Al Oshlack on behalf of the Lismore Greens v Lismore City Council (25 September 1998) - [1998] NSWLEC 1

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: AL OSHLACK ON BEHALF OF THE LISMORE GREENS v. LISMORE CITY COUNCIL (25 September 1998) [1998] NSWLEC 1

PARTIES: Applicant AL OSHLACK ON BEHALF OF THE LISMORE GREENS, First Respondent LISMORE CITY COUNCIL, Second Respondent LISMORE DISTRICT SPORTS ASSOCIATION

FILE NUMBER(S): 40181 of 1995; 40276 of 1997; 40003 of 1998 of 1998

CORAM: Sheahan J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ("EPAA")
Local Government Act 1993 ("LGA")
Land And Environment Court Act 1979 ("LECA")
Crown Lands Act 1989
Lismore Local Environmental Plan 1992

CASES CITED: Parramatta City Council v Pestell (1972) 128 CLR 305 ("Pestell"), ;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, ;
Friends of Pryor Park Inc v Ryde City Council & Anor (1996) 91 LGERA 302 ("Pryor Park");
Sommerville v Dalby (1990) 69 LGRA 422 ;
Parramatta City Council v Hale (1983) 47 LGRA 319 ("Hale");
Bentham v Kiama Municipal Council (1986) 59 LGRA 94;
Kioa v West (1985) 159 CLR 550("Kioa");
Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88;
Mackinnon v Henry & Anor, unreported, Pearlman J, 40100/96, 12 March 1997;
Seaton v Mosman Municipal Council (1996) 93 LGERA 1 ("Seaton");
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135;
Oshlack v Richmond River Council (1997) 96 LGERA 173;
North Cronulla Precinct Committee Inc v Sutherland Shire Council (40098 of 1997, 29 July 1998)

DATES OF HEARING: 9, 10, 11, 12 June 1998

DATE OF JUDGMENT:
09/25/1998

LEGAL REPRESENTATIVES:
N/A
First Respondent Mr A Pickles, Phillips Fox
Second Respondent N/A

JUDGMENT:

CONTENTS

A. INTRODUCTION TO ALL THREE PROCEEDINGS 1

B. BACKGROUND AND CHRONOLOGY OF RELEVANT EVENTS 4

C. THE ISSUES NOW BEFORE THE COURT 9

D. THE TRUE AMBIT OF THE APPLICANT’S CHALLENGES 10

E. PRINCIPLES AND LIMITS OF JUDICIAL REVIEW 11

F. COUNCIL’S LEGAL OBLIGATIONS 14

(i) Plan of Management 14

(ii) Development Consents 16

(iii) Procedural Fairness 18

G. THE GROUNDS OF THE APPLICANT’S CHALLENGES 20

(a) General comments 20

(b) The Challenges to the Plan of Management 22

No.1 Breach of LGA s36(3)(a) - identification of the category of the land 22

No.2 Breach of LGA s36(3)(b) - identification of objectives and performance targets 24

No.3 Breach of LGA s36(3)(c) - identification of the means by which the Council proposes to achieve the plan’s objectives and performance targets 29

No.4 Breach of LGA s36(3)(d) - identification of the manner in which the Council proposes to assess its performance with respect to the plan’s objectives and performance targets 31

No.5 Breach of LGA s35 - community land to be used and managed in accordance with any law regulating the use of the land 32

No.6 Breach of LGA s38(4) - failure to exhibit draft plan together with other matters to better enable the plan to be understood 33

No.7 Breach of LGA s40 - Failure to consider submissions 34

No.8 Carparking as an issue 35

No.9 Procedural fairness 36

9.1 Notification 36

9.2 Bias 38

Conclusions re (b) Challenges to the Plan of Management 39

(c) Challenge to Development Consent 97/309 - Crozier Oval 40

(d) Challenge to Development Consent 97/371 - Blair Oval 42

H. CONCLUSION AND ORDERS 43

IN THE LAND AND Matter Nos: 40181/95,

ENVIRONMENT COURT 40276/97 and 40003/98

OF NEW SOUTH WALES Coram: Sheahan J

25 September 1998

No.40181 of 1995

AL OSHLACK ON BEHALF OF THE LISMORE GREENS

Applicant

LISMORE CITY COUNCIL

First Respondent

LISMORE DISTRICT SPORTS ASSOCIATION

Second Respondent

No.40276 of 1997

FRIENDS OF LISMORE PARK INC

Applicant

LISMORE CITY COUNCIL

Respondent

No.40003 of 1998

FRIENDS OF LISMORE PARK INC

Applicant

LISMORE CITY COUNCIL

First Respondent

GEOLINK GROUP PTY LIMITED

Second Respondent

JUDGMENT

A. INTRODUCTION TO ALL THREE PROCEEDINGS

1. This judgment deals principally with the substantive issues raised in matter No.40003 of 1998 (“ 40003 ”) over the four day hearing 9-12 June 1998.

2. However, the three separate proceedings are related to one another as all three concern Lismore City Council’s management and operation of one of Lismore’s main parks, “Lismore Park”.

3. Matter No.40276 of 1997 (“ 40276 ”) was listed for mention before me on 12 June 1998, which was the last day allocated for the hearing of 40003.

4. The relationship between 40276 and 40003 is that 40276 involves a challenge to an earlier version of the Plan of Management for Lismore Park, which will be statutorily revoked, by the operation of LGA s 42, if the later version of the Plan of Management, which is central to the proceedings 40003, is upheld in those proceedings.

