310

Forster, Ex parte; Re University of Sydney [1963] SR (NSW) 723

¶48-160

Fox and Clinton, Ex parter; R v Hickman (1945) 70 CLR 598

¶7-050; ¶7060; ¶7-070; ¶7-080; ¶7090; ¶7-100; ¶7-110; ¶7120; ¶7-130; ¶7-140; ¶7150; ¶7-160

Franklins Ltd v Penrith City Council and Campbells Cash & Carry Pty Ltd [1999] NSWCA 134

¶19-080; ¶23-060; ¶23-100; ¶24-160; ¶24-170; ¶24-190; ¶24-210; ¶62-020

Franklins Stores Pty Ltd v Lizelle Pty Ltd; A-G [1977] 2 ¶71-070 NSWLR 955 Frevcourt Pty Ltd v Wingecarribee Shire Council

¶59-170

[1993] NSWLEC 65; (1993) 80 LGERA 75 Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107

¶59-050; ¶59-250; ¶59-270

Fridrich Constructions Pty Ltd v Leichhardt Municipal Council, NSWLEC No 20540, 23 December 1982

¶3-020; ¶3030; ¶3-100; ¶3-110; ¶3120

Friends of Pryor Park Inc v Ryde Council and Sydney Montessori Society Inc, NSWLEC 40100, 25 September 1995

¶21-220; ¶21-240; ¶21-280; ¶21-330; ¶21-340

Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128

¶12-090; ¶14-050; ¶18-150

G Paragraph GHD Pty Ltd v Pristine Waters Council [2001] NSWLEC 186

¶59-170

GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256

¶56-060; ¶56-080; ¶56-090; ¶58-010; ¶62-020; ¶62-060

GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303; (2006) 151 LGERA 116

¶19-080; ¶53-120

Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGR 5

¶58-080; ¶58-100

Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617

¶11-040

Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388

¶11-040; ¶13-070; ¶14-060; ¶18-150

Gange v Sullivan (1966) 116 CLR 418

¶4-030; ¶54290; ¶57070

Garbacz v Morton [2002] NSWLEC 17

¶4-020; ¶4050; ¶4-100

Gemsted Pty Ltd v Gosford City Council (1993) 78 LGERA 395

¶34-120

Genders v Government Insurance Office of NSW (1959) 109 CLR 363

¶21-290

Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33

¶56-050; ¶56-070; ¶56-080

Gergeley & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400

¶29-070; ¶29-110

Gilderthorpe Investment v Sutherland Shire Council (2000) 109 LGERA 275

¶21-280

Gillespies v Warringah Council (2002) 124 LGERA 147

¶23-090

Gillespie, Re; Ex parte Hulin (1965) 65 SR (NSW) 31

¶22-080

Gillott v Hornsby Shire Council (1964) 10 LGRA 285

¶59-020

Glenpatrick Pty Ltd v Maclean Shire Council, NSWLEC, 18 May 1989

¶21-170

Gold Star Bakeries Pty Ltd v Waverley Municipal Council (1964) 10 LGRA 396

¶21-090

Golden v Coffs Harbour City Council (1991) 72 LGRA 104

¶71-070

Golden Chemical Products Ltd, In Re [1976] Ch 300

¶53-120

Goodwins (Sydney) Pty Ltd v Sydney City Council (1960) 5 LGRA 346

¶21-080; ¶21-090

Gorczynski v Perera [2004] NSWCA 70

¶62-030

Gordon & Valich Pty Ltd v City of Sydney [2007] NSWLEC 780

¶31-020; ¶54-180; ¶54-310; ¶66-020; ¶66-220

Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208

¶4-090; ¶4100

Gough and Gilmour Holdings Pty Ltd v The Council of the City of Holroyd [2002] NSWLEC 108

¶58-090; ¶58-100

Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57

¶69-020

Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400; (1981) 44 LGRA 422

¶34-200; ¶55-150; ¶55-170; ¶63-020

Granville Developments Pty Ltd v Holroyd Municipal Council (1969) 18 LGRA 34

¶59-020

Great Lakes Shire Council; R v (1986) 58 LGRA 366

¶34-130; ¶34-200; ¶48-120; ¶48-130; ¶48-140; ¶48-150; ¶48-170; ¶49-290

Great Portland Estates plc v Westminster City Council ¶49-210 [1984] All ER 744; [1985] AC 661 Greek Australian Finance Corp Pty Ltd v Sydney City Council (1974) 29 LGRA 130

¶3-110; ¶59020; ¶59110; ¶60010; ¶60020; ¶60030; ¶60070

Green v Kogarah Municipal Council [2001] NSWCA 123

¶65-080; ¶65-120; ¶65-140

Greenpeace Australia Ltd v Redbank Power Company ¶49-130 Pty Ltd & Anor (1994) 86 LGERA 143 Grollo Australia Pty Ltd v Minister for Planning & Urban Growth & Development (1993) 1 VR 627

¶14-030

Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638

¶62-060

Grozier v Tate (1946) 64 WN (NSW) 16 LGR 57

¶69-040

Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655

¶12-030

Guideline Drafting and Design v Marrickville Municipal ¶19-060; Council (1988) 64 LGRA 275 ¶19-070 Guthega Development Pty Ltd v Minister ¶53-110; Administering the National Parks and Wildlife Act 1974 ¶53-150; (NSW) (1986) 7 NSWLR 353; 61 LGRA 401 ¶71-050; ¶71-070; ¶71-090 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140

¶14-020

H Paragraph Hadoat Pty Ltd & OR Ugo Pty Ltd v Bathurst City Council, NSWLEC No 20063, 31 July 1995

¶63-030

Halfin v Sydney City Council (2000) 110 LGERA 464

¶35-120

Halglide Pty Ltd v PT Ltd; Blacktown City Council and McNamara Property Management Pty Ltd (1990) 71 LGRA 215

¶55-080; ¶55-130; ¶55-140

Hall & Co Ltd v Shoalhaven-by-Sea Urban District Council [1964] 1 WLR 240; [1964] 1 All ER 1

¶49-210; ¶58-030; ¶58-070; ¶60-020

Halliday and Anor v Hornsby Shire Council [1979] 1 NSWLR 391

¶21-320

Hamman v Lake Macquarie City Council [1999] NSWCA 82

¶53-120

Hammercall Pty Ltd v Gold Coast City Council (2004) 140 LGERA 303

¶58-070

Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367

¶54-300

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648

¶18-080

Hardees v Beaumont [1953] VLR 315

¶62-020

Hardenbergia v Baulkham Hills Shire Council (2002) 125 LGERA 273

¶21-290

Hardi v Woollahra Municipal Council, NSWLEC, 17 December 1987

¶47-050; ¶47-070

Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 ¶13-050

Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd [2002] NSWLEC 106

¶34-140

Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council, NSWLEC, 8 July 1981

¶34-130; ¶35-080

Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49

¶49-060

Hastings Municipal Council v Mineral Deposits Ltd [1981] 1 NSWLR 310

¶69-110; ¶69-120

Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285

¶8-040; ¶8050

Hatton v Beaumont (1977) 2 NSWLR 211; (1978) 52 ALJR 589

¶12-030; ¶12-050; ¶14-020

Hawkesbury City Council & Anor v Sammut (2002) 119 LGRA 171

¶62-050

Hayes v Cable (1961) 7 LGRA 341

¶33-090

Helman v Byron Shire Council (1995) 87 LGERA 349

¶34-120; ¶34-170; ¶41-030

Hely Horne Perry Medcalfe Architects Pty Ltd v Sydney City Council, NSWLEC, 16 February 1999

¶49-250

Hemmes Holdings Pty Ltd v City of Sydney Council [2004] NSWLEC 539

¶37-050; ¶46-020

Herbert v Warringah Council (1997) 98 LGERA 270

¶33-060; ¶33-070; ¶33-080; ¶33-100; ¶66-150

Hickman, R v; Ex parte Fox and Clinton (1945) 70 CLR 598

¶7-050; ¶7060; ¶7-070; ¶7-080; ¶7-

090; ¶7-100; ¶7-110; ¶7120; ¶7-130; ¶7-140; ¶7150; ¶7-160 Hill v Blacktown City Council (2007) 154 LGERA 418

¶58-070

Hill v Green (1999) 48 NSWLR 161

¶52-080

Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7

¶48-160; ¶48-180; ¶62-020; ¶62-060

Hill Top Residents Action Group v Minister for Planning [2009] NSWLEC 185

¶4-070; ¶4100

Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; 220 CLR 472

¶54-070

Hodes, Ex Parte; R v Windsor Licensing Justices [1983] 1 WLR 685; [1983] 2 All ER 551

¶66-140

Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127

¶62-050

Holland v Bankstown Municipal Council (1956) 2 LGR 143

¶33-040

Hollis v Shoalhaven City Council [2002] NSWLEC 83

¶38-030; ¶46-020

Holloway Brothers Ltd v Hill [1902] 2 Ch 612

¶54-300

Holmes v Ryde Municipal Council (1969) 90 WN (Pt 1) ¶54-280; (NSW) 290 ¶54-290; ¶54-300; ¶54-310 Holmes Anor v Permanent Trustee Company of NSW Ltd & Ors (1932) 47 CLR 113

¶34-100

Holroyd City Council v Murdoch (1994) 82 LGERA 197 ¶4-070; ¶4100 Holroyd Municipal Council v Mangano [1972] 2 NSWLR 439; (1972) 26 LGRA 357

¶4-030; ¶37090; ¶57070

Holroyd Municipal Council v Rogers (1969) 17 LGRA 388

¶54-300

Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65

¶13-070; ¶18-150

Hood, Re; Ex parte Mullen (1935) 35 SR (NSW) 289

¶22-080

Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438; NSWLEC, 2 June 1986

¶29-070; ¶29-090; ¶29-110; ¶30-020

Hooker-Rex Estates v Hornsby Shire Council, NSWLEC No 10506, 27 July 1983

¶29-070; ¶29-110

Hooper v Lucas (1990) 71 LGRA 27

¶47-060

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; 41 LGRA 262

¶13-040; ¶22-010; ¶22-030; ¶22-040

Hopkins v Tweed Shire Council [2001] NSWLEC 75; (2001) 113 LGERA 406

¶54-240; ¶54-250; ¶54-310

Hornsby Shire Council v Devery (1965) 12 LGRA 31; (1965) 12 LGRA 34

¶34-110; ¶34-140

Hornsby Shire Council v Porter (1990) 19 NSWLR 716 ¶47-040 Hornsby Shire Council v Vitone Developments Pty Ltd ¶41-060; [2003] NSWLEC 272 ¶46-020; ¶62-050; ¶62-060

Hortis v Manly Council (1999) 104 LGERA 43

¶24-170; ¶24-190

Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190

¶23-080

House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498

¶22-080; ¶25-020; ¶49-250; ¶52-030; ¶52-090; ¶55-120

House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440

¶25-030

Howard v Bodington (1877) 2 PD 203

¶12-030

Howard Hargrave Pty Ltd v Penrith City Council (1958) ¶48-080 3 LGRA 260 Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169

¶52-050

Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349

¶48-070; ¶49-290

Hub Action Group Inc v Minister for Planning and Orange City Council [2008] NSWLEC 116

¶24-190; ¶24-210

Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 51 FLR 213

¶55-090; ¶55-170

Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1995) 130 ALR 447

¶55-090

Hudak v Waverley Municipal Council (1990) 18 NSWLR 709; (1990) 70 LGRA 130

¶69-020; ¶69-060; ¶69-100; ¶69-120

Hulin, Ex parte; Re Gillespie (1965) 65 SR (NSW) 31

¶22-080

Hunt v Blacktown City Council [2001] NSWCA 216; (2001) 116 LGERA 356

¶23-070; ¶23-080; ¶23-130

Hunt, R v; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 323

¶49-090; ¶71-070

Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169

¶65-120; ¶65-140

Hunter Valley Vineyards Association v Council of the City of Cessnock [1998] NSWLEC 76

¶22-080

Hutchinson 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151

¶58-080; ¶58-100; ¶60-040

Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) 123 LGERA 312

¶21-290

I Paragraph IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62

¶29-040; ¶63-020

Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 37

¶53-060

Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27

¶59-230; ¶59-270

Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

¶52-080

International Trader’s Ferry Ltd, Ex Parte; R v Chief Constable of Sussex [1998] 3 WLR 1260

¶52-080

Ireland v Cessnock City Council (1999) 103 LGERA 285

¶33-090; ¶33-110; ¶52-030; ¶52-090

Ireland v Cessnock City Council (1999) 110 LGERA 311

¶49-280; ¶49-290

Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132

¶65-050; ¶65-070; ¶65-080; ¶65-090; ¶65-120; ¶65-140

Irving v Goulburn Mulwaree Council [2008] NSWLEC 144

¶48-100; ¶49-290

Ivanhoe Coal Pty Ltd v TransGrid (2000) 107 LGERA 53

¶59-170

J Paragraph J v Lieschke (1986-87) 162 CLR 446

¶14-030

J & J O’Brien Pty Ltd v South Sydney City Council [2001] NSWLEC 128

¶4-080

J & J O’Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259

¶4-050; ¶4100; ¶24050

J Mison v Randwick Municipal Council, NSWLEC, 29 August 1989

¶48-130

J Murphy and Sons Ltd v Secretary of State for the Environment (1973) 1 WLR 560

¶49-180

JNH Group Pty Ltd v Gosford City Council [2004]

¶34-240

NSWLEC 205 Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors, 40033, 3 October 1985

¶48-170

Jacklion Enterprises Pty Ltd v Sutherland Shire Council, NSWLEC, 8 July 1998

¶33-100

Jackson v Slattery [1984] 1 NSWLR 599

¶7-070

Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245

¶66-040; ¶66-220

Jambrecina v Blacktown City Council [2009] NSWCA 228

¶4-050; ¶4100

Jansen v Cumberland County Council (1952) 18 LGR (NSW) 167

¶49-030

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79; (1990) 71 LGRA 79

¶49-230; ¶49-250; ¶71-050; ¶71-060; ¶71-090

Jeblon Pty Ltd v North Sydney Council (1982) 48 LGRA 113

¶34-140; ¶35-020; ¶35-120

John Alexander Graham v Hornsby Shire Council [1988] NSWLEC 28

¶50-010

John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213; (1999) 106 LGERA 150

¶12-050; ¶14-040; ¶14-050; ¶18-120; ¶18-150

John Bruce & Partners Pty Ltd v North Sydney Municipal Council (1984) 55 LGRA 238

¶33-060

Johns v Australian Securities Commission (1993) 178 CLR 408

¶62-030; ¶66-140;