5. Matter No.40181 of 1995 (“ 40181 ”) was not strictly before the Court during the hearing 9-12 June 1998. However, Mr McEwen, Counsel for the Council, during his closing submissions in 40003, made clear that 40181 remained “current” only because 40003 had not been determined. (See interlocutory judgment of Lloyd J, dated 23 February 1998, annexed to this judgment as Annexure “B”).

6. Mr McEwen made an application instanter on 12 June 1998 for 40181 to be brought before me for the sole purpose of my releasing the respondent from those undertakings given by it in those proceedings, which are still extant, in the event of my refusing the relief sought by the applicant in 40003.

7. Mr Bellew, the representative of the applicant, did not oppose that application, and, after considering all the evidence before me, I have decided to grant it, for the limited purposes, and on the conditions precedent, to which I have just referred. (LECA s 22).

8. The history of 40181 will be dealt with, in a little more detail, later in this judgment (see paras 21ff), but essentially 40181 is a challenge by the “Lismore Greens” to (earlier) Council approvals in respect of Lismore Park.

Consent orders and relevant undertakings in 40181 will be fulfilled or superseded by a successful defence of 40003 by the Council.

9. The second respondent in 40003, Geolink Group Pty Limited (“Geolink”), is a consultant to Council on some matters relating to Lismore Park, and has entered a submitting appearance in 40003, save as to costs, and was not represented at the hearing.

10. The two “active” parties in 40003, namely Friends of Lismore Park Inc (“the applicant”) and the Council, agreed that 40276 would have little utility if the applicant failed in 40003. Mr McEwen submits that 40276 should be referred to the Registrar on the delivery of this judgment. If the applicant succeeds in 40003, 40276 should probably then be listed for hearing; if the applicant fails in 40003, the respondent will probably move for 40276 to be dismissed.

11. At the conclusion of the June hearing I reserved my decision in 40003, and stood 40276 over to a date to be fixed following the delivery of judgment in 40003.

12. In 40003 the applicant challenges the validity of certain particular actions taken by the Council in respect of Lismore Park.

13. Specifically the applicant seeks judicial review of:

· the Plan of Management for Lismore Park, adopted by Council on 9 December 1997 (“the December Plan”);

· a development consent (“DC”) granted by Council to Lismore District Sports Association (“LDSA”) on 16 December 1997, for the erection of a 900 seat spectator grandstand and perimeter fencing on Crozier Oval; and

· a DC granted to the Lismore Workers’ Soccer Club Inc on 29 January 1998, for the construction of “training lights” on Blair Oval, within Lismore Park.

B. BACKGROUND AND CHRONOLOGY OF RELEVANT EVENTS

14. Lismore Park is a large park (approximately 32 ha), comprising predominantly, sporting fields. It is located adjacent to the centre of the city area of Lismore, and it is made up of three distinct “stages” (see Map 1 attached to this judgment as Annexure “A” ).

15. “Stage 1”, the original section of Lismore Park, was first dedicated and proclaimed a crown reserve for public recreation in 1887 .

16. The December 1997 Plan of Management says:

“After receiving a delegation from the Lismore District Sports Association regarding provision of additional land for recreational purposes, Council resolved on March 18, 1946 to resume several parcels of land in the vicinity of the current Roder Oval (stage 2), Richards Oval and the netball courts (stage 3). The original crown reserve was vested in Council on July 30, 1976”.

17. The nub of the dispute that has resulted in all these proceedings appears to be Council’s proposal to change the use of Crozier Oval , one of the fields within stage 1 of the Park. Crozier Oval has a history of use for structured sports, including cricket, but, until now, has not been fenced or enclosed in any way. Council intends to convert Crozier Oval into an enclosed rectangular football field/stadium.

18. Towards this end, Council resolved on 21 February 1995 to negotiate the purchase of a grandstand from the “Gabba” cricket ground in Queensland. The stand was subsequently purchased and its relocation commenced.

19. On 10 July 1995 , the LDSA lodged Development Application (“DA”) 95/268 “for the erection of a 900 seat spectator grandstand and associated perimeter fencing being of 2.5 metres maximum height” on Crozier Oval. DA 95/268 was approved on 18 August 1995 , but a subsequent EPAA s102 amendment resulted in the development consent being reissued without the fence component on 30 August 1995 .

20. The relevant building approval (“BA”) 95/415 for the grandstand was issued on 6 September 1995 . Thereafter, there were some works and the placement of certain structures on Crozier Oval.

21. The “Lismore Greens” commenced matter 40181 on 5 October 1995 . Both Council and the LDSA are respondents and the Greens seek declarations that DC95/268 and BA95/415 are null and void. They also seek an order restraining the LDSA from carrying out further work on Crozier Oval unless and until prior consent has been granted by Council.

22. On 25 January 1996 , Stein J made orders in 40181 along the lines sought by the Greens, by consent. The orders also required Council to demolish and remove the unauthorised work and structures within 6 months, but liberty was granted to apply to be released from the undertaking in the event of a grant of development consent and building approval.

23. An integral part of the legislative framework associated with the proposed development was the requirement for Council to have in place a “Plan of Management” to regulate the use and management of Lismore Park.

24. Part 2, Chapter 6 of the LGA requires all land vested in a council (except a road or land to which the Crown Lands Act 1989 applies) to be classified as either “community” or “operational”, and requires the preparation of a Plan of Management to regulate the use and management of community land. Most of the land constituting Lismore Park was classified as community land.

25. On 28 November 1995 , Council had adopted a generic Plan of Management covering all community land in the local government area, including Lismore Park. The rationale behind the 6 month extension of the demolition order on 25 January 1996 appears to have been to enable Council to prepare a Plan of Management that would apply specifically to Lismore Park, the generic plan having been regarded as inadequate.