¶66-180 Johnson v City of Lake Macquarie Council (1996) 91 LGERA 331

¶47-110

Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99

¶49-280; ¶49-290

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

¶24-160; ¶54-300

Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252

¶19-080

Jones v Sutherland Shire Council (1978) 38 LGRA 432

¶54-300

Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323

¶69-030

Judges (The) v A-G for Saskatchewan (1937) 53 TLR 464

¶52-050

Jumal Developments Pty Ltd v Parramatta City Council (1969) 17 LGRA 11

¶59-020

Jungar Holdings Pty Ltd v Eurobodalla Shire Council and Dublee Holdings Pty Ltd (1989) 70 LGRA 79

¶48-130; ¶48-140; ¶49-290; ¶56-050

Jurkovic v City of Port Adelaide (1979) 41 LGRA 71

¶62-050

K Paragraph KR Wilson Pty Ltd v Kogarah Municipal Council (1966) ¶29-050 12 LGRA 259 Kanne Pty Ltd v Botany Bay City Council [2001]

¶23-050;

NSWLEC 163

¶23-080

Kavanagh v Baulkham Hills Shire Council (1983) 48 LGRA 370

¶4-040; ¶4100

Kent v Parramatta City Council (1984) 51 LGRA 399

¶13-020; ¶13-030

Kent County Council v Kingsway Investments (Kent) Ltd [1970] 1 All ER 70; [1971] AC 72

¶56-050; ¶58-030; ¶60-020; ¶60-030

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; 40 LGRA 132

¶49-160; ¶49-170; ¶49-180; ¶49-190; ¶49-200; ¶49-290

Kerslake v Ryde Municipal Council (1970) 19 LGRA 318

¶33-040

Khan v Minister for Immigration and Ethnic Affairs, 11 December 1987; (1987) 14 ALD 291

¶48-160; ¶48-170; ¶49-090

Kiama Municipal Council v French (1984) 54 LGRA 42 ¶4-040; ¶4100 Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737

¶65-110

Kindimindi Investments Pty Ltd v Lane Cove Council & ¶48-170; Anor [2006] NSWCA 23 ¶49-290; ¶52-080; ¶56-070; ¶56-080; ¶56-090; ¶58-010; ¶58-080;

¶58-100 King v Bathurst Regional Council (2006) 150 LGERA 362

¶58-070

King Gee Clothing Co Pty Ltd v Commonwealth (1945) ¶56-050 71 CLR 184 King, Marwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505

¶66-170; ¶66-190; ¶66-200; ¶66-220

Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA)

¶3-110; ¶59170

Kingston-upon-Thames Royal London Borough v Secretary of State for the Environment [1974] All ER 193; [1973] 1 WLR 1549

¶58-030

Kingsway Investments (Kent) Ltd v Kent County Council [1971] AC 72

¶60-010

Kirk v Industrial Relations Commission [2010] HCA 1

¶7-110; ¶7130; ¶7-140; ¶7-150; ¶7160; ¶18120

Kirkjian v Towers, Eq, 6 July 1987

¶35-100

Kivi v Forestry Commission of NSW (1982) 47 LGRA 38

¶71-060; ¶71-090

Know County v Ninth National Bank 147 US 91

¶62-020

Knowles v Fuller (1947) 48 SR (NSW) 243

¶33-090

Kouflidis v Sainsbury City Corp (1982) 29 SASR 321; 49 LGRA 17

¶49-280; ¶49-290; ¶52-030

Kriticos v Parramatta City Council (1971) 21 LGRA

¶60-010

404 Kruf v Warringah Shire Council, 15 December 1988

¶29-080; ¶29-130

Ku-ring-gai Council v Sydney Joint Regional Planning Panel (No 2) [2010] NSWLEC 270

¶44-100; ¶46-020

Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154

¶21-120

Ku-ring-gai Municipal Council v Minister for Planning and Environment and Anor (1982) 49 LGRA 223

¶12-050

Ku-ring-gai Municipal Council v Minister for Planning and Environment and Mirvac Pty Ltd (1983) 49 LGRA 223

¶15-020

Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402

¶49-250

Kur-ing-gai Municipal Council v Mirvac (1982) 49 LGRA 223

¶11-030

Kurtovic; Minister for Immigration, Local Government and Ethnic Affairs v (1990) 21 FCR 193

¶62-050

Kwiksnax Mobile Industrial & General Caterers Pty Ltd, Ex parte (1990) 70 LGRA 38

¶4-090

L Paragraph LN Price Pty Ltd v Leichhardt Municipal Council (1959) ¶21-070; 4 LGRA 63 ¶21-340 Ladhams v State Planning Authority (1982) 52 LGRA 32

¶48-080

Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; (2003) 132

¶58-050; ¶58-070;

LGERA 225

¶58-100; ¶59-060; ¶59-140; ¶59-180; ¶59-270

Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122; 140 LGERA 185

¶62-020

Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157

¶69-020; ¶69-040; ¶69-050; ¶69-100; ¶69-120

Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74

¶29-140; ¶30-030

Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270

¶34-120; ¶41-090; ¶46-020; ¶49-130

Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350

¶69-080; ¶69-120

Lee v Sydney City Council (1983) 50 LGRA 382

¶50-010

Legal & General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201

¶29-110; ¶29-140

Legal and General Life of Australia Ltd v North Sydney ¶29-110 Municipal Council (1989) 68 LGRA 192 Legg v Inter London Education Authority [1972] 1 WLR ¶66-070 1245 Leichhardt Municipal Council v Maritime Services Board (NSW) (1985) 57 LGRA 169

¶22-040

Leichhardt Municipal Council v Minister for Planning and Director of Planning (1992) 78 LGERA 306;

¶12-030; ¶12-040;

(1992) 77 LGRA 64

¶12-050; ¶26-040; ¶26-060; ¶48-140; ¶53-110; ¶53-150

Leichhardt Municipal Council v Minister for Planning (No 2) (1995) 87 LGERA 78

¶12-030; ¶12-040; ¶12-050; ¶14-030; ¶14-040; ¶14-050; ¶15-040; ¶18-120; ¶18-150

Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44

¶55-070

Leighton Properties Pty Ltd v North Sydney Council (1998) 98 LGERA 382

¶29-110

Lemair (Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167

¶61-010

Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389

¶69-070

Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61

¶48-130

Lend Lease Management Pty Ltd and Burns Philp Trustee Co Ltd v Sydney City Council, Heritage Council of NSW and New World Properties (NSW) Pty Ltd (1986) 68 LGRA 61

¶56-020; ¶56-030; ¶56-050; ¶56-090

Leppington Pastoral Company Pty Ltd v Department of ¶26-060 Administrative Services (1990) 23 FCR 148 Lesnewski v Mosman Municipal Council [2005]

¶7-110; ¶7-

NSWCA 99

160

Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76; 79 FCR 399

¶15-060; ¶62-040; ¶62-060

Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190

¶59-220; ¶59-270

Lewis and North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344

¶69-050

Lewis; R v (1995) 88 LGERA 183

¶69-050

Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1

¶66-030; ¶66-130; ¶66-220

Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60

¶25-030

Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14

¶70-010

Lindsay Petroleum Co v Hurd (1874) LR5PC 221

¶7-030

Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47

¶33-040; ¶33-050; ¶33-060; ¶33-100; ¶33-120

Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91

¶13-040; ¶13-060; ¶13-070; ¶18-110; ¶18-150; ¶47-100; ¶47-120

Little v Fairfield Municipal Council (1962) 8 LGR 64

¶54-210; ¶54-310

Liu v Fairfield City Council, NSWLEC No 10384, 23 December 1996

¶49-170

Liverpool City Council v Hodge and Anor [2005] NSWLEC 170

¶24-050

Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61; (1973) 28 LGRA 28

¶54-140; ¶54-310; ¶65-040

Liverpool City Council v Roads and Traffic Authority of ¶71-070 NSW (1991) 744 LGRA 265 Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211; 51 LGRA 114

¶4-050; ¶4090; ¶21140; ¶21170; ¶21180; ¶21340; ¶69020

Lloyd v Robinson [1962] HCA 36

¶58-060

Local Government Board v Arlidge [1915] AC 120

¶48-160

Lockwood v Commonwealth (1954) 90 CLR 177

¶62-030

Logan-Bald Partnership v Byron Shire Council (2002) 123 LGERA 225

¶21-290

Londish v Knox Grammar School & Anor (1997) 97 LGERA 1

¶21-200; ¶21-210; ¶22-040; ¶22-050; ¶22-060; ¶22-070; ¶22-080

London Borough of Hillingdon, R v; Ex parte Royco Homes (1974) 2 All ER 643; [1974] QB 720

¶3-020; ¶3090

Longa v Blacktown City Council (1985) 54 LGRA 422

¶33-060;

¶33-100; ¶33-120; ¶52-030 Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45

¶55-100; ¶55-110; ¶55-130; ¶55-170

Loretta Constructions & Investments Pty Ltd v Gosford ¶54-290; Shire Council [1972] 2 NSWLR 340; (1972) 25 LGRA ¶54-300; 294 ¶54-310; ¶57-070 Lowe v Mosman Municipal Council (1953) 19 LGR (NSW) 193

¶33-030; ¶33-060

Lowe, R v (1954) 19 LGR (NSW) 345, 348

¶4-050; ¶4100

Lowy v Land and Environment Court of NSW & Ors (2002) 123 LGERA 179; [2002] NSWCA 353

¶29-130; ¶29-140; ¶29-150; ¶29-160; ¶30-030

Luceme v Collins (1967) 86 WN Pt 1 (NSW) 247; 14 LGRA 186

¶9-020

Ludeke, R v; Ex parte Queensland Electricity Commission (1985) 159 CLR 178

¶22-050; ¶41-030

Ludwig v Coshott (1991) 83 LGERA 22

¶9-030; ¶9060

Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134

¶54-300

Luu v Renevier (1989) 91 ALR 39

¶15-060

Lux Motor Auctions Pty Ltd v Bankstown Municipal Council 20 LGR (NSW) 178

¶3-040; ¶33040

Lyne v Moree Plains Shire Council (1999) 110 LGERA ¶21-030 120 Lyons v Sutherland Shire Council [2001] NSWCA 430

¶52-020; ¶52-090

M Paragraph MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; [2006] NSWLEC 581

¶34-160; ¶58-070

MLC Properties v Camden Council (1997) 96 LGERA 52

¶60-040; ¶60-070; ¶62-020

MP Metals Pty Ltd v FC of T (1968) 117 CLR 631

¶25-030

McBain v Clifton Shire Council [1996] 2 QdR 493

¶56-050

McCabe v Blue Mountains City Council (2006) 145 LGERA 86

¶29-140

McCawley v R [1920] AC 691

¶8-020

McDonald v McDonald [1875] LR 2 Sc & Div 482

¶60-020

MacDonald v Mosman Council [1999] NSWLEC 215

¶58-080; ¶58-100

McDougall v Warringah Shire Council (1993) 30 NSWLR 258; 80 LGERA 151

¶35-090; ¶35-130

McGovern v Ku-ring-gai Council [2008] NSWCA 209

¶34-170; ¶52-040; ¶52-050; ¶52-090

McGrath v Kristensen 340 US 162, 177–8 (1950)

¶22-080

McGregor v Bathurst City Council [1995] NSWLEC 71

¶58-070

Mackenzie v Warringah Council (2002) NSWLEC 131

¶23-080

Macksville & District Hospital v Mayze (1987) 10 NSWLR 708

¶62-020

McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR ¶62-020 835 Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218

¶21-130; ¶21-200; ¶21-210; ¶21-220; ¶21-330; ¶21-340

Magor and St Mellons Rural District Council v Newport ¶58-090 Corp [1952] AC 189 Mahon v Air New Zealand [1984] 1 AC 808

¶52-080

Mahoney v Industrial Registrar of NSW (1986) 8 NSWLR 1

¶48-080

Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455

¶7-110; ¶7120; ¶7-140; ¶7-160; ¶60060

Malcolm v Newcastle City Council (1991) 73 LGRA 356

¶22-040; ¶56-050

Mandalong Progress Inc v Minister for Planning [2003] ¶54-180; NSWLEC 142 ¶54-310 Manly Council v Hortis (2001) 113 LGERA 321

¶24-170; ¶24-190

Marjen Pty Ltd v Coles Supermarkets Australia Pty Ltd ¶9-030; ¶9and K-Mart Australia Ltd (1996) 90 LGERA 363 040; ¶9-060 Markakis v Mosman Municipal Council [1998] NSWLEC 223

¶58-070

Marscon Pty Ltd v Holroyd City Council [2003] NSWLEC 22

¶21-260; ¶21-340

Marshall v Nottingham Corp (1960) 1 WLR 707

¶21-100

Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9

¶33-130

Mathers v North Sydney Council [2000] NSWLEC 84

¶49-060; ¶49-070

Matic v Mid-Western Regional Council [2008] NSWLEC 113

¶25-070

Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51

¶58-090

Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263

¶59-190

Maule v Liporoni & Anor [2002] NSWLEC 25

¶40-030; ¶46-020

Maurice v Bankstown Municipal Council (1962) 8 LGRA 173

¶54-300

Maxwell v Hornsby Council (2002) 121 LGERA 186

¶21-290

Maxwell v Murphy (1957) 96 CLR 261

¶69-050

Maybury on behalf of Kurri/Weston District Concurred Citizens Action Group v Minister for Planning and Alumino Australia Pty Ltd (1995) 87 LGERA 154

¶47-090

Mayor (The), Alderman and Councillors of Stepney; R v (1902) 1 KB 317

¶50-010

Medical Board of South Australia, R v; Ex Parte S (1976) 14 SASR 360

¶52-050

Medway v Minister for Planning and Southern Highlands Quarries (1993) 80 LGERA 121

¶70-010

Melbourne Stevedoring Co Pty Ltd, Ex parte; R v

¶23-120

Australian Stevedoring Industry Board [1953] HCA 22; 88 CLR 100 Melbourne Water Corp v Domus Design Pty Ltd (2007) 154 LGERA 256

¶58-070

Memel Holdings Pty Ltd v Pittwater Council (2000) 110 ¶29-090; LGERA 217; [2001] NSWLEC 240 ¶29-100; ¶29-110 Meneling Station Pty Ltd, Ex Parte; R v Toohey (1982) ¶71-070 158 CLR 327 Meriton Apartments Pty Ltd v Minister for Urban Affairs ¶3-110; ¶3and Planning (2000) 107 LGERA 363; [2000] 120; ¶59NSWLEC 20 060; ¶59190 Merri Creek Quarry Pty Ltd v Foletta (1951) HCA 12; 82 CLR 347; 82 CLR