26. To this end, a process of community consultation for a Lismore Park Plan of Management was carried out between May and July 1996 and a draft Plan of Management was exhibited on 21 August 1996 .

27. On 28 June 1996 Pearlman J made further orders by consent in 40181, extending the period of the undertaking to 31 January 1997 , and ordering that the respondents withdraw a new development application, DA96/146. The Court noted a further undertaking that the respondents would not lodge a further development application in respect of “the site known as Crozier Oval, 170 Magellan Street Lismore” pending adoption by Council of a Plan of Management in respect of Lismore Park, pursuant to the LGA.

28. On 29 October 1996 , following the receipt of submissions on the draft Plan of Management, a detailed report to Council resulted in a resolution to adopt the Plan of Management, to abort the proposal to construct a football stadium, to demolish the grandstand, and to conduct a thorough investigation of alternative locations.

29. However, a notice of recission was given at that meeting and it succeeded at a subsequent Council meeting on 13 November 1996 , where Council resolved that the draft Plan of Management be referred to the General Manager for further consideration and report.

30. The General Manager reported to Council on 10 December 1996 and Council resolved, inter alia, that a new Plan of Management be prepared and that a Steering Committee oversee the preparation of that plan.

31. On 31 January 1997 , Stein J varied the orders in 40181 to extend the time for demolition to 31 July 1997 .

32. The Steering Committee met during February-April 1997, and on 5 May 1997 the second draft Plan of Management was placed on exhibition.

33. On 8 July 1997 , Council resolved to adopt the draft plan (“the July Plan”), and resolved to prepare and lodge a development application for a grandstand for 900 persons, a security fence, and other related facilities.

34. On 1 August 1997 , Talbot J extended the 40181 time for demolition to 1 February 1998 .

35. A third draft version of the Plan of Management for Lismore Park was placed on exhibition on 22 September 1997 . It was adopted by Council on 9 December 1997 and had the effect of revoking the July Plan. It is this “December Plan” which is challenged by the applicant in 40003.

36. 40276 had been commenced on 5 November 1997 to obtain a declaration that the July Plan was null and void, on the grounds of inadequacy.

37. DA 97/309 , for the construction of the grandstand at Crozier Oval, was lodged by Geolink on 20 October 1997 . The application was “independently assessed by external consultants”, and Council granted consent on 16 December 1997 (to operate from 9 January 1998). Relevant building approval was subsequently granted for the grandstand (to operate from 27 January 1998).

38. DA 97/371 , which relates to the construction of “training lights” on Blair Oval (the area of Lismore Park immediately to the east of Crozier Oval), was lodged by the Lismore Workers’ Soccer Club Inc on 17 December 1997 and approved on 29 January 1998 .

39. These two development consents, DC 97/309 and DC 97/371, along with the December Plan, are challenged by the applicant in 40003.

40. 40003 was commenced on 14 January 1998 .

41. On 23 February 1998 , Lloyd J dealt with interlocutory proceedings in which the respondents sought to be released from the undertakings in 40181 and to have 40276 dismissed, on the basis that the validity of the July Plan was no longer relevant because of the adoption of the December Plan. Lloyd

J took the view that, as the orders and undertakings in 40181 were directly relevant to the proceedings in 40003, the question of releasing any undertakings should await the outcome of 40003. His Honour also declined to dismiss 40276, on the basis that those related proceedings should also await the outcome of 40003.

42. A copy of Lloyd J’s judgment on these issues is Annexure “B” to this judgment.

C. THE ISSUES NOW BEFORE THE COURT

43. In summary, therefore, all three matters are before the Court as it deals with the following three challenges mounted in 40003 , as the principal focus of this judgment:

· The December Plan as adopted by Council on 9 December 1997;

· DC 97/309 as granted to Geolink on 16 December 1997, for the erection of a grandstand at Crozier Oval;

· DC 97/371 as granted to the Soccer Club on 29 January 1998, for the construction of “training lights” on Blair Oval.

44. In 40003 the applicant seeks declarations that these three instruments are null and void, and appropriate relief by way of restraining and demolition orders, and costs.

45. Council resists those declarations and orders, and asks the Court, in the event that the applicant fails in 40003, to discharge the undertakings Council has given in 40181 and to make orders to facilitate an early conclusion to 40276 .

D. THE TRUE AMBIT OF THE APPLICANT’S CHALLENGES

46. There was some time spent during the early stages of the hearing identifying exactly the ambit of the applicant’s claim, since, as the applicant’s representative Mr Bellew acknowledged, not all of the points set out in his lengthy and amended “points of claim” documents were relevant to the proceedings before the court.

47. Bellew conceded that the following Amended Points of Claim (“APC”)would not be pursued: APC numbers 27, 35, 41, 43, 47, 48, 49, 51, 52, 53, 54, 55, 58, 59 and 60.

48. The following particulars of the APC were also not pursued by Bellew:

· Pars (b), (c), (d), (l), (m), (n), (r), (t) and (u) of APC 30(i)

· Pars (b) and (d) of APC 30(ii)

· Pars (ii), (iii), (iv), (v), (vi), part (vii), (viii), (ix), (xi), (xiii) and (xiv) of APC 31

· Pars (iii), (iv), (v) of APC 32

· Pars (iv), (v), (vi), (viii), (x), part (xii), (xiii), (xiv), (xvi), (xii), (xiii), (xix), (xxi), (xxiii), (xxvii), (xxviii), (xxix), (xxx), (xxxii), (xxxiii), (xxxiv), (xxxv), (xxxvi), (xxxviii), (xxxx), (xxxxi), (xxxxiv), (xxxxv), (xxxxvi), (xxxxvii), (xxxxviii) of APC 33

· Pars (v) and (vii) of APC 34

· Pars (ii) and (viii) of APC 36

· Pars (i) of APC 42

· Pars (viii), (xii), (xiv)(d), (xix), (xx), (xxi) of APC 46

· Pars (i) of APC 46A

49. The remainder of the Amended Points of Claim were pressed, and these allegations challenged, in various ways, the validity of the three instruments at the centre of 40003.

50. It is appropriate at this point in the judgment to set out briefly the principles behind, and the limits which apply to, the Court’s capacity to review a Council’s decisions to adopt or approve the instruments challenged in such proceedings.

E. PRINCIPLES AND LIMITS OF JUDICIAL REVIEW

51. This Court does not have an unlimited ability in Class 4 of its jurisdiction to intervene in decisions made by authorities such as local councils. It can overturn only those decisions that are wrong in law, not merely those decisions which the Court, if it had been in the position of the Council, would not have made.

52. The principle of the “separation of powers” invests in elected representatives a certain degree of exclusive decision-making power, which cannot, generally, be interfered with by other arms of the government, such as the judiciary. Authorities such as local councils are invested by the legislature with various such powers and discretions.

53. Any reasonable and/or reasonably-made decisions of an elected body, being vicarious expressions of the wishes of the people, should not generally be able to be reviewed and possibly overturned by non-elected officials. Rather, the accountability of the elected representatives is to the people, by way of a democratic election.

54. This is subject, of course, to certain important qualifications. For example, a decision by a local authority must usually be made by following a proper procedure and the authority must have the actual power to make the decision.

55. This principle of judicial review has been discussed many times by this and other courts.

56. In Parramatta City Council v Pestell (1972) 128 CLR 305 (“ Pestell ”), the question before the High Court was the validity of a local council decision to levy a local rate for the executing of works which, in the opinion of the council, would be of special benefit for certain defined lands.

57. Menzies J, in Pestell , described the limits of the Court’s capacity to review the Council decision in the following way (at 323):

“The definition of the land that may be subjected to a local rate is determined by the council’s justifiable opinion of special benefit so that, if the so-called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.”

58. Mason J, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, expressed the principle as follows (at 40-42):

“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

59. The specific question of this Court’s capacity to review decisions by local councils concerning the use and management of community land was considered by Bignold J in this Court, at first instance, and by the Court of Appeal in Friends of Pryor Park Inc v Ryde City Council & Anor (1996) 91 LGERA 302 (“ Pryor Park ”). In the Court of Appeal decision, Gleeson CJ (as he then was) made the following relevant comments (at 314):

“In considering the status of Pryor Park as a public reserve, it is necessary to bear in mind that the issue before this Court is a legal issue as to the extent of the powers of the Ryde Council; not a social issue as to the merits of the manner in which the Council intends to exercise its power....Provided they are acting within the law, and in conformity with their legal obligations, it is for elected councillors, not judges, to make decisions about the use and management of community land, including public reserves.”

60. Thus, the consideration of the validity of the instruments challenged in these proceedings must similarly be restricted to the question of whether the relevant decisions by Council were made in conformity with its legal obligations, not whether the decisions were, in the Court’s opinion, the right, or most meritorious, social or political decisions.

61. It is now appropriate to set out exactly what were Council’s relevant legal obligations in this case.

F. COUNCIL’S LEGAL OBLIGATIONS

(i) Plan of Management

62. Chapter 6, Part 2, Division 2 of the LGA regulates the use and management of community land. The relevant provisions for present purposes are as follows:

“ 35 What governs the use and management of community land?
Community land is required to be used and managed in accordance with the following:

· the plan of management applying to the land

· any law permitting the use of the land for a specified purpose or otherwise regulating the use of the land

· this Division.

(4) For the purposes of this section, land is to be categorised as one or more of the following:

(a) a natural area,
(b) a sportsground,

A council may amend a plan of management adopted under this Division by means only of a plan of management so adopted.

63. A Plan of Management is valid if it has been prepared, exhibited and adopted by Council substantially in compliance with these provisions. To reiterate the principle outlined in section E above, it is not the Court’s role to review the merits of the plan, nor to substitute its own view for Council’s decision to adopt it.

(ii) Development Consents

64. In determining a development application, Council is required by EPAA s90 to take into consideration such of the matters there specified which are relevant to the subject development, such as its impact on the environment, its social and economic effect in the locality, and the provisions of any relevant environmental planning instrument.

65. Council must not take into consideration irrelevant matters, for example obsolete provisions of a superseded environmental planning instrument.

66. Council’s decision must be “within the purview of the provisions which confer the power [to determine a development application]”. Sommerville v Dalby (1990) 69 LGRA 422 ( “Sommerville ”). Conversely, Council must not misdirect itself in law as to the scope or content of its statutory powers or duties. Parramatta City Council v Hale (1983) 47 LGRA 319 ( “Hale ”). For example, a Council decision that purportedly gives consent to a development

application which, by the terms of the legislation, also requires Ministerial concurrence would, in the absence of that concurrence, be beyond power and therefore invalid.

67. In challenging the validity of a development consent on these grounds, three points should be made ( Hale) . Firstly, the applicant bears the onus of proving that Council has fallen short in discharging its duty. Secondly, the breach of duty must be a material or significant error such as to justify the intervention of the Court. Thirdly, it is the Council’s collective state of mind as found by the Court which is of critical significance to the challenge. Therefore, the applicant must present evidence that enables the Court to determine, and thereafter find legal fault with, the “collegiate mind” of the Council as a group.