¶4-040

M’Gahey v Alston (1836) 2 M&W 206; 150 ER 731

¶62-020

Miah, Ex Parte; Minister for Immigration and Multicultural Affairs, Re (2001) 206 CLR 57

¶71-070

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48

¶52-040

Midland Railway Co v Robinson (1889) LR 15 App Cas 19

¶25-030

Mietta’s Melbourne Hotel Pty Ltd v Roper (1988) 17 ALD 112

¶14-030

Miller v Sutherland Shire Council [2008] NSWLEC 158 ¶64-030 Miller-Mead v Minister of Housing and Local Government [1963] 1 All ER 459; 2 QB 196

¶54-080; ¶54-310; ¶55-020; ¶55-040; ¶55-120; ¶55-170

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349

¶56-030; ¶56-040; ¶56-050; ¶56-060; ¶56-070; ¶56-080; ¶56-090; ¶57-070; ¶57-080; ¶57-100; ¶57-120; ¶57-130; ¶57-150; ¶58-010; ¶60-020; ¶60-050; ¶60-070; ¶62-020

Mitchell v R (1996) 70 ALJR 313

¶26-060

Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333

¶22-080

Mobil Oil Australia v Ku-ring-gai Municipal Council (1990) 70 LGRA 419

¶69-070; ¶69-120

Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374

¶49-030

Momentum Architects Pty Ltd v Hornsby Shire Council ¶21-290; (2002) 123 LGERA 207 ¶21-300 Monahan, Ex Parte; R v Westminster City Council ¶3-110; ¶49[1990] 1 QB 87; [1989] 2 All ER 74; [1989] 3 WLR 408 180; ¶49200; ¶49210; ¶49220 Monaro Acclimatation Society v The Minister,

¶13-030;

NSWLEC, 2 March 1989

¶47-080; ¶47-120

Moore v Attorney General (Irish Free State) [1935] AC ¶62-030 484 Moore v Kwiksnax Mobile Industrial & General Caterers Pty Ltd

¶4-090

Moore, Ex Parte; Regina v Deputy Industrial Injuries Commissioner; [1965] 1 QB 456

¶52-080

Morris v Woollahra Municipal Council [1966] HCA 65; (1966) 116 CLR 23; 13 LGRA 117

¶68-090; ¶69-030; ¶69-120

Morton v Union Steamship Co of New Zealand Ltd (1951) 88 CLR 402

¶66-180

Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79

¶49-250; ¶52-030; ¶62-020

Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280

¶66-150; ¶66-220

Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437

¶56-050

Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302

¶4-050; ¶4090; ¶4-100

Mulcahy v Blue Mountains City Council [No 2] (1995) 87 LGERA 422

¶4-040; ¶4100

Mullen, Ex parte ; Re Hood (1935) 35 SR (NSW) 289

¶22-080

Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212

¶35-100

Murphy v Matlock [1926] VLR 170

¶9-020

Murray, R v; Ex parte Proctor (1949) 77 CLR 387

¶7-070; ¶7090

Murrayfield Pty Ltd v Townsville City Council; Vamanda Pty Ltd v Townsville City Council (1983) 51 LGRA 20

¶59-170

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11

¶52-080

N Paragraph NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307

¶26-060

NSW Aboriginal Land Council v Aboriginal Torres Strait Islander Commission (1995) 131 ALR 559

¶24-140

NSW Aboriginal Land Council; Minister Administering the Crown Lands Act v (No 2) (1997) 42 NSWLR 641

¶4-070

NSW Aboriginal Land Council; Minister Administering the Crown Lands Act v [2008] HCA 48; 82 ALR 1505

¶4-070; ¶4100

NSW Aboriginal Land Council; Minister for Natural Resources v (1987) 9 NSWLR 154

¶62-020; ¶62-060

NSW Associated Blue Metal Quarries Ltd v FC of T (1956) 94 CLR 509

¶22-030; ¶25-030

Nancy Shetland Pty Ltd v Melbourne and Metropolitan ¶21-030 Board of Works (1974) 34 LGRA 151 Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR (NSW) 163

¶49-030

Napper v Shoalhaven Shire Council, 12 February 1988

¶29-130

Nat Bell Liquors Ltd, R v [1922] 2 AC 128

¶22-080

National Trust of Australia (NSW) v Minister

¶47-130

Administering the Environmental Planning and Assessment Act (1981) 53 LGRA 37 National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218

¶21-290

Natva Developments Pty Ltd v McDonald Bros Pty Ltd ¶9-060; ¶18[2004] NSWSC 777 080 Nelson v Burwood Municipal Council (1991) 75 LGRA 39

¶47-070

Nestra v Leichhardt Municipal Council (1986) 59 LGRA 100

¶69-100

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

¶53-060

New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

¶23-090; ¶23-130; ¶49-230; ¶49-250

Newbury DC v Secretary of State for the Environment [1980] 1 All ER 731; [1981] AC 578

¶49-210; ¶54-110; ¶58-030; ¶58-050; ¶59-060; ¶58-070; ¶58-080; ¶58-100; ¶59-060; ¶59-170; ¶62-050

Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249

¶25-030

Newcastle City Council v Kermir Pty Ltd (1989) 69 LGRA 289

¶25-050

Newcastle City Council v Royal Newcastle Hospital

¶4-070

(1956–1957) 96 CLR 493 Newcastle City Council v Royal Newcastle Hospital [1959] AC 248; (1959) 4 LGRA 154

¶4-070; ¶4100

Newcastle Mining (WA) Ltd v The Commonwealth (1997) 190 CLR

¶62-030

Newton v Wyong Shire Council, NSWLEC No 40135, 6 September 1983

¶49-230; ¶49-240; ¶49-290

Nirimba Developments Pty Ltd v Sertari Pty Ltd [2007] ¶35-100 NSWSC 252 Noarlunga City Corp v Fraser (1986) 62 LGRA 324

¶4-050

Noble House Corp Pty Ltd v Sydney City Council [1999] NSWLEC 190

¶65-060

Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143

¶68-090

Norbis v Norbis (1986) 161 CLR 513

¶52-080

Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83; 31 LGRA 368

¶21-180; ¶68-080; ¶69-010; ¶69-020; ¶69-050; ¶69-120

Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1998) 98 LGERA 335

¶12-050; ¶14-020; ¶52-050; ¶52-090

North Shore Gas Co v North Sydney Municipal Council, NSWLEC, 27 June 1991

¶59-120

North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, NSWLEC No 10185 of 1986, 15

¶29-110

September 1986 North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435

¶34-140; ¶35-100; ¶49-100

North Sydney Council v Ligon 302 Pty Ltd [1996] HCA ¶34-210; 20; (1996) 185 CLR 470 ¶35-130 North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23

¶19-070; ¶19-080; ¶19-090; ¶49-100

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 474; 97 LGERA 433

¶14-050; ¶33-110; ¶66-030; ¶66-070; ¶66-140; ¶66-180; ¶66-210; ¶66-220

North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGRA 344

¶23-070; ¶68-020; ¶69-010; ¶69-020; ¶69-120

North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41

¶65-020; ¶65-080; ¶65-120

North Sydney Municipal Council v PD Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222

¶24-100; ¶29-080; ¶29-150; ¶29-160; ¶30-030

North Sydney Municipal Council v Parlby , NSWLEC

¶29-110

No 10613, 13 November 1986 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532

¶69-020

Northern Territory Planning Authority v Murray Meats NT Pty Ltd (1983) 48 ALR 188; 51 LGRA 158

¶65-090

Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230

¶49-100; ¶54-250

Nymboida Shire Council v Skar Industries Pty Ltd [1998] NSWLEC 166

¶69-050; ¶69-120

O Paragraph Oakes; R v (1986) 26 DLR (4th) 200

¶26-060

Oakimber Ltd v Elmbridge Borough Council (1991) 62 P & CR 594

¶65-050

Oladehinde, Ex Parte; R v Secretary of State for the Home Department [1991] 1 AC 254

¶53-110

Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170

¶52-050

Olsen v City of Camberwell [1926] VLR 58

¶13-050

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] ¶66-180; NSWLEC 685 ¶66-220 O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1

¶48-160

Oshlack v Richmond River Shire Council (1994) 82 LGERA 236

¶22-040

Ostler, Ex parte; R v Secretary of State for the Environment [1977] QB 122

¶7-060

O’Sullivan v Farrer (1989) 168 CLR 210

¶49-180; ¶49-270

Owners Strata Plan No 50411 v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5

¶35-120

P Paragraph Paino v Woollahra Municipal Council (L1990) 71 LGRA 62

¶35-090

Palme, Ex Parte; Re Minister for Immigration and Multicultural Affairs [2003] HCA 56; (2003) 216 CLR 212

¶23-120; ¶53-060

Panagopoulos v Willoughby City Council (1992) 78 LGERA 270

¶54-230; ¶54-250

Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

¶48-160

Park Street Properties Ltd v City of South Melbourne [1990] VR 545

¶54-120

Parkes v Byron Shire Council [2003] NSWLEC 104

¶34-070

Parkes Development Pty Ltd v Cambridge Credit Corp ¶47-030; Ltd [1974] 2 NSWLR 590; (1974) 33 LGRA 196 ¶47-130 Parramatta City Council v Brickworks Ltd (1970) 128 CLR 1; 18 LGRA 395

¶4-040

Parramatta City Council v Brickworks Ltd [No 3] [1972] ¶4-040; ¶68HCA 21; (1972) 128 CLR 1; 26 LGRA 437 060; ¶69010; ¶69050; ¶69120 Parramatta City Council v Hale (1982) 47 LGRA 319

¶22-020; ¶24-160; ¶48-110; ¶48-140; ¶48-160; ¶49-090; ¶49-290; ¶53-120

Parramatta City Council v Kriticos [1971] 1 NSWLR 140; (1971) 21 LGRA 404

¶60-020; ¶60-030

Parramatta City Council v Pestell 128 CLR 305

¶14-030; ¶15-060

Parramatta City Council v Peterson (1987) 61 LGRA 286

¶3-110; ¶58050; ¶58070; ¶59110; ¶59120; ¶59170; ¶59270

Parramatta City Council v Shell Co of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25 (SC)

¶4-040; ¶4100

Parramatta City Council v Shell Co of Australia Ltd

¶4-040; ¶4-

[1972] 2 NSWLR 632; (1972) 27 LGRA 102 (CA)

100; ¶54030; ¶55050; ¶55080; ¶55120; ¶55170

Parramatta City Council v Stonewale Pty Ltd, NSWLEC, 22 February 1991

¶4-070

Parramatta City Council v Takchi, NSWLEC, 17 April 1996

¶49-060

Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319

¶15-060

Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231

¶49-130

Patrick Autocare Pty Ltd v Minister for Infrastructure Planning & Natural Resources [2004] NSWLEC 687

¶56-060

Paul Winn v Director-General of National Parks and Wildlife and RZM Pty Ltd, NSWLEC No 40209, 23 November 1995

¶61-010

Pearce v City of Coburg [1973] VR 583

¶62-020

Pearson v Leichhardt MC (1997) 93 LGERA 206

¶54-300

Peko-Wallsend; Minister for Aboriginal Affairs v [1986] ¶14-060; HCA 40; HCA 50; (1986) 162 CLR 24 ¶15-060; ¶22-040; ¶23-030; ¶23-060; ¶24-140; ¶48-090; ¶48-100; ¶48-140; ¶48-160; ¶48-170;

¶49-060; ¶49-130; ¶52-010; ¶52-090; ¶53-110; ¶53-120; ¶53-130; ¶53-150 Penrith City Council v Penrith Waste Services Pty Ltd, ¶54-120 19 December 1995 Penrith City Council v Waste Management Authority (1990) 71 LGRA 376

¶21-170; ¶21-190; ¶21-290; ¶21-340; ¶34-120; ¶38-020

Penrith Waste Services Pty Ltd v Penrith City Council (1988) 10 LGERA 98

¶69-030; ¶69-120

Perder Investments v Lightowler (1990) 25 FCR 150

¶52-050

Perrin v Peters (1983) 48 LGRA 123 and on appeal (1983) 52 LGRA 198

¶22-080

Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345

¶49-230; ¶49-250

Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99

¶34-090

Peters v R (1886) LR 16 QBD 636

¶25-030

Pilkington v Secretary of State for the Environment & Ors [1974] 1 All ER 283

¶31-030; ¶54-130; ¶54-310; ¶66-020

Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205

¶35-090

Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1AC 132; [1984] 2 All ER 358

¶54-110; ¶54-120; ¶54-310; ¶62-050

Pioneer Concrete v Port Macquarie Concrete, Unreported, 20 July 1984

¶22-020

Pioneer Concrete (Qld) Pty Ltd v Brisbane City ¶34-120; Council [1980] HCA 1; (1980) 145 CLR 485; 44 LGRA ¶34-190; 346 ¶34-200; ¶69-020 Pitt-Mullis v Sydney City Council (1964) 10 LGRA 242

¶3-020; ¶3060

Pittwater Council v Minister for Planning [2011] NSWLEC 162

¶57-130

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

¶7-090; ¶7100; ¶7-110; ¶7-120; ¶7130; ¶7-140; ¶7-150; ¶7160

Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30

¶58-060

Plumb v Penrith City Council and Anor [2002] NSWLEC 223

¶23-100

Plymouth and South Devon Cooperative Society, Ex Parte; R v Plymouth City Council (1993) 2 EGLR 206

¶49-220

Plymouth City Council, R v; Ex Parte Plymouth and ¶49-220 South Devon Cooperative Society (1993) 2 EGLR 206 Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638

¶15-060; ¶62-040

Port Louis Corp v A-G of Mauritius [1965] AC 1111

¶12-030; ¶12-050

Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426

¶49-140

Porter v Hornsby Shire Council 19 NSWLR 716; 70 LGRA 175; (1989) 69 LGRA 101

¶47-060

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549

¶15-060; ¶48-150; ¶48-170

Prineas v Forestry Commission of NSW (1983) 49 LGRA 402

¶34-120; ¶41-090; ¶71-070

Prineas v Forestry Commission of NSW (1984) 53 LGRA 160

¶11-040; ¶31-040; ¶71-060

Proctor, Ex parte; R v Murray (1949) 77 CLR 387

¶7-070; ¶7090

Professional Promotions & Services Ltd v A-G [1990] 1 NZLR 501

¶26-060

Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236

¶66-090

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 72 ALJR 841

¶3-110; ¶12050; ¶12070; ¶14030; ¶15050; ¶18120; ¶18150; ¶22010; ¶22050; ¶22080; ¶41030