68. In addition, Council’s decision must be within the realms of “reasonableness”. The Court will not conclude easily that a Council decision is legally unreasonable: a Council decision is invalid only if it is “so devoid of any plausible justification that no reasonable body of persons could have reached [it]”. Bentham v Kiama Municipal Council (1986) 59 LGRA 94.

69. It is probable that, in this particular circumstance, involving the use of community land, Council is further obliged to refuse consent if the proposed use of the land is “manifestly inconsistent” with the categorisation of the land in the relevant plan of management. (Pryor Park ).

(iii) Procedural Fairness

70. Council is also obliged generally to act fairly in the exercise of its powers. Whether Council is dealing with the plan of management or the development applications, it must adopt fair procedures. This may involve giving interested parties the right to be heard before a decision affecting them is made, or ensuring that the decision is not biased, for instance, by excluding from the decision-making process Councillors who stand to profit personally from a particular result.

71. However, precisely what Council must do to discharge this duty depends on the circumstances of the particular case. Kioa v West (1985) 159 CLR 550(“ Kioa ”). Truly political decisions, such as a decision to impose a general charge for services rendered to taxpayers, which do not directly affect the rights or interests of citizens individually, do not generally attract the duty to act fairly at all and are not judicially reviewable ( Kioa) . The duty may also be displaced by a specific provision to that effect in a statute.

72. Council’s duty to notify interested parties of a draft plan of management (and thereby to accord them an opportunity to be heard in respect of it) is codified in sections 38 and 40 of the LGA which are quoted above, and:

· require a council to give public notice of a draft plan;

· specify the minimum period of public exhibition and the minimum period in which submissions may be made; and

· set out procedures for adopting and amending the draft plan, including the mandatory consideration by a council of any submissions made.

73. These LGA provisions effectively displace any common law duty to notify, above and beyond these statutory requirements. The statute specifies the fair

procedures which Council is obliged to adopt in dealing with the plan of management, and Council need do no more than comply with them.

74. In respect of the procedures that must be adopted by a council when dealing with a development application, the EPAA does not generally require a council to give notice or advertise that it has received an application, unless the proposed development is deemed to be “designated development” (or otherwise identified as a development which should be treated as if it were designated development) for the purposes of that Act. That exception does not apply here.

75. Furthermore, the consideration by a council of planning matters generally does not invoke the common law rules of natural justice so far as concerns third parties. Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88. In other words, as a general rule, third parties are not entitled, as of right, to be notified about, and to be heard in respect of, a proposed development, even if it is likely to affect them personally.

76. Since there is no statutory obligation on Council to advertise or notify of development applications, and no general common law requirement to do so, Council is legally obliged to notify only if it has a policy of so doing, and consistently applied it. Mackinnon v Henry & Anor , unreported, Pearlman J, 40100/96, 12 March 1997. In those circumstances, an interested third party could legitimately expect Council to continue to apply such a policy.

77. There was no evidence presented to the Court in this case upon which I could conclude that Council had a policy of notifying interested parties of development applications. Accordingly, the Court cannot conclude that Council had a legal obligation to do so in the case of the development applications involved in this case.

78. Nevertheless, other principles of procedural fairness may still apply, such as the need for Council to avoid bias in the processing of the applications.

G. THE GROUNDS OF THE APPLICANT’S CHALLENGES

(a) General comments

79. The applicant attacked the validity of the relevant instruments on numerous grounds. However, the overriding claim appears to be the allegation that the development of Lismore Park, as authorised generally by the December Plan, and, specifically, by the Crozier Oval consent, was pre-determined by Council. The applicant says that Council intended from the beginning to approve the development of the relevant part of Lismore Park, and the process by which it was approved was essentially a sham. Objectors were never given a proper chance to influence the final decision.

80. This allegation encompasses a number of the applicant’s other, subsidiary claims, such as the claims that:

· the Steering Committee was “stacked” with pro-development members (bias);

· the objectives of the plan were based on the existing “illegal” grandstand development;

· the early lodgement of the Crozier Oval DA indicates that Council had predetermined to adopt the Plan; and

· the public submissions against the July or December plans were not properly considered.

81. I consider below, in detail, each of the applicant’s “subsidiary” and specific allegations, but it is appropriate at this point to make some general comments:

· Firstly, in dealing with the draft Plan of Management and the development applications, Council’s obligations are generally confined to those set out in section F of this judgment. A successful challenge to the validity of the instruments in question requires the applicant to prove that Council has in some way breached these obligations.

· It is not enough to suggest that Council was pre-disposed to a particular result. It will almost always be the case that a council will have some (probably publicly known) preference for a particular outcome in a significant planning matter. However, as long as it abides by its legal obligations, its final decision cannot be overturned.

· Furthermore, as Mr McEwen for Council noted, Council resolved, on 29 October 1996, to abort the proposal to construct a football stadium, to demolish the grandstand, and to conduct an investigation of alternative locations. While this resolution was later rescinded, it is compelling evidence against the broad thrust of the applicant’s challenge, namely that Council had, from the beginning, pre-determined the outcome of this development.

82. I now turn to the applicant’s specific challenges to the instruments in question.

(b) The Challenges to the Plan of Management

No.1 - Breach of LGA s36(3)(a) - identification of the category of the land

83. APC 29(i) asserts that Council breached its duty by “not correctly categorising the land known as Crozier Oval”.

84. The Plan divides the Park into three categories: “Sportsground”, “Sportsground and Park”, and “General community use”. Crozier Oval is included in the “Sportsground” category.

85. Chapter 3, paragraph 2.2 of the Plan sets out the rationale behind Council’s proposed categories:

· The “Sportsground” category “is restricted to fenced sporting fields with the vast majority of activity within the ground relating to sports usage.”