Provincial Insurance Australia Pty Ltd v Consolidated Wool Products Pty Ltd (1991) 25 NSWLR 541

¶25-020; ¶25-030

Pselletes v Randwick City Council [2009] NSWCA 262 ¶54-250; ¶54-310 Pulver Cooper v Blackley Pty Ltd (1998) 108 LGERA 76

¶47-110

Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161

¶49-060

Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 All ER 625; [1958] 1 QB 554

¶3-080; ¶3110; ¶49210; ¶58030; ¶60020

Q Paragraph Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43

¶14-050; ¶66-070

Qiu v Minister for Immigration & Ethnic Affairs (1994) 55 FCR 439

¶26-060; ¶56-050

Quarries Ltd v Federal Commissioner of Taxation (1961) 106 CLR 310

¶4-050

Queensland Electricity Commission, Ex parte; R v Ludeke (1985) 159 CLR 178

¶22-050; ¶41-030

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615

¶71-070

Quin; A-G (NSW) v [1990] HLA 21; (1990) 170 CLR 1

¶26-070; ¶52-010; ¶52-080

Quinn O’Hanlon Architects Pty Ltd v Leichhardt

¶29-130

Municipal Council (1989) 68 LGRA 114

R Paragraph Radray Constructions Pty Ltd v Hornsby Shire Council ¶34-100 [2006] NSWLEC 155 Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205

¶49-180; ¶49-200; ¶49-290

Randwick Municipal Council v Crawley (1986) 60 LGRA 277

¶71-060

Randwick Municipal Council v Manousaki (1988) 66 LGRA 330

¶48-080

Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13

¶48-130; ¶56-050; ¶60-020; ¶60-030; ¶60-040; ¶60-050; ¶60-070

Randwick Municipal Council v Woodward (1983) 50 LGRA 55

¶70-010

Rao v Canterbury City Council [2000] NSWCCA 471

¶54-170; ¶54-180; ¶54-310

Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88

¶47-050

Redgrave, Ex parte; Re Bennett (1946) 46 SR (NSW) 122

¶22-050; ¶41-030

Reeson v Warringah Shire Council, NSWLEC No

¶34-130;

10160, 16 October 1990

¶35-080

Refugee Tribunal, Re; Ex parte Aala (2000) 204 CLR 82

¶22-080

Reinisch, Ex Parte (1971) 22 P & CR 1022

¶55-020

Remath Investments (No 6) Pty Ltd v Botany Bay Council (No 2), NSWLEC No 10649, 11 December 1996

¶57-070; ¶57-090; ¶57-100

Rendell v Release on Licence Board (1987) 10 NSWLR 499

¶52-050

Renouf, Ex Parte (1924) SR (NSW) 463

¶54-220; ¶54-230

Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc and Ors (2000) 48 NSWLR 548

¶49-190

Residents Against Improper Development Inc & Anor v ¶21-270; Chase Property Investments Pty Ltd (2006) 149 ¶21-280; LGERA 360; [2006] NSWCA 323 ¶21-290; ¶21-300; ¶21-340; ¶29-160; ¶30-020; ¶38-020; ¶46-020 Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17

¶25-030

Richard v Shoalhaven City Council [2002] NSWLEC 11

¶65-120

Richard Michael Steedman and Anne Steedman v Baulkham Hills Shire Council [1994] NSWLEC 94

¶69-100

Richmond v Minister for Urban Affairs and Planning [2000] NSWLEC 23

¶15-060; ¶62-040;

¶62-060 Richmond River Shire Council v Ramsey (1988) 66 LGRA 210

¶59-120

Rocca v Ryde Municipal Council (1961) 7 LGRA 1; (1961) 79 WN (NSW) 299

¶4-030; ¶54270; ¶54290; ¶54310; ¶57070

Rockdale Municipal Council v Clark (1982) 47 LGRA 159

¶21-170

Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279

¶62-050

Rockdale Municipal Council v Tandel Corp Pty Ltd (1975) 34 LGRA 196

¶59-020; ¶59-110

Rollo v Minister of Town and Country Planning [1948] 1 ALL ER 13

¶12-030; ¶12-050

Rose Bay Afloat Pty Ltd v Woollahra Council & Anor (2002) 126 LGERA 36

¶34-090

Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266

¶59-170; ¶59-270

Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1

¶15-060; ¶26-060; ¶70-010

Rosemount Estates Pty Ltd v Minister for Urban Affairs ¶26-060 and Planning (1996) 90 LGERA 1 Rosemount Estates Pty Ltd; Minister for Urban Affairs and Planning v (1996) 91 LGERA 31

¶14-030; ¶26-060; ¶48-160; ¶54-300; ¶62-020; ¶62-030;

¶62-060 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

¶21-150; ¶21-190; ¶21-200; ¶21-330; ¶68-020; ¶69-020; ¶69-120

Royal Motor Yacht Club v Sutherland Shire Council, NSWLEC, 26 June 1987)

¶34-130; ¶35-080

Royco Homes, Ex parte; R v London Borough of Hillingdon (1974) 2 All ER 643; [1974] QB 720

¶3-020; ¶3090

Rundle v Tweed Shire Council; A-G of New South Wales Intervening (1989) 68 LGRA 308

¶4-070

Russell v Brisbane City Council [1955] St R (Qd) 419

¶54-300

Russo v Burwood Municipal Council [1996] NSWCA 459

¶59-150; ¶59-270

Russo v Kogarah (1985) 86 LGRA 300

¶23-070

Russo & Ors v Burwood Municipal Council, Court of Appeal, 25 November 1996

¶58-050

Ryde Municipal Council v Macquarie University [1977] ¶4-070 1 NSWLR 304; (1977) 35 LGRA 267 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; [1970] 1 NSWR 277

¶22-080; ¶54-020; ¶54-310; ¶55-030; ¶55-040; ¶55-070; ¶55-080; ¶55-120; ¶55-130;

¶55-170; ¶58-090

S Paragraph S, Ex Parte; R v Medical Board of South Australia (1976) 14 SASR 360

¶52-050

SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351

¶29-050; ¶29-070; ¶29-110

SS Construction Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229; 10 LGRA 210

¶71-070

SZGUR; Minister for Immigration and Citizenship v [2011] HCA 1; 273 ALR 327

¶23-120

SZMDS; Minister for Immigration and Citizenship v [2010] HCA 16

¶23-100; ¶23-110; ¶23-120; ¶23-130; ¶24-190; ¶24-210; ¶38-040; ¶52-010; ¶52-090

St George Building Society v Manly Municipal Council (1981) 3 APA 370

¶58-040; ¶58-070

St Ives Bus Services Ltd v Ku-ring-gai Council, NSWLEC No 10368, 15 November 1995

¶49-020; ¶49-290

Satellite Group (Ultimo) Pty Ltd (The) v Sydney City Council

¶66-150

Save Blue Lagoon Beach Action Group Inc v Kelvest Pty Ltd (1993) 81 LGERA 144

¶22-040

Save Our Street Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30

¶52-080; ¶58-070

Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33

¶14-030; ¶26-070; ¶49-130

Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21

¶23-040; ¶23-080; ¶23-090; ¶23-130; ¶34-120; ¶41-090; ¶71-070; ¶71-090

Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [1999] LEC 251

¶15-060

Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74

¶23-060; ¶23-080; ¶23-100; ¶23-130; ¶24-190; ¶48-150; ¶49-290; ¶53-130

Scott v Wollongong City Council [1986] NSWLEC 85

¶22-080

Scott v Wollongong City Council (1992) 75 LGRA 112

¶48-140; ¶56-040; ¶56-050; ¶56-070; ¶56-080; ¶56-090; ¶57-070; ¶57-100; ¶58-010

Scott’s Provision Stores Pty Ltd v Sydney City Council ¶21-060; (1958) 3 LGRA 191 ¶21-080; ¶21-090; ¶21-270; ¶21-340 Scrap Realty Pty Ltd v Botany Bay City Council [2008] ¶66-210; NSWLEC 333 ¶66-220 Scurr v Brisbane City Council (1973) 133 CLR 242; (1973) 28 LGRA 50; [1973] HCA 39

¶12-030; ¶13-020; ¶13-030; ¶13-040; ¶13-060; ¶14-030; ¶14-040; ¶34-120; ¶34-170; ¶47-020; ¶47-070; ¶47-080; ¶47-090

Seaforth Services Pty Ltd v Byron Shire Council (No. 2) (1991) 782 LGRA 44

¶66-100

Sean Investments Pty Ltd, Ex Parte; R v Hunt (1979) 180 CLR 323

¶49-090; ¶71-070

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014

¶22-020; ¶52-080

Secretary of State for the Environment, R v; Ex parte Ostler [1977] QB 122

¶7-060

Secretary of State for the Home Department, R v; Ex parte Doody [1993] QB 157; [1994] 1 AC 531

¶48-160

Secretary of State for the Home Department, R v; Ex parte Brind [1991] 1 AC 696

¶26-060

Secretary of State for the Home Department,R v; Ex Parte Oladehinde [1991] 1 AC 254

¶53-110

Security Storage Pty Ltd v Leichhardt Municipal Council (1996) 93 LGERA 176

¶59-170; ¶64-040

Segal v Waverley Council [2005] NSWCA 310

¶53-060

Selby v Pennings (1999) 102 LGERA 253

¶62-020

Sericott Pty Ltd v Snowy River Shire Council (2000) 108 LGERA 66

¶55-120

7-Eleven Stores v Sydney City Council (2004) 138 LGERA 125

¶19-080

Sevenex Pty Ltd v Blue Mountains City Council [2011] ¶37-090 NSWCA 223 Seyffer v Shoalhaven City Council [2006] NSWLEC 564

¶31-050; ¶46-020; ¶54-180; ¶66-020

Shanahan v Strathfield Municipal Council (1973) 2 NSWLR 740

¶54-220; ¶54-230; ¶54-310

Shell Co of Australia v Leichhardt Municipal Council (1957) 2 LGRA 262

¶3-020; ¶3050; ¶3-100

Shell Co of Australia Ltd v Parramatta City Council [1972] 2 NSWLR 632; 27 LGRA 102

¶55-070

Shellharbour Municipal Council v Minister for Planning ¶15-030; and Environment (1985) 58 LGRA 186 ¶16-030; ¶16-060 Shellharbour Municipal Council v Rovilo Pty Ltd (1989) ¶35-070; 16 NSWLR 104; 68 LGRA 231 ¶35-090 Shire of Perth v O’Keefe [1964] HCA 37; (1964) 110 CLR 529; 10 LGRA 147

¶21-030; ¶21-100;

¶21-130; ¶21-150; ¶21-170; ¶21-200; ¶21-260; ¶21-310; ¶21-340; ¶68-050; ¶69-020; ¶69-050; ¶69-120 Shoalhaven City Council v Lovell (1996) 136 FLR 58

¶48-050; ¶49-130; ¶49-180; ¶49-270; ¶49-290; ¶51-040

Shore v Wilson (1842) 9 Cl & Fin 355; 8 ER 450

¶25-030

Signorelli Investments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 78

¶33-120

Singer v Statutory & Other Offices Remuneration Tribunal (1986) 5 NSWLR 646

¶52-050

Singh v The Commonwealth & Anor (2004) 222 CLR 322

¶25-070

Skyline Australia (Finances) Pty Ltd v Pluteus (No 301) Pty Ltd, 31 August 1990

¶55-080

Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86

¶13-050; ¶60-030

Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429

¶12-080

Slough Estates Ltd v Slough BC (No 2) (1968) 19 P & CR 326; [1969] 2 All ER 988; [1969] 2 CH 305; [1970]

¶54-110; ¶55-020;

2 All ER 216; [1971] AC 958

¶55-120

Smith v East Elloe Rural District Council [1956] AC 736

¶7-060; ¶62020; ¶62060

Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246

¶21-030

Smith v Wyong [2003] NSWCA 322

¶12-070; ¶13-060; ¶18-110; ¶18-150

Smith v Wyong Shire Council [No 3] (1984) 53 LGRA 170

¶65-040; ¶65-120

Smyth v Nambucca Shire Council [1999] NSWLEC 226

¶41-040

Sofi v Wollondilly Shire Council (1975) 31 LGRA 416

¶24-020; ¶41-020; ¶48-020; ¶49-040

Somerville v Dalby (1990) 69 LGRA 422

¶24-160; ¶47-050; ¶47-060; ¶47-070

Sosmo Trust Ltd v Secretary of State for the Environment [1983] JPL 806

¶49-220

South Australia v Tanner (1989) 166 CLR 161

¶26-060

South Sydney City Council v Morgan Williams, NSWLEC, 3 September 1991

¶4-090

South Sydney City Council v Paul Dainty Corp Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202

¶4-090; ¶4100

South Sydney Council; Minister for Local Government v (2002) 55 NSWLR 381

¶53-120

Southern Pacific Co v Olympian Dredging Co 260 US 205 (1922)

¶66-140

Sovmots Investments Ltd v Secretary of State for the Environment [1977] QB 411; [1977] QB 411; [1979] AC 144)

¶49-220

Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19

¶47-130; ¶49-160; ¶60-020

Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52

¶34-130; ¶35-080

Starray Pty Ltd v Sydney City Council [2002] NSWLEC ¶69-070 48 State Government Insurance Office v Crittenden (1966) 117 CLR 412

¶21-290

State of South Australia (State) v Tanner & Ors (1989) ¶3-110 166 CLR 161 Stebbins v Lismore City Council (1988) 64 LGRA 132; ¶55-060; [1988] NSWCA 146 ¶55-080; ¶55-090; ¶55-100; ¶55-110; ¶55-140; ¶55-170 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562; 80 LGERA 323

¶21-180; ¶21-190; ¶21-340; ¶69-020; ¶69-040; ¶69-080; ¶69-100;

¶69-120 Steedman v Baulkham Hills Shire Council, NSWLEC No 40183, 25 July 1991

¶21-180; ¶69-100

Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192

¶33-050; ¶33-060; ¶33-070; ¶33-080; ¶33-100

Stephen Bower Architects Ltd v Waverley Council [2003] NSWLEC 16

¶62-020

Stevens v Cleary (40229 of 1997; 24 July 1998)

¶4-050

Stockland (Constructors) Pty Ltd v Baulkham Hills ¶59-140; Shire Council [1996] NSWLEC 123 and NSWLEC 185 ¶59-170; ¶59-270 Stockland (Constructors) Pty Ltd v Shellharbour Council, 24 April 1996

¶58-050

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254

¶49-100; ¶49-110; ¶49-290; ¶53-040; ¶53-050

Stradbroke Island Association v Sandunes Pty Ltd and ¶55-120 Redland Shire Council (1998) 101 LGERA 161 Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319

¶29-120; ¶29-150; ¶29-160; ¶30-030

Stuart Bros Pty Ltd v Woollahra Municipal Council (1960) 6 LGRA 215

¶29-050

Sussex Caravan Parks Ltd v Richardson [1961] 1 All ER 731; [1961] 1 WLR 561

¶55-020

Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315

¶24-180

Swadling v Sutherland Shire Council (1994) 82 LGERA 431

¶62-020; ¶62-060; ¶66-060; ¶66-120; ¶66-220

Swan Hill Corp v Bradbury (1937) 56 CLR 746

¶3-040; ¶56050

Sweedman v Transport Accident Commission (2006) 224 ALR 625; [2006] HCA 8

¶8-030

Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106

¶14-020

Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724; 67 LGRA 181; 169 CLR 698

¶35-060

Sydney City Council v Greek Australian Finance Corp Pty Ltd (1974) 32 LGRA 32

¶60-010

Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414; (1984) 54 LGRA 217

¶14-050; ¶66-030; ¶66-070; ¶66-210; ¶66-220

Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300

¶35-130

Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186

¶14-030; ¶65-090; ¶65-120; ¶69-040; ¶69-120

Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404

¶22-080; ¶55-120;

¶69-030

T Paragraph TVW Enterprises v Duffy [No 2] (1985) 7 FCR 172

¶12-030; ¶12-050

TVW Enterprises Ltd v Duffy (No 3) [1985] FCA 382; (1985) 8 FCR 93

¶62-030

Tang v Minister for Immigration & Ethnic Affairs (1986) ¶52-050 67 ALR 177 Tannous v Canterbury Municipal Council (1984) 52 LGRA 308

¶54-120

Tanos (1958) 98 CLR

¶14-030

Taperell v Randwick City Council (2000) 108 LGERA 309

¶14-050

Tasker v Fullwood [1978] 1 NSWLR 20

¶12-050; ¶14-030; ¶34-120; ¶62-030

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516

¶22-080

Tasmanian Dam case (1983) 158 CLR 1

¶26-060

Taylor v Hornsby Shire Council (1990) 69 LGRA 281

¶22-040; ¶22-080; ¶24-140

Television Corp Ltd v Commonwealth (1963) 109 CLR ¶56-050 59 Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133

¶49-140; ¶49-240;

¶49-290; ¶52-080 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10; 25 WAR 484

¶58-080

Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR 231

¶33-020; ¶33-030; ¶33-040; ¶33-050

Teo; Minister for Immigration and Ethnic Affairs v (1995) 57 FCR 194

¶14-030; ¶22-050; ¶38-030

Teoh; Minister for Immigration and Ethnic Affairs v (1995) 183 CLR 273

¶48-160; ¶52-080

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

¶48-090; ¶49-060; ¶49-100; ¶49-130; ¶49-290

Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 ALL ER 636; [1995] 1 WLR 759

¶49-220; ¶51-020

Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 62 LGRA 346

¶49-060

Thames Water Authority v Elmbridge Borough Council ¶13-050 [1983] QB 570 Thomas v Pittwater Council [2003] NSWLEC 19

¶66-160

Tickner v Chapman (‘Tickner’) (1995) 57 FCR 451

¶53-120

Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees’ Union (1979) 42 FLR 331

¶13-060

Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1998] NSWLEC 19; (1998) 99 LGERA 345;

¶22-050; ¶22-070;

(1999) 102 LGERA 52; (1999) 46 NSWLR 55; [1999] NSWCA 8

¶22-080; ¶24-160; ¶24-180; ¶34-160; ¶34-170; ¶38-020; ¶38-030; ¶38-050; ¶41-030; ¶46-020; ¶62-050

Tipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253

¶66-150

Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85

¶55-110; ¶55-170

Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261

¶59-120; ¶59-270

Toohey, R v; Ex Parte Meneling Station Pty Ltd (1982) ¶71-070 158 CLR 327 Tooth & Co Ltd v Parramatta City Council (1955) 20 LGR 158; (1955) 97 CLR 492

¶3-040; ¶50010

Torquil Cameron v Nambucca Shire Council (1997) 95 ¶57-090; LGERA 268 ¶57-150 Tovedale Pty Ltd v Shoalhaven City Council; Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169

¶65-120; ¶65-140

Townsend & Anor v Evans Shire Council & Ors [2000] ¶54-230; NSWLEC 163 ¶54-240; ¶54-310 Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229

¶52-080

Transport Action Group Against Motorways v Roads and Traffic Authority [1999] NSWCA 196; 104 LGERA 133

¶71-090

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; (1999) 46 NSWLR 598; (1999) 104 LGERA 133

¶14-050; ¶48-140; ¶56-050; ¶56-070; ¶56-080; ¶57-100; ¶66-070; ¶66-220; ¶71-060

Trehy & Ingold v Gosford City Council (1990) 69 LGRA 295

¶54-300

Trehy & Ingold v Gosford City Council (1995) 87 LGERA 262

¶59-170

Trimboli v Penrith City Council (1981) 48 LGRA 323

¶62-050; ¶69-100

Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121

¶53-120

Trustees Executors of Agency Co Ltd v Reilly [1941] VLR 110

¶21-290

Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396

¶53-120

Tullamore Bowling & Citizens Club Ltd v Lander [1984] ¶25-030 2 NSWLR 32 Turner v General Motors (Australia) Pty Ltd [1929] HCA 22; (1929) 42 CLR 352

¶7-030

Tynan v Meharg and Newcastle City Council (No 2) (1998) 102 LGERA 119

¶33-070; ¶33-110; ¶33-120

U Paragraph ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190

¶48-170

Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174

¶40-110; ¶46-020

Ulmarra Council v Clarence River County Council (1998) 101 LGERA 374

¶4-050; ¶4100

Union of the Benefices of Whippingham and East Cowes, St James, Re; Derham v Church Commissioners for England [1954] AC 245

¶12-030

United Dominions Corp Pty Ltd v Woollahra Municipal Council [1973] 1 NSWLR 616; 27 LGRA 369

¶65-040

University of Sydney, Re; Ex parte Forster [1963] SR (NSW) 723

¶48-160

University of Sydney v South Sydney City Council (1998) 97 LGERA 186

¶21-190

Unsworth v Commissioner for Railways (1958) 101 CLR 73

¶21-290

Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147

¶34-090

V Paragraph VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297

¶41-050; ¶62-030; ¶62-060

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 ¶66-100; ¶66-160;

¶66-220 Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240

¶33-110; ¶66-130

Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209

¶70-010

Vamanda Pty Ltd v Townsville City Council; ¶59-170 Murrayfield Pty Ltd v Townsville City Council (1983) 51 LGRA 20 Vaniga Pty Ltd v South Sydney Council (1989) 74 LGRA 86

¶23-070

Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78; (1999) 101 LGERA 297

¶7-080; ¶7100; ¶7-110; ¶7-140; ¶12050; ¶14030; ¶14040; ¶14050; ¶18150; ¶47090

Vaughan-Taylor v David Mitchell-Melcann Pty Ltd and Minister for Minerals and Energy (1991) 25 NSWLR 580; 73 LGRA 366

¶69-050; ¶69-120

Videto & Anor v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167

¶15-060

Village McEvoy Pty Ltd (The) v Council of the City of Sydney (No 2) [2010] NSWLEC 17

¶48-170

Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512

¶68-090; ¶69-030

Vitality Care Pty Ltd v Director-General, Department of ¶61-040 Natural Resources [2006] NSWLEC 506 Vumbaca v Baulkham Hills Shire Council [1979] HCA

¶4-070; ¶69-

66; (1979) 141 CLR 614; (1979) 39 LGRA 309

010; ¶69040

W Paragraph Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177

¶9-050

Waite v Blacktown City Council [2004] NSWLEC 157

¶34-090

Walker v Minister for Planning [2007] NSWLEC 741

¶45-020; ¶57-130; ¶57-150; ¶67-080

Walker; Minister for Planning v [2008] NSWCA 224

¶57-130

Walker v North Sydney Council [2001] NSWLEC 211

¶49-070

Ward v Warringah Shire Council (1963) 10 LGRA 114

¶49-060

Warehouse Group (Australia) Pty Ltd (The) v Woolworths Ltd & Anor [2005] NSWCA 269

¶56-060; ¶56-090

Warlam Pty Lyd v Marrickville Council [2009] NSWLEC 23

¶69-020; ¶69-120

Warren v Coombes (1979) 142 CLR 531

¶21-170

Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206

¶21-160

Warringah Shire Council v Jackson (1970) 21 LGRA 204

¶4-040; ¶4100

Warringah Shire Council v KVM Investments Pty Ltd (1981) 45 LGRA 425

¶29-080

Warringah Shire Council v Raffles (1978) 38 LGRA 306

¶21-230

Warringah Shire Council v Sedevcic (1986) 57 LGRA 335

¶69-030

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 361

¶29-080; ¶49-180; ¶49-270; ¶69-030

Warringah Shire Council, In Re; Ex Parte Forssberg (1927) 27 SR (NSW) 200; (1927) 8 LGR 74

¶54-200; ¶54-210; ¶54-300; ¶54-310

Water Conservation and Irrigation Commission (NSW) ¶3-040; ¶49v Browning (1947) 74 CLR 492 180; ¶49270 Waters v Hurstville City Council (1991) 77 LGRA 11

¶64-040

Waverley Council v Hairis Architects [2002] NSWLEC 180

¶31-070; ¶54-180; ¶54-310; ¶66-020; ¶66-060; ¶66-220

Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188

¶65-040

Weal v Bathurst City Council [1999] NSWLEC 132

¶52-050

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

¶48-140; ¶48-160; ¶48-170; ¶49-290; ¶52-050; ¶52-080; ¶57-100; ¶57-150

Wechsler v Auburn Council (1997) 130 LGERA 134

¶60-030;

¶60-040; ¶60-050; ¶60-070; ¶62-040 Wehbe v Pittwater Council [2007] NSWLEC 827

¶21-030; ¶29-110; ¶30-030

Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201

¶59-170

Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

¶25-070; ¶58-070

Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36

¶62-020

Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

¶52-080; ¶58-070; ¶58-070

Westminster City Council v British Waterways Board [1984] 3 All ER 737; [1985] AC 676

¶49-210

Westminster City Council v Great Portland Estates Plc ¶3-110 [1985] AC 661 Westminster City Council, R v; Ex Parte Monahan ¶3-110; ¶49[1990] 1 QB 87; [1989] 2 All ER 74; [1989] 3 WLR 408 180; ¶49200; ¶49210; ¶49220 Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products [2007] HCA 50

¶55-130

Westpoint Corp Pty Ltd v Rockdale City Council [2000] ¶21-240; NSWLEC 148 ¶21-250 Westpoint Corp Pty Ltd v Rockdale City Council (2000) 109 LGERA 398

¶21-280

Wharf II Pty Ltd v Sydney City Council, NSWLEC, 15 February 1991

¶34-130; ¶35-080

Williams v Blue Mountains City Council [2001] NSWLEC 73

¶4-050; ¶4090; ¶4-100

Williams v Melbourne Corp (1933) 49 CLR 142

¶19-080

Williams v Minister for Planning [2009] NSWLEC 5

¶66-070

Willing v Hollobone (No 2) (1975) 34 LGRA 236

¶52-050

Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257

¶33-110; ¶33-120; ¶66-150

Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd (1974) 2 NSWLR 415

¶19-060; ¶34-090

Willoughby Municipal Council v Manchil Pty Ltd (1974) ¶19-060; 29 LGRA 303 ¶19-070 Wilson v Anderson & Ors (2002) 213 CLR 401

¶25-070

Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council [2001] NSWLEC 28

¶38-050; ¶46-020; ¶48-060; ¶49-290

Wilts United Dairies Ltd; A-G v (1922) 91 LJKB 897

¶59-020

Windsor Licensing Justices, R v; Ex Parte Hodes [1983] 1 WLR 685; [1983] 2 All ER 551

¶66-140

Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240

¶33-100; ¶33-110; ¶33-120; ¶66-150

Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97

¶54-040

Winn v Director-General of National Parks and Wildlife ¶54-050; [2001] NSWCA 17; 130 LGERA 508 ¶54-070; ¶54-310; ¶55-120; ¶55-170; ¶56-050; ¶56-070; ¶56-080; ¶56-090; ¶60-050 Winten Property Group v North Sydney Council [2001] ¶29-090; NSWLEC 46; (2001) 130 LGERA 79 ¶29-100; ¶29-110; ¶30-020 Wolgan Action Group Inc v Lithgow City Council [2001] NSWLEC 199

¶66-150; ¶66-220

Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51

¶55-070; ¶55-080; ¶55-130; ¶55-170; ¶65-070

Wolverhampton City Council; R (On the application of Sainsbury’s Supermarkets Ltd) v [2010] UKSC 20

¶49-220; ¶49-290

Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; 28 LGRA 410; (1973) HCA 65

¶21-150; ¶21-200; ¶68-070; ¶69-020; ¶69-060; ¶69-100; ¶69-120

Woollahra Municipal Council v Carr (1985) 62 LGRA 263

¶29-060; ¶29-080; ¶29-140; ¶29-150;

¶29-160; ¶30-030 Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710; 73 LGRA 379

¶21-130; ¶21-200; ¶21-340; ¶69-020

Woollahra Municipal Council v TAJJ Investments Pty Ltd (1992) 49 LGRA 123

¶54-120; ¶69-060; ¶69-120

Woolworths Ltd v Campbells Cash and Carry Pty Ltd, NSWCA, 19 September 1996; (1996) 92 LGERA 244

¶55-100; ¶55-110; ¶55-120

Woolworths Ltd v Dubbo City Council (1997) 99 LGRA ¶23-070 334 Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707

¶7-100; ¶22010; ¶22080; ¶22090; ¶24180; ¶38020; ¶46020; ¶52080

Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd & Anor [2003] NSWLEC 350

¶66-180

Woolworths Ltd v Wyong Shire Council [2005] NSWLEC 400

¶48-170

Woolworths Ltd & Ors v Bathurst City Council, NSWLEC, 24 September 1987

¶34-130; ¶35-110

Woolworths Ltd and Kenlinda v Bathurst City Council and Austcorp No 71 Pty Ltd (1987) 63 LGRA 55

¶7-060; ¶7080; ¶34130; ¶35040

Woolworths Properties Pty Ltd v Ku-ring-gai Municipal ¶59-020 Council (1964) 10 LGRA 177 Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38

¶22-080

Wright, Ex-parte; Re Concord Municipal Council (1925) 7 LGR 79

¶54-190; ¶54-310

Wu Shan Liang; Minister for Immigration and Ethnic Affairs v (1996) 185 CLR 259

¶14-030; ¶22-080

Wyong Shire Council v Associated Minerals Consolidated Ltd [1972] 1 NSWLR 114; (1972) 25 LGRA 305

¶2-050

Wyong Shire Council v Cohen [2004] NSWLEC 171

¶4-050

Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296

¶52-080

Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86

¶52-020; ¶52-090

Wyre Forest District Council v Secretary of State for the Environment [1990] 1 All ER 780

¶55-020; ¶55-170

X Paragraph X; A-G (NSW) v (2000) 49 NSWLR 653

¶49-060

Y Paragraph Yusuf; Minister for Immigration and Multicultural Affairs ¶58-080 v [2001] HCA 30; 206 CLR 323

Z Paragraph Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167

¶23-100; ¶23-130; ¶48-160; ¶48-170; ¶49-090; ¶49-110; ¶49-290; ¶52-080; ¶71-070

INDEX All references are to paragraph (¶) numbers.