· The “Sportsground and Park” category “is a dual categorisation allowed under the terms of the LGA, 1993. Areas subject to such categorisation include unfenced playing fields and courts, and surrounding areas used for unstructured recreation. This category comprises the largest area and reflects the dual usage of much of the park which is subject to intensive sports usage primarily on weekends, with some midweek activity, yet at other times is used for walking, sitting, and informal play.”

86. The applicant claims that Crozier Oval should have been categorised as “Sportsground and Park”, to reflect its “inherent nature” as an integral part of the Open Space areas of Lismore Park.

87. It is generally within the discretion of Council to determine the category into which the land falls. The LGA requires only that the plan identifies a category, and, at s36(4), that the category is one of four specified alternatives. As long as Council’s choice of category is within the realms of legal reasonableness, it cannot be displaced by a different opinion being formed by the Court.

88. Furthermore, as noted by Beazley JA in Seaton v Mosman Municipal Council (1996) 93 LGERA 1 (“ Seaton ”), the LGA does not specify the consequences that would flow from Council making an inappropriate categorisation. In particular, the LGA does not state that a Plan would, as a consequence, be invalid. Pryor Park suggests that a lease or a licence that permits a use of community land manifestly inconsistent with its categorisation may be open to challenge, but that is not the situation in this case.

89. In so far as the Court is minded to consider the appropriateness of the categorisation of Crozier Oval as “Sportsground”, it appears to be an utterly logical choice. Merely because the applicant does not agree with or support the proposal does not render that categorisation inappropriate. To reiterate the principles of judicial review outlined in section E of this judgment, it is not the role of the Court to adjudicate on whether Council should have decided to keep Crozier Oval unfenced and open to the public. That is a political, not a legal, question.

90. The plan proposes that Crozier Oval is to be used as a fenced venue for football matches. In light of its proposed use, “Sportsground” is clearly the most obvious of the four LGA specified categories to apply to Crozier Oval.

No.2 - Breach of LGA s36(3)(b) - identification of objectives and performance targets

91. The applicant submits, at APC 30(i) that Council breached its duty pursuant to s36(3)(b) “by not correctly stating the objectives and performance targets of the plan with respect to Crozier Oval and Lismore Park”.

92. The applicant alleges that Council should have had in the plan more comprehensive and detailed objectives and performance targets, such as objectives and targets for:

· the removal or dissection of Jolley Field

· the construction of pedestrian pathways, carparks and access from Uralba and Dawson Streets

· the incorporation of the Lismore Band Pavilion building into the Crozier Oval development

· the hours of use or regulations applying to the operation of public toilet facilities at Crozier Oval

· the provision of safe pedestrian access when Crozier thoroughfare is unavailable.

93. The applicant specifically claims that Council did not correctly state the objectives and performance targets of the plan with respect to the “Sportsground and Park” category.

94. Again, this claim is based on the false premise that the Court can properly adjudicate on the correctness or otherwise of the objectives and performance targets stated in the plan. The Court may determine only whether or not the plan does indeed identify objectives and performance targets, not whether they are, in the Court’s opinion, appropriate or sufficiently detailed. That discretion is vested by the legislature in Council, and can be revisited by the Court in only very limited circumstances.

95. In my opinion, the plan clearly identifies objectives and performance targets with respect to the land, and thereby complies with s36(3)(b) of the LGA.

96. Chapter 4 of the Plan is entitled “Objectives, performance targets, means & assessment”. It lists the objectives and performance targets for each of the three categories of land within Lismore Park.

97. The objectives for the Sportsground category, which includes the controversial Crozier Oval proposal, are listed as follows:

· Provide a sporting facility specifically for the football codes with a rectangular, level field not containing a cricket wicket. Such facility must be able to take a “gate” through perimeter fencing.

· Increase shade provision for sport competitors and spectators.

· Facilitate continuation of current use of facilities.

· Enable upgrading of existing facilities and provision of minor additional facilities subject to Council approval.

98. The “Sportsground and Park” objectives are identified as:

· Increase shade provision throughout the park.

· Provide additional toilets and changerooms for sport users.

· Expand area available for Netball courts.

· Enable provision or upgrading of lighting facilities on Richards and Blair Ovals.

· Provide well maintained sporting areas.

· Facilitate continuation of current use of facilities.

· Enable upgrading of existing facilities and provision of minor additional facilities subject to Council approval.

99. The objectives for the “General community use” category are:

· Formalise use of No 2 Pavilion.

· Improve provision for fire safety and general public access.

· Increase return to Council from facilities with exclusive usage.

· Remove residential premises from Diadem Street.

· Provide a Youth Centre site adjacent to Mortimer Oval.

· Facilitate continuation of current use of facilities.

· Enable upgrading of existing facilities and provision of minor additional facilities subject to Council approval.

100. Beazley JA in Seaton referred to the Macquarie Dictionary definition of “objective” as “an end towards which efforts are directed; something aimed at”. The objectives listed for each of the categories clearly satisfy this definition of something being “aimed at”.

101. The performance targets for each of the categories are also spelt out in chapter 4 of the plan.

102. In the “Sportsground” category, they are:

· Set aside and develop Crozier Field as a fenced venue/spectator facility for football code usage to accommodate a maximum spectator capacity of 3000.

· Focus the field entrance to the north.

· Provide spectator shade.

· Comply with Council’s Sun Protection Strategy by aiming to provide protective shade for no less than 50% of total spectator area by the year 2002.

· Renew leases/licences as required.

· Determine requests for upgrade and minor additions on their merit.

103. The performance targets for the “Sportsground and Park” category are specified as:

· Comply with the provision of Council’s Sun Protection Strategy for parks by providing protective shade for no less than 30% of the overall informal recreation area.

· Greater access to clubhouse toilet facilities

· Modify usage of Travelling Show Reserve.

· Allow expansion of the Netball courts onto the Travelling Show Reserve.

· Allow upgrading of lux capacity of lights on Richards Oval.

· Allow application for training lights at Blair Oval

· Facilitate continued quality of maintenance of sporting fields

· Assess basis for hire as required

· Determine requests for upgrade and minor additions on their merit.

104. The performance targets for the “General community use” category are:

· Lismore City Concert Band to manage No 2 Pavilion.

· Users occupying premises ensure buildings adequately provide for fire safety and fire safety awareness.

· Users occupying premises facilitate the process of audit and alteration of premises to ensure accessibility for people with lower levels of mobility.

· Request market rent for all leased facilities.

· Sell premises known as “LDSA House” for removal from park.

· Lease site adjacent to Mortimer Oval.

· Renew leases/licences as required.

· Determine requests for upgrade and minor additions on their merit.

105. In Seaton, Beazley JA referred also to the dictionary definition of “performance” as “the execution or doing”, and the definition of “target” as “a goal to be reached”. I am satisfied that the performance targets specified in the plan properly fulfil this concept.

106. The applicant further criticised the objectives on the ground that they were based on an illegal development, namely, the partially constructed grandstand, subject to the suspended demolition order. However, the very purpose of the extensions of time granted by the Court in respect of the demolition order appears to have been to enable Council to revisit the proposal, this time in accordance with proper procedures, including the preparation of a draft plan of management. It was therefore legitimate for Council to include the construction of the grandstand as a future objective of the plan.

No.3 - Breach of LGA s36(3)(c) - identification of the means by which the Council proposes to achieve the plan’s objectives and performance targets

107. The applicant claims that Council breached s36(3)(c) by not providing means , specifically in respect of: the construction of public toilets; changerooms; first-aid rooms; internal field fence; canteens; any work related to creating a level playing field; the future sealing of Jolley Field carpark; and the construction of a sewer line.

108. Again, it is not the Court’s role to review the comprehensiveness of the means stated by Council in the plan, only whether means are in fact identified. Where means of achieving the objectives are stated, Council has fulfilled its statutory obligation, unless it could be said of those means that no reasonable body of persons could possibly have adopted them.

109. Chapter 4 of the plan specifies the means by which Council proposes to achieve the objectives and performance targets. For example, the means by which Council proposes to achieve the objective to “provide a sporting facility specifically for the football codes” (for the “Sportsground category”) is/are as follows:

· Council to undertake construction works to provide a level, rectangular field including fill on the northern side, and surface improvement

· Council to complete construction of 900 seat grandstand, construct 2.1m person-proof spectator fence with the main gate on the northern side, and undertake landscaping

· During competition matches attracting paying spectators: Pedestrian entrances to be provided from Dawson Street and Uralba Street;

· At all other times, gates fronting Magellan Street, Blair Oval and Jolley Field to be left open during the day to enable public access, and locked at night to avoid vandalism

· Football codes to provide materials and construct toilets, showers, change-rooms, canteen, and referees’ facilities

· Car parking to be provided by Harold Fredericks car park, John Crowther car park, current parking on-street, and on-park parking within Stage 1 of Lismore Park (indicated on Map 6)

· Spectator numbers to be controlled through use of numbered tickets

· Provide roof on Crozier Oval grandstand

110. Beazley JA in Seaton said: “the concept of ‘means’ in s36(3)(c) involves the identification of the method intended to be used to achieve an objective or performance target”. In my opinion, the above means clearly identify the methods to be used by Council to achieve its objective of providing a sporting facility specifically for some football codes.

111. It is not necessary to set out here all the means listed in chapter 4 of the Plan. I have carefully considered them and believe that they are proper “means” for the purposes of s36(3)(c) of the LGA.

112. Accordingly, I find that Council has discharged its obligations under s36(3)(c).

No.4 - Breach of LGA s36(3)(d) - identification of the manner in which the Council proposes to assess its performance with respect to the plan’s objectives and performance targets

113. The applicant claims that Council did not correctly identify in the Plan its proposed manner of performance assessment , although there were no submissions made in support of this claim. Once again it must be stated that the Court is generally confined to a consideration of whether performance measures were identified in the Plan, not whether those measures were “correct”.

114. I am satisfied that Council identified performance measures in the Plan. It is clear from Chapter 4 that Council understood its obligation under s36(3)(d) to monitor and evaluate the success of the Plan, and proposed to meet that obligation by employing a Council Officer to undertake an evaluation program, including the preparation of a regular report showing any changes in the key targets and assessing the need for an appropriate management response.

115. The evaluation program proposes to assess the development’s compliance with certain performance measures, set out in Chapter 4 and specific to each objective.

116. The description of these measures in Chapter 4 sufficiently exposes to the public Council’s proposed method of assessing its performance, and, accordingly, satisfies the requirements of s36(3)(d).

No.5 - Breach of LGA s35 - community land to be used and managed in accordance with any law regulating the use of the land

117. The applicant claims at APC 28(i) that Council breached its obligations under s35 because the December Plan is in breach of the objectives of Zone 6(a) Recreation Zone, under the Lismore Local Environmental Plan 1992 (“the LEP”), which are:

“(a) to ensure access by the general public to adequate open space to meet the needs of all residents and provide opportunities to enhance the total environment of the City of Lismore;
(b) to allocate land which will adequately provide both active and passive open space to service the present and future recreational needs of residents and visitors; and
(c) to manage flora and fauna on public space.”