A Administrative decisions judicial review — see Judicial review principles regarding administrative law

¶52-090

Advertised and specified developments advertised development, definition

¶39-020

case study

¶39-030

consideration and determination, requirement

¶39-090

effects of development consent

¶39-100

information requirements for application

¶39-050

interaction with consent authority

¶39-060

— other authorities

¶39-080

lodgement of DAs

¶39-040

notification

¶39-020; ¶39-070

rights of review and appeal

¶39-110

— third parties

¶39-120

subject matter — advertised development

¶39-020

— other notifiable development (s 79A)

¶39-020

Alternative source of power issue of relevance to development consents

¶62-030; ¶62-060

C Carltona principle

¶48-160; ¶53-140; ¶53-150

Challenges to validity and lawfulness amendment of LEP to rezone, case study

¶11-040; ¶11-050

conditions imposed on development consents — case studies

¶59-170; ¶59-200

conditions of planning permission — case study

¶3-080

development consent — case studies

¶7-060; ¶7-070; ¶7-100; ¶7-110; ¶7-120; ¶24-160; ¶24-170; ¶40-030; ¶56-050; ¶56-060; ¶56-070; ¶56-080

lawfulness of conditions in consents

¶60-050; ¶60-060

lawfulness of

¶3-020; ¶3-030; ¶3-110

EPI lawfulness of LEP privative clauses

¶7-080 ¶7-020; ¶7-040

— case study

¶7-050

provisions in Migration Act 1958

¶7-090

validity of conditions in consents

¶58-030; ¶58-100; ¶59-010

— case studies

¶58-040; ¶58-050; ¶58-060; ¶59-110; ¶59-120; ¶59-130; ¶59-150; ¶59-160; ¶59-180; ¶59-190; ¶59-210; ¶59-260; ¶60-010; ¶60-020; ¶60-030; ¶60-040

validity of DCP

¶19-060; ¶19-070; ¶19-080

validity of deferred commencement consent — case studies validity of development consent — case studies validity of development grant validity of EPI

¶57-070; ¶57-080; ¶57-100 ¶48-180

¶56-020; ¶56-030; ¶56-040; ¶65-130 ¶24-150

¶7-010; ¶7-160

validity of LEP, case studies

¶14-020; ¶14-050; ¶14-060; ¶15-030

validity of policy, case studies

¶59-090; ¶59-100

validity of SEPP, case studies

¶26-040; ¶26-050; ¶26-060; ¶26-070; ¶29-040

Characterisation of development ancillary development (sch 3, cl 37A)

¶21-300

case studies — ancillary and incidental vs separate and independent

¶21-140; ¶21-160; ¶21-180

— ancillary, incidental, subordinate

¶21-110

— application for declaration of permissibility

¶21-270

— categories not necessarily mutually exclusive

¶21-200

— categorisation, planning classification

¶21-250

— determining whether development is designated

¶21-290

— distinction between purpose and nature of use

¶21-230

— dual character

¶21-130

— fact and degree

¶21-140; ¶21-160; ¶21-170; ¶21-190; ¶21-280; ¶21-340

— importance of proper statutory interpretation

¶21-220; ¶21-240

— innominate purpose

¶21-120; ¶21-260

— “interpretive principle”

¶21-280

— issue of designation rather than permissibility of development

¶21-170

— key decision

¶21-100

— law on characterisation

¶21-050

— meaning of “purpose” of development

¶21-010; ¶21-020; ¶21-030

— not severable and separate purposes

¶21-090

— proper statutory interpretation

¶21-220

— “purpose” in existing use rights provisions

¶21-070

— purpose was separate and distinct use of land

¶21-060

— severable and separate use

¶21-080

— single proposed multipurpose building straddling two zones

¶21-190

— task of characterisation involves questions of fact and degree

¶21-160; ¶21-280

— test purely objective

¶21-200

— test under existing use provisions

¶21-150

designation of sewerage systems, amendment

¶21-300

dual purposes

¶21-330

existing use where development consent applies

¶21-310; ¶21-320

Land Use Table

¶21-040

principles

¶21-340

process, flowchart

¶21-340

“purpose” and “ancillary” confusion over terms

¶21-210

rationale for characterisation

¶21-040

terminology and standard descriptors

¶21-330

Commercial and retail premises definitions

¶25-130

Commissions of Inquiry functions

¶70010

Independent Hearing and Assessment Panels (IHAPs)

¶70040

joint regional planning panels (JRPPs)

¶70030

Planning Assessment Commission (PAC)

¶70020

— no appeals against decisions by Commission after public hearings (s 23F)

¶70020

— requirements of members

¶70020

principles relating to inquiries

¶70050

process of inquiry

¶70010

scope of power

¶70010

Community consultation

¶18-060; ¶18-120; ¶18-130; ¶18-150

Concurrence or consultation (DAs) consideration and determination, requirement

¶42-080

effects of development consent

¶42-090

information, requirement

¶42-040

interaction with consent authority

¶42-050

— other public authorities

¶42-070

lodgement of application

¶42-030

public exhibition/notification

¶42-060

rights of review and appeal

¶42-100

rights of review, third parties

¶42-110

subject matter

¶42-020

Conditions — see Development consents Consents — see Development consents Conservation incentives

¶4-030

Covenants in EPIs case studies consent of lessee for alteration

¶9-020; ¶9-030; ¶9-050

— case study

¶9-040

principles regarding suspension of regulatory instruments

¶9-060

suspension of private regulatory instruments

¶9-010

suspension of public regulatory instruments

¶9-010

Crown development applications consideration and determination provisions

¶43080

effects of development consent

¶43090

information requirements

¶43040

interaction with consent authority

¶43050

— other public authorities

¶43070

lodgement of application

¶43030

NSW Government agencies and statutory bodies representing the Crown (s 13A)

¶43010

prescribed provisions: s 88 (cl 226)

¶43010

public authority, definition

¶43010

public exhibition/notification

¶43060

rights of review and appeal

¶43100

rights of review, third parties

¶43110

subject matter

¶43020

D Deferred commencement consents

¶57-010; ¶57-020

case studies — challenge to validity

¶57-070; ¶57-080; ¶57-100

— date of lapsing

¶57-110

— final grant of consent

¶57-090

definition

¶57-010

effect of amending legislation

¶57-050; ¶57-060

principles

¶57-150

provisions

¶57-040

Definitions activity

¶71-040

advertised development

¶39-020

advertisement

¶24-050

approval

¶71-040

assessment guidelines

¶41-020

attached dwelling

¶25-100

building building height bulky goods premises

¶4-020 ¶25-080; ¶25-100 ¶25-130

business premises

¶25-130

commercial premises

¶25-130

consent authority

¶24-030

control

¶5-010

deemed environmental planning instrument

¶10-020

deferred development consent

¶57-010

determining authority

¶71-040

development

¶4-020; ¶24-050

dual occupancy

¶25-100

— attached

¶25-100

— detached

¶25-100

dwelling

¶25-100

dwelling house

¶25-100

ecologically sustainable development

¶5-010

environment

¶5-020

environmental planning instrument

¶10-020

extractive industry

¶25-140

extractive material

¶25-140

floor space ratio

¶25-080

food and drink premises

¶25-120

former planning instrument

¶10-020

general industry

¶25-110

gross floor area

¶25-080

heavy industry

¶25-110

industrial activity

¶25-110

industry

¶25-110

infrastructure

¶67-080

integrated development

¶40-020

interim development order

¶10-020

key threatening process

¶41-020

land

¶4-020

light industry

¶25-110

mining

¶25-140

modification

¶67-080

modify

¶66-070

offensive or hazardous industry

¶25-110

office premises

¶25-130

owner

¶34-040

planning

¶1-010; ¶1-020

prescribed scheme

¶10-020

proponent

¶67-080

public authority

¶43-010

“purpose” of development

¶21-010

refreshment room

¶25-120

residential accommodation

¶25-100

residential flat building

¶25-100

restaurant or café

¶25-120

retail premises

¶25-130

shop

¶25-130

site area take away food and drink premises temporary structure

¶25-080; ¶25-100 ¶25-120 ¶4-020

Designated development (DAs) case studies

¶38-030; ¶38-040; ¶38-050

consideration and determination

¶38-110

effects of development consent

¶38-120

information requirements

¶38-070

interaction with consent authority

¶38-080

— other public authorities

¶38-100

lodgement of application

¶38-060

public exhibition/notification

¶38-090

rights of review, third parties

¶38-140

rights of review and appeal

¶38-130

subject matter

¶38-020

— sewerage system and sewer mining systems (cl 29)

¶38-020; ¶38-050

Development characterisation — see Characterisation of development definitions — key purposes of development, definitions — principles regarding meaning

¶4-010; ¶4-020; ¶24-050 ¶25-090 ¶4-100

— “purpose” of development

¶21-010

elements — carrying out of a work

¶4-040

— case study

¶4-030

— demolition of a building/work

¶4-060

— erection of a building

¶4-050

— other matters in s 26

¶4-080

— temporary short-term development

¶4-090

— use of land

¶4-070

integrated — see Integrated developments purpose of development

¶21-010

— Model Provisions, genus/species model

¶25-090

— Standard Instrument

¶25-090

sewerage systems

¶21-300

zone objectives and Land Use Table (cl 2.3)

¶21-330

Development applications (DAs) — see also Standard development applications advertised and specified developments — see Advertised and specified developments amendment of DA — case studies case studies concurrence or consultation

¶34-080 ¶34-090; ¶34-100 ¶31-020; ¶31-030; ¶31-040; ¶31-050

— see Concurrence or consultation (DAs) consideration and determination

¶48-010

— application of savings provision, case study

¶48-020

— DA for Crown development

¶43-080

— DA for regional development

¶44-090

— DA requiring concurrence or consultation

¶42-080

— DA requiring SIS

¶41-130

— designated developments, requirements

¶38-110

— integrated developments

¶40-090

— relevance of s 79C, case study

¶48-050

— requirements

¶37-080

— under 1979 EPA

¶48-010

consideration and determination under s 79C

¶48-010; ¶49-010

— advertised developments

¶39-090

— breaches of planning law

¶49-280

— Carltona Principle

¶48-160

— case studies

¶48-050; ¶48-060; ¶48-070; ¶48-080; ¶48-090; ¶48-100; ¶48-110; ¶48-120; ¶48-130; ¶48-140; ¶48-150; ¶48-160

— consent of authority for DCP — DCP, case studies — Ecologically Sustainable Development (ESD) — ESD, case studies

¶49-080 ¶49-090; ¶49-100; ¶49-110 ¶49-120 ¶49-130; ¶49-140

— general duty

¶48-040

— general duty, leading case

¶48-110

— key principles

¶49-290

— legal issues

¶48-030

— precautionary principle

¶49-140

— principles regarding consideration and determination

¶49-290

— proper consideration of application

¶51-040

— proposed development, case studies

¶49-060; ¶49-070

— proposed EPI for consideration

¶49-040

— public interest, case studies

¶49-260; ¶49-270

— social and economic effects, case studies

¶49-150; ¶49-160; ¶49-170; ¶49-180; ¶49-190; ¶49-200; ¶49-210; ¶49-220; ¶49-230; ¶49-240; ¶49-250

— zoning of land, case studies

¶49-020; ¶49-030; ¶49-050

Crown developments — see Crown development

applications designated development — see Designated development (DAs) development assessment

¶31-010

Development Assessment Forum report

¶32-050

development consent applicable, case studies

¶31-060; ¶31-070

discretion in making determinations — see Development control Dobry Report

¶32-060

evaluation (s 79C)

¶48-010

expert reports

¶48-170

formal requirements — case studies

¶34-110; ¶34-120; ¶34-130; ¶34-140; ¶34-150; ¶34-160; ¶34-170; ¶34-180

— development application (cl 49)

¶34-030

— Environmental Planning and Assessment Regulation 2000 (EPA Regulation)

¶34-020

— principles

¶34-250

— s 78 development consent process

¶34-010

— s 78A application

¶34-010

integrated developments —

see Integrated developments land related to application — case studies owner consent — case studies

— definition of “owner” — principles planning schemes under Local Government Act 1919 principles relating to when an application is required

¶34-190 ¶34-200; ¶34-210 ¶35-010 ¶35-020; ¶35-030; ¶35-040; ¶35-050; ¶35-060; ¶35-070; ¶35-080; ¶35-090; ¶35-100; ¶35-110; ¶35-120; ¶35-130 ¶34-040; ¶35-010 ¶35-140 ¶32-010; ¶32-020 ¶31-080

public notification — see Public exhibition, involvement, notification (DAs) regional development — see Regional development (DAs) rejection of application

¶34-060

— case study

¶34-070

requirement for application itself — documentation (cl 2)

¶34-050

— how application is made (cl 50)

¶34-050

requirement for types of DAs

¶36-020

retrospective consent

¶33-010

— building approvals — case studies

¶33-140 ¶33-020; ¶33-030; ¶33-040; ¶33-050; ¶33-060; ¶33-070; ¶33-080; ¶33-090; ¶33-100; ¶33-110; ¶33-120; ¶33-130

— construction certificates

¶33-140

— principles

¶33-150

— wrong authority, case studies

¶34-220; ¶34-230

schemes for development — 1997 Amendments (Environmental Planning and Assessment Amendment Act 1997)

¶32-040

— 2005 Amendments

¶32-040

— 2006–2011 Amendments

¶32-040

— White Paper release

¶32-040

specified developments — see Advertised and specified developments staged developments — see Staged development applications types of DAs

¶36-010

— advertising requirement

¶46-010

— principles regarding types

¶46-020

— requirements

¶36-020

— rights of veto

¶46-010

under original EPA Act

¶32-030

who can make an application (s 49)

¶34-030

Development assessment under Pt 4 of EPA

¶31-010

— application (s 78A)

¶31-010

— consent needed for development (s 76A)

¶31-010

— consent not needed for development (s 76)

¶31-010

— prohibited development (s 76B)

¶31-010

Development Assessment Forum report

¶32-050

Development consents — see also Development applications (DAs) abandonment — case studies

additional approvals under other legislation

¶54-120 ¶54-130; ¶54-140; ¶54-150; ¶54-160; ¶54-170; ¶54-180; ¶54-190; ¶54-200; ¶54-210; ¶54-220; ¶54-230; ¶54-240; ¶54-250 ¶63-010

— case studies

¶63-020; ¶63-030

appeal and review rights

¶64-020; ¶64-050

application for an injunction to enforce compliance with conditions, case study case studies conditions (s 80A)

¶58-020

¶7-060; ¶7-070; ¶7-100; ¶7-110; ¶7120; ¶24-140; ¶24-160; ¶24-170

— ancillary aspects of development

¶58-010

— conditions expressed in terms of outcomes or objectives

¶58-010

— conditions generally

¶58-010

— modification or surrender of consents or existing use rights

¶58-010

— validity, case studies

¶58-030; ¶58-040; ¶58-050; ¶58-060

— validity of conditions

¶58-030; ¶58-100

correspondence or conduct by authority — case studies

¶54-260 ¶54-270; ¶54-280; ¶54-290; ¶54-300

deferred commencement consents — see Deferred commencement consents extrinisic materials — see Extrinsic materials in development consents former planning approval — amendment of Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205

¶61-010; ¶61-030

— principles regarding savings and transitional provisions

¶61-050

— protection and

¶61-020

exemptions — right or privilege not generally created

¶61-040

granting of consent (s 80)

¶54-010

invalid conditions, severance — challenge to validity, case studies

¶60-010; ¶60-020; ¶60-030; ¶60-040

— lawfulness of conditions, case studies

¶60-050; ¶60-060

— principles regarding consequences of invalidity of condition and severance

¶60-070

invalid consents — see Invalidity of consents issues relevant to status, lawfulness and challenges — alternative source of power — doctrine of functus officio

¶62-010; ¶62-060 ¶62-030 ¶62-010; ¶62-040

— estoppel

¶62-050

— key principles derived

¶62-060

— presumption of regularity

¶62-020

lapsing — application for a declaration, case study

¶65-040

— application for injunction, case study

¶65-020

— case studies

¶65-050; ¶65-060; ¶65-070; ¶65-080; ¶65-090; ¶65-100; ¶65-110; ¶65-120

— entitlement of applicant to do nothing

¶65-010

— key principles

¶65-140

merit of appeal

¶64-020

— case studies

¶64-030; ¶64-040

modification — see Modification of development consent Newbury test notification — case studies

¶58-030; ¶58-070 ¶54-020 ¶54-030; ¶54-040; ¶54-050; ¶54-060; ¶54-070; ¶54-080; ¶54-090; ¶54-100; ¶54-110

operation and effectiveness

¶64-010

principles regarding consequences of invalid conditions

¶60-070

principles regarding nature of consent

¶54-310

principles regarding operation of consent and appeal and review rights

¶64-050

principles regarding relationship between approvals under other legislation

¶63-050

relationship between

¶63-040

development consents and other legislation — additional approvals required

¶63-010; ¶63-050

— case studies

¶63-020; ¶63-030

— effect of statutes rights of review and merit appeal

¶63-040 ¶64-020; ¶64-050

staged development consents — see Staged development consents validity Wednesbury Test

¶7-040 ¶58-030; ¶58-070

Development contributions

¶59-010

adjustment to contribution rates, case study

¶59-190

breach of trust — case study

¶59-220

changes to infrastructure levies

¶59-070

legislation — further amendments and review

¶59-060

— impact of 1985 amendments

¶59-040

— original 1979 legislation, s 94

¶59-030

nature of contributions, case study

¶59-020

planning agreements

¶59-080

principles

¶59-270

“public amenities and public services”, case studies

¶59-130; ¶59-140

refunds, case studies

¶59-240; ¶59-250

Simpson Inquiry

¶59-050

special class of conditions

¶59-010

statutory obligations of council — case studies

¶59-230; ¶59-250

validity of contribution plan, case study validity, power to impose, case studies

¶59-210 ¶59-090; ¶59-100; ¶59-110; ¶59-120; ¶59-150; ¶59-160; ¶59-170; ¶59-180

Development control

¶32-040

arguments used by proponents and objectors

¶53-030

discretion in making DA determinations

¶53-010; ¶53-080

— case study

¶53-020

— disadvantages of providing broad discretion

¶53-090

Independent Commission Against Corruption (ICAC) reports

¶53-070

legal constraints in exercising discretion

¶53-100

— case study

¶53-110; ¶53-120; ¶53130; ¶53-140

principle of consistency in administrative decision-making — case study

¶53-060

principle regarding reliance upon staff to assist consent authority

¶53-150

Development Control Plans (DCPs) consideration in determining a DA

¶53-040

— case study

¶53-050

making of plan

¶19-030

— principles

¶19-090

referral from LEP, case study

¶16-030

statutory provisions

¶19-050

validity

¶19-060; ¶19-070; ¶19-080

Development standards — see also Standard Environmental Planning Policy No 1 (SEPP 1) background, “minimum requirements”

¶29010

Discussion papers on planning reform improving NSW Planning System

¶18040

“Plan First: — Review of Plan Making in NSW

¶17060

— proposed legislative change

¶17070

“Plan-making in NSW: Opportunities for the Future”

¶17010

— guiding principles and key outcomes

¶17050

— issues and weakness in coordination and strategic planning

¶17040

— objects for a review

¶17030

— strengths and weakness of existing system

¶17020

proposed recommendations

¶18050

regional strategies

¶28030

Dobry report

¶32-060

Doctrine of functus officio

¶62-040

E Ecologically Sustainable Development (ESD)

¶49-120

case study

¶49-140

English/UK planning law approach for proper consideration

¶51-030; ¶51-040

case study

¶51-020

comparison with NSW planning law

¶51-010

elements of planning system

¶1-040

types of schemes

¶1-040

Environment definitions

¶5-020

— principles

¶5-030

Environmental Planning and Assessment Act 1979 (EPA Act) amending Acts Environmental Planning and Assessment (Amendment) Act 1985 No 228

¶19-040; ¶59-040

Environmental Planning and Assessment Amendment Act 1997 No 152

¶57-050; ¶66-030; ¶67-030

Environmental Planning and Assessment Amendment Act 2006 No 8

¶16-090; ¶18-010

Environmental Planning and Assessment Amendment Act 2008 No 36

¶16-040; ¶18-060

Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 No 43

¶16-040; ¶19-040; ¶57-060

Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 No 90

¶65-030

desired developments

¶2-020

existing uses, EPA Act

¶69-010

— abandonment

¶69-060

— applications for approval to extend, expand, intensify, change, etc

¶69-070

— determining existing use

¶69-020

— enforcement of planning control, case study

¶69-100

— holding of development consent

¶69-080

— lawful commencement of use

¶69-110

— limitations on extension, expansion, alteration and intensification

¶69-050

— onus of proof

¶69-030

— principles relating to existing and other lawful uses

¶69-120

— requirement to be lawful

¶69-040

— retrospective analysis of planning law required

¶69-090

existing uses, pre-EPA Act

¶68-010

— abandonment of use

¶68-070

— balance between rights of landowners and public interest

¶68-020

— changes to intensity

¶68-080

— characterisation

¶68-050

— extent of area subject to existing use

¶68-060

— onus of proof

¶68-090

— pre-EPA Act legislation

¶68-040

— requirement for continuous use

¶68-070

— transitional circumstances included

¶68-030

“framework law”

¶2-010

legislation process, key landmarks

¶1-060

model provisions

¶16-010; ¶16-020

privative clauses

¶7-040

process, delegation and outcomes

¶2-030

relationship to other legislation

¶2-040; ¶2-

050 — objects (s 5)

¶2-040

— principles

¶2-060

s 117 ministerial directions

¶16-080; ¶16-090

s 149 certificates

¶20-020

Environmental Impact Assessment (EIA) background, introduction into Australia

¶71-010

contents, prescribed form and manner

¶71-070

definitions — activity in s 110

¶71-040

— approval

¶71-040

— determining authority

¶71-040

duty under s 111 to consider environmental impact

¶71-050

duty under s 112 not to carry out certain activities — case studies

¶71-060

principles

¶71-090

under Pt 4 of EPA Act

¶71-030

SSI under Pt 5.1 of EPA Act

¶71-080

under Pt 5 of EPA Act

¶71-040

within EPA Act, overview

¶71-020

Environmental Planning and Assessment Model Provisions 1980 — see Model provisions (1980) Environmental Planning and Assessment Regulation

¶34-

2000 (EPA Regulation)

020

Environmental Planning Instruments (EPI) advertised development case studies challenges to lawfulness and power challenges to validity

¶6-010 ¶3-040; ¶3-060; ¶3-070; ¶3-090; ¶3-100; ¶3-110 ¶3-020; ¶3-030 ¶7-010

consent of lessee for alteration — case study

¶9-040

covenants — see Covenants in EPIs definitions — deemed environmental planning instrument

¶10-020

— environmental planning instrument

¶10-020

— former planning instrument

¶10-020

— interim development order

¶10-020

— Part X11A

¶10-020

— prescribed scheme

¶10-020

designated development former instruments

¶6-010 ¶10-010; ¶10-030

identification of applicable EPIs

¶20-010

initial provisions and former instruments

¶10-010

issues of inconsistency between EPI — case studies

¶8-010 ¶8-020; ¶8-030; ¶8-040

— principles

¶8-050

legal issues

¶3-010

— contents of EPI (s 26)

¶3-010

— ladder of citizen participation

¶3-010

— making of EPI (s 24)

¶3-010

legislative power — principles

¶3-030; ¶4-010 ¶3-120

operation of Interpretation Act 1987

¶10-040

original EPA Act Model

¶10-050

principles of regulatory instruments

¶9-060

repeal of Miscellaneous (Planning) Repeal and Amendment Act 1979

¶10-040

repeal of Regional Environmental Plan provisions

¶10-060

requirement of s 149 certificates

¶20-020

review and amendment

¶19-010

— principles

¶19-020

sharing of responsibilities — State and local levels of government

¶10-050

suspension of private regulatory instruments

¶9-010

suspension of public regulatory instruments

¶9-010

types of development — commencement

¶6-020

— principles

¶6-030

— prohibitions

¶6-020

— zoning

¶6-020

Essential element approach Estoppel

¶29-170 ¶62-050; ¶62-060

Existing uses — see Environmental Planning and Assessment Act 1979 (EPA Act) Extrinsic materials in development consents construing contracts, case studies

¶55-010 ¶55-020–55-130

enforcement, civil or criminal “generally in accordance with”, case studies

¶55-140 ¶55-150; ¶55160

principles regarding incorporation of extrinsic materials

¶55-170

F Fauna Impact Statement (FIS)

¶41-090

Food and dining definitions

¶25-120

Foreshore building lines

¶29-130

I Independent Commission Against Corruption (ICAC) reports

¶53070

Independent Hearing and Assessment Panels (IHAPs)

¶70-040

Industry definitions

¶25-110

Integrated developments application requirements

¶40-010

approvals required

¶40-020

challenge to validity, case study

¶40-030

consideration and determination

¶40-090

definition

¶40-020

effect of development consent

¶40-100

— case study

¶40-110

information requirements

¶40-050

interaction with consent authority

¶40-060

— other public authorities

¶40-080

lodgement of DA

¶40-040

public notification

¶40-070

rights of review and appeal

¶40-120

— third parties

¶40-130

subject matter of DA

¶40-020

Invalidity of conditions in consents, severance case studies — challenge to the validity

¶60-010; ¶60-020; ¶60-030; ¶60-040

— lawfulness of conditions

¶60-050; ¶60-060

principles regarding consequences of invalidity of a condition and severance

¶60-070

Invalidity of consents case studies — challenge to a development consent — challenge to lawfulness — challenge to validity

¶56-060; ¶56-070; ¶56080 ¶56-050 ¶56-020; ¶56-030; ¶56040

failure to grant actual consent

¶56-010; ¶56-090

failure to grant consent to development application

¶56-010; ¶56-090

J Joint regional planning panels (JRPPs)

¶44-010; ¶44-100; ¶70030

Judicial review

¶7-030

delay or laches in commencing proceedings

¶7-030

key grounds

¶52-010

— absence of power

¶52-020

— absence of procedural fairness

¶52-070

— absence of proper consideration

¶52-030

— absence of reasonableness

¶52-080

— bias, prejudice or corruption

¶52-040

— improper purpose

¶52-060

— prejudice, predetermination or fetter on discretion

¶52-050

Kirk case

¶7-130

— key propositions

¶7-150

— significance, implications and issues

¶7-040; ¶7-140

prevention of judicial review

¶7-020

principles regarding application of administrative law

¶52-090

principles relating to decisions of consent authority

¶22-090

role of courts

¶22-010

— case studies

¶22-020; ¶22-030; ¶22-040; ¶22-050; ¶22-060; ¶22-070; ¶22-080

K Key purposes of development definitions

L Land Use Tables

¶25-090

development for dual purposes

¶21-330

discretion to grant consent (cl 12)

¶20-050

prohibited development within zone (cl 11)

¶20-050

variability

¶20-050

Landa, Paul new legislation, key underlying features

¶1-060; ¶1-070; ¶71-020

Local Environmental Plans (LEPs) — see also Local planning changes challenge to validity of amendment to rezone — case studies