118. In my opinion, the December Plan is not inconsistent with these objectives. It allocates large portions of Lismore Park for both active and passive open space to service recreational needs. The category which comprises the largest area is “Sportsground and Park”, which includes unfenced playing fields and courts, and permits intensive sports usage primarily on weekends, but at other times is to be used for “walking, sitting and informal play”.

119. Whether the Plan’s provision of open space is adequate is not a question to be determined by the Court, since that would be a review of the merits, not the legality, of the Council decision. The Plan’s proposed use of the Park is clearly “not antipathetic to” the zone objectives. Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185.

No.6 - Breach of LGA s38(4) - failure to exhibit draft plan together with other matters to better enable the plan to be understood

120. The applicant claims that Council breached its duty pursuant to s38(4) by failing to exhibit the draft plan “together with other matters which it should have considered to be appropriate or necessary to better enable the Draft Plan and its implications to be understood”.

121. The applicant claims that Council should have exhibited with the draft plan additional matters, such as:

· LEP amendment 35 which reclassified certain land within Lismore Park as “operational”;

· Development consent 96/102 for the use of a portion of the ground floor carpark of the Lismore Square for a car boot market, with carparking to be provided in Humbly Oval (within Lismore Park);

· The fact that the proposed carparking had increased by over 500 spaces since the July plan was adopted;

· A substantiation of the claim in the Plan that the proposal was supported by a number of local and regional rugby union, rugby league and soccer clubs.

122. This claim is again based on a misunderstanding of the role of this Court in reviewing Council’s actions. It is essentially for Council, not the Court, to determine which documents it considers necessary to exhibit to enable the Plan to be understood.

123. Council exhibited with the plan several documents, including relevant extracts from the LEP, the LGA, Council’s Policy on the Seasonal and

Daily Hire of Council Sportsgrounds, and a discussion paper on alternative options for football development in the region.

124. The inclusion of these documents with the exhibition of the draft Plan is sufficient, in my view, to conclude that Council properly discharged its obligations under s38(4). Council is not required by this provision to justify or substantiate with supporting documentation every aspect of its proposed Plan.

No.7 Breach of LGA s40 - Failure to consider submissions

125. The applicant claims at APC 34 that Council breached s40 “by failing to adequately consider all submissions”.

126. To prove a breach of s40, the applicant bears the onus of establishing that Council did not take into account submissions, or that its consideration of them was manifestly unreasonable.

127. There is no evidence before the Court to justify any such conclusions. The business paper of the Council meeting of 9 December 1997 (when the Council resolved to adopt the Plan) contains all the submissions made in respect of the Plan, including the submissions of the applicant. The submissions and key objections raised therein were comprehensively addressed in the Officers’ report to the 9 December meeting by Sandy Pimm, the relevant Council officer.

128. Some of the submissions were in favour of the draft plan and some were against it. Council’s decision to adopt the plan is not evidence of it having failed to consider the submissions against the plan. Accordingly, the applicant has not succeeded in making out this claim.

No.8 - Carparking as an issue

129. The identification in the December Plan of certain areas within Lismore Park as “sanctioned” carparking areas was strongly pressed by Mr Bellew for the applicant at the hearing as a point of contention. The applicant’s argument, as I understand it, is twofold:

Firstly, because there is no development consent for the car parks, and because carparking is not, in any event, consistent with the zone objectives, the Plan of Management was in breach of LGA s35 (which requires community land to be managed in accordance with any law regulating the use of the land, including the LEP).
Secondly, the use of the word “sanctioned” in the draft Plan was misleading to the public, because it implied that the carparks were already approved, and therefore denied the public the right to be heard on that issue.

130. In respect of the first argument, I do not think that the Plan is invalid merely because there is no current consent for its proposed car parking areas. I note that Council claims that it has the benefit of existing use rights for carparking on those areas, and consequently does not believe that it is necessary to obtain consent.

131. While I make no finding about whether or not existing use rights apply, the validity of the Plan does not depend on the determination of that question. The Plan is effectively a road map for the management of Lismore Park. It is not necessary that development consents be in place for every proposed use at the time of the adoption of the Plan.

132. I also do not think that the use of the word “sanctioned” to describe the proposed car parking areas invalidates the plan or, indeed, was an inappropriate choice of words.

133. The description must be considered in its context, ie, that of a draft plan, on public exhibition, open to public comment in respect of any and all of its contents. It was reasonable for Council to assume that the public would understand that the carparking areas were merely proposed to be sanctioned upon the adoption of the plan, not that they were already sanctioned, because everything in the plan was merely proposed - that is the very nature of and reason for a draft plan.

134. Accordingly, I reject the applicant’s attack on the validity of the Plan on the basis of the carparking issues.

No.9 - Procedural fairness

135. The applicant claims that Council breached its obligation to act with procedural fairness in preparing and adopting the Plan, by failing to specifically notify objectors to the July plan of the draft December Plan, and by demonstrating a biased approach in favour of the development.

136. The allegation of Council’s failure to notify is based on the applicant’s claim that Council resolved at its meeting of 16 September 1997 to notify those people who had previously made a submission, of the changes to the July plan effected by the new draft plan.

137. However, Council did not resolve in these terms at that meeting. The above intention to notify was merely a recommendation made in the relevant Council report. The actual Council resolution was only to place on exhibition the new draft plan for a period of 28 days and to call for submissions for a period of 42 days. Council is entitled, of course, to decide not to adopt the recommendations contained in a Council report.

138. Accordingly, it could not be said that Council engendered in the minds of previous objectors a legitimate expectation that they would specifically be notified of the changes to the July plan which were contained in the new draft plan.

139. Council’s obligations to notify