¶11-040; ¶11-050

challenge to validity of plan — case studies

¶14-020; ¶14-050; ¶14060; ¶15-030; ¶15-050

consultation — amendment of provisions — case studies — concept of consultation

¶12-040 ¶12-050; ¶12-060; ¶12070; ¶12-080; ¶12-090 ¶12-020

council consideration — application to declare clause invalid, case study

¶14-030

— public submission of LEP draft

¶14-010

draft amendments — proceedings, case study drafting

¶15-060

— case study

¶12-030

— extent of changes

¶15-040

— new process

¶18-020

— preparation of plan, 1979 process

¶12-010

initiation of plan LEP Review Panel

¶11-010; ¶18-090 ¶18-020

objectives — see Objectives (LEPs) preparation of environmental study

¶11-020

— case study

¶11-030

public exhibition — amendment to draft LEP

¶14-040

— draft of LEP

¶13-010

— issues of exhibition, case studies

¶13-020; ¶13-030; ¶13040; ¶13-050

— requirements for exhibition, case study

¶13-060

— validity of amendment of LEP to rezone

¶13-070

role of directors and Ministers — extent of power

¶15-010

— powers of Minister, case study

¶15-020

special provisions — see Special provisions in LEPs standardisation of format — principal components Local planning changes

¶20-030

2008 amendments

¶18-060; ¶18-070

change of agenda and 2006 amendments

¶18-010

change of preparation process

¶18-070

community consultation consideration after consultation

¶18-120; ¶18-130 ¶18-130

Department of Planning — process in 2006 for drafting LEPs

¶18-020

Discussion papers — improving NSW Planning System

¶18-040

— proposed recommendations

¶18-050

gateway process Minister may make LEP

¶18-050; ¶18-060; ¶18-120; ¶18-150 ¶18-140

planning proposals — contents

¶18-110

— initiation of LEP

¶18-090

— relevant planning authority to prepare

¶18-100

principles regarding process of making LEPs

¶18-150

reduction in autonomy

¶18-030

responsibility for plan

¶18-080

M McAuslan, Patrick

key issues in planning law

¶1-080

Mining and extractive industries definitions

¶25-140

Ministerial directions guidance and planning principles under s 117

¶16-080

Model provisions (1980)

¶16-010

advantages and disadvantages

¶16-020

definitions

¶25-090

— attached, dual occupancy

¶25-100

— attached dwelling

¶25-100

— building height

¶25-080; ¶25-100

— bulky goods premises

¶25-130

— business premises

¶25-130

— commercial premises

¶25-130

— detached, dual occupancy

¶25-100

— dual occupancy

¶25-100

— dwelling

¶25-100

— dwelling house

¶25-100

— extractive industry

¶25-140

— extractive material

¶25-140

— floor space ratio

¶25-080

— food and drink premises

¶25-120

— general industry

¶25-110

— gross floor area

¶25-080; ¶25-100

— heavy industry

¶25-110

— industrial activity

¶25-110

— industry

¶25-110

— light industry

¶25-110

— mining

¶25-140

— offensive or hazardous industry

¶25-110

— office premises

¶25-130

— refreshment room

¶25-120

— residential accommodation

¶25-100

— residential flat building

¶25-100

— restaurant and café

¶25-120

— retail premises

¶25-130

— shop

¶25-130

— site area

¶25-080; ¶25-100

— take away food and drink premises

¶25-120

genus/species model

¶25-090

Modification of development consent application for modification — case studies

¶66-090; ¶66-100; ¶66-110; ¶66130; ¶66-140; ¶66-150; ¶66-160; ¶66-180; ¶66-210

consent granted — case studies

¶58-070; ¶58-080; ¶58-090

definition of “modify”

¶66-070

enactment of 1979 Environmental Planning and Assessment Act provisions in s 102

¶66-030

modification not radical transformation

¶66-070

modifying or altering existing consent, case study

¶66-060

power to modify consent — case studies

¶66-080; ¶66-120; ¶66-180; ¶66190; ¶66-200

— in current form of s 96

¶66-020

— in original 1979 Act

¶66-020

principles

¶66-220

provision for aspects of modifications

¶66-040

public notification of modification application

¶66-170

s 96, key issues

¶66-050

types (s 96) — minimal environmental impact

¶66-010

— minor error, description or miscalculation

¶66-010

— other

¶66-010

N

New South Wales (NSW) planning law, background Newbury test

¶1-050

¶58-030; ¶58-070

O Objectives (LEPs) development control table

¶23-020

objectives clauses, models

¶23-010

— consistency with zone objectives

¶23-020

— “no inconsistency” with zone objectives

¶23-020

— objective consistency with zone objectives

¶23-020

— subjective consistency with zone objectives

¶23-020

— zone objectives and development control table

¶23-020

— zone objectives and land use table “satisfaction”, case study zone objectives, case studies zone objectives, principles

¶23-010; ¶23-020 ¶23-120 ¶23-030; ¶23-040; ¶23-050; ¶23-060; ¶23-070; ¶23-080; ¶23-090; ¶23-100 ¶23-130

Objectors requirements

¶47-130

P “Plan First” proposals

¶17-060; ¶17-070

“Plan-making in NSW: Opportunities for the Future”

¶17-010

guiding principles and key outcomes

¶17-050

issues and weakness in coordination and strategic planning

¶17-040

objects for a review

¶17-030

strengths and weakness of existing system

¶17-020

Planning definitions

¶1-010; ¶1-020

implementation

¶1-030

Planning agreements

¶59-080

Planning approvals

¶61-010

Planning Assessment Commission (PAC)

¶70-020

“Planning for a Sustainable Future White Paper”

¶67-110

Planning principles

¶53-060

Planning review taskforces

¶17-080

Precautionary principle (DAs)

¶49-140

Presumption of regularity Privative clauses

¶62-020; ¶62-060 ¶7-020; ¶7-040

case studies

¶7-050

Public exhibition, involvement, notification (DAs) advertised and specified development

¶39-070

DA for Crown development

¶43-060

DA for regional development

¶44-070

DA requiring concurrence or consultation

¶42-060

DA requiring SIS

¶41-110

designated developments

¶38-090

integrated developments

¶40-070

objectors, requirements

¶47-130

principles

¶47-140

principles annunciated by courts, case studies

¶47-020; ¶47-030; ¶47-040; ¶47-050; ¶47060; ¶47-070; ¶47-080; ¶47-090; ¶47-100; ¶47-110; ¶47-120

requirement for notification under EPA legislation

¶37-060

staged developments

¶45-060

Public hearings

¶18-120

Public participation

¶47-130

Purpose of development definition key purposes of development, definitions

¶21-010; ¶25-090 ¶25-090

R Regional development (DAs) consideration and determination

¶44-090

— case study

¶44-100

effects of development consent

¶44-110

information requirements

¶44-050

interaction with consent authority

¶44-060

— other public authorities

¶44-080

joint regional planning panels (s 23G)

¶44-010

lodgement of application

¶44-040

public exhibition/notification

¶44-070

rights of appeal, third parties

¶44-130

rights of review and appeal

¶44-120

subject matter

¶44-030

Regional Environmental Plans (REPs)

¶28-010

abolishment of REPs

¶10-060

reform package

¶28-020

regional strategies

— State Strategic Planning Framework

¶28-030

repeal of provisions relating to REPs

¶28-040

Residential development definitions

¶25-100

S Sewerage systems amendment of regulations

¶21-300

designated developments

¶38-020

Simpson Inquiry

¶59-050

Social and economic effects

¶49-150

Special provisions in LEPs

¶24-010

additional heads of consideration in determination of application

¶24-200

commencement date

¶24-020

consent authority to seek consultation or concurrence

¶24-120

controls on development of land

¶24-040; ¶24130

— exemption on controls

¶24-080

definition of consent authority

¶24-030

definitions clause in LEP

¶24-020

development standards for carrying out work

¶24-100

documentation for application

¶24-110

land to which the plan applies

¶24-020

maps

¶24-020

merit of appeal, case study

¶24-190

permit for development

¶24-060; ¶24090

power to modify approval, case study

¶24-180

principles relating to special provisions

¶24-210

prohibition of development

¶24-070

repeals clause

¶24-020

savings and transitional provisions

¶24-020

Species Impact Statement (SIS) applications under s 78A

¶41-010; ¶41-020

consideration and determination

¶41-130

definitions

¶41-020

effects of development consent

¶41-140

Fauna Impact Statements (FISs), case study

¶41-090

information requirements — content of species impact statement (s 110)

¶41-080

— form of species impact statement (s 109)

¶41-080

interaction with consent authority

¶41-100

— other public authorities

¶41-120

lodgement of application

¶41-070

public exhibition/notification

¶41-110

rights of review and appeal

¶41-150

rights of review, third parties

¶41-160

significant effect on threatened species, populations or ecological communities, or their habitats (s 5A)

¶41-020

subject matter

¶41-020

— case studies

¶41-030; ¶41040; ¶41-050; ¶41-060

Specified and advertised development case study

¶39-030

consideration and determination, requirement

¶39-090

effects of development consent

¶39-100

information requirements for application

¶39-050

interaction with consent authority

¶39-060

— other authorities

¶39-080

lodgement of DAs

¶39-040

notification

¶39-020; ¶39-070

rights of review and appeal

¶39-110

— third parties

¶39-120

subject matter — advertised development

¶39-020

— other notifiable development (s 79A)

¶39-020

Staged development applications

¶45-010; ¶45-020; ¶57030

consideration and determination

¶45-080

effects of development consent (s 83B and s 83D)

¶45-090

information required

¶45-040

interaction with consent authority

¶45-050

— other public authorities

¶45-070

lodgement of application

¶45-030

public exhibition/notification

¶45-060

rights of review and appeal

¶45-100

rights of review, third parties

¶45-110

subject matter

¶45-020

Staged development consents — see also Deferred commencement consents “concept proposals for the development of a site”

¶57-120

— case studies

¶57-130

defined

¶45-090; ¶57-030

formulation of a planning principle — case study

¶57-140

principles

¶57-150

provisions in EPA Act

¶57-040

— impact of 1997 amendments

¶57-050

— impact of 2005 amendments

¶57-060

Staged repeal order program for existing EPIs Standard development applications — see also Development applications (DAs)

¶16-070

consideration and determination

¶37080

effects of development consent

¶37090

information requirements

¶37040

interaction with consent authority

¶37050

lodgement of application

¶37030

public exhibition/notification

¶37060

rights of review and appeal

¶37100

rights of review, third parties

¶37110

subject matter

¶37020

Standard Environmental Planning Policy No 1 (SEPP 1) application of development standards

¶29-020

background of policy

¶29-010

becoming less applicable

¶30-020

development standards, case studies — foreshore building lines

¶29-050; ¶29-060; ¶29-070; ¶29-080; ¶29-090; ¶29-100; ¶29-110; ¶29-120; ¶29-140; ¶29-150; ¶29-160 ¶29-130

(cl 22) key features

¶29-030

not applicable to LEPs, exceptions to development standards (cl 4.6)

¶30-010

principles relating to development standards

¶30-030

validity, case study

¶29-040

zoning function (essential element approach)

¶29-170

Standard instrument

¶16-050

benefits and disadvantages

¶16-060

definitions — attached, dual occupancy

¶25-100

— attached dwelling

¶25-100

— building height

¶25-080; ¶25-100

— bulky goods premises

¶25-130

— business premises

¶25-130

— commercial premises

¶25-130

— detached, dual occupancy

¶25-100

— dual occupancy

¶25-100

— dwelling

¶25-100

— dwelling house

¶25-100

— extractive industry

¶25-140

— extractive material

¶25-140

— floor space ratio

¶25-080

— food and drink premises

¶25-120

— general industry

¶25-110

— gross floor area

¶25-080; ¶25-100

— heavy industry

¶25-110

— industrial activity

¶25-110

— industry

¶25-110

— light industry

¶25-110

— mining

¶25-140

— office premises

¶25-130

— residential accommodation

¶25-100

— residential flat building

¶25-100

— restaurant and café

¶25-120

— retail premises

¶25-130

— site area

¶25-080; ¶25-100

— take away food and drink premises

¶25-120

development for dual purposes

¶21-330

hierarchy of purposes of development

¶25-090

State Environmental Planning Policies (SEPPs) current provisions

¶26020

environmental planning instruments

¶26010

list of SEPPs made

¶27010

making SEPPs — consultation requirements (s 38)

¶26010

— Governor may make SEPPs (s 37)

¶26010

— power to make a policy

¶26030

principles in relation to SEPPs

¶26080

SEPPs of general relevance or frequently considered

¶27020

State Environmental Planning Policy (Major Development) 2005

¶67090

State Environmental Planning Policy (State and Regional Development) 2011

¶67090

strategic planning documents

¶28050

State significant development (SSD) — see also State significant infrastructure (SSI) application of SSD provisions

¶67-060

applications, processing

¶67-070

background

¶67-010

consolidation with SEPPs

¶67-040

DA process following 1997 amendments

¶67-030

intervention of State government — special legislation overriding planning legislation

¶67-120

Ministerial power, issues

¶67-020

Part 3A of EPA Act

¶67-050; ¶67-090

principles concerning SSD and SSI

¶67-130

UK Government — approvals for major infrastructure

¶67-100

— “Planning for a Sustainable Future White Paper”

¶67-110

State significant infrastructure (SSI) background

¶67-010

definitions — infrastructure

¶67-080

— modification

¶67-080

— proponent

¶67-080

Division 4.1 of Pt 4 of EPA Act

¶67-080

Part 5.1 of EPA Act

¶67-080

principles concerning SSD and SSI

¶67-130

State Strategic Planning Framework

¶28-030

Statutory interpretation

¶25-010

case studies

¶25-020; ¶25-030; ¶25-040; ¶25-050; ¶25-060; ¶25-070

church, case study

¶25-020

commercial and retail premises definitions

¶25-130

determining the correct definition

¶25-040

food and dining definitions

¶25-120

goods, case study

¶25-030

industry definitions

¶25-110

Interpretation Act 1987

¶10-040

mining and extractive industries definitions

¶25-140

principal definitions — Model Provisions

¶25-080

— Standard Instrument

¶25-080

residential development definitions

¶25-100

rules

¶25-010

T Town planning case study Transport projects

¶3-050 ¶67-100

U UK planning law approach for proper consideration

¶51-030; ¶51-040

approval pathways for major infrastructure

¶67-100

case study

¶51-020

comparison with NSW planning law

¶51-010

elements of planning system

¶1-040

“Planning for a Sustainable Future”, White paper

¶67-110

types of schemes

¶1-040

V Validity — see Challenges to validity and lawfulness

W Wednesbury principle

¶23-110; ¶58-070

White Papers Plan First

¶17-060

“Planning for a Sustainable Future White Paper” (UK)

¶67-110

Writ of mandate (Mandamus) consent authority

¶50-010

principle

¶50-020

Z Zoning system and objectives case studies

¶20-040 ¶23-030; ¶23-040; ¶23-050; ¶23-060; ¶23-070; ¶23-080; ¶23-090; ¶23-100

model objectives clauses

¶23-010

principles

¶23-130

types of zones

¶20-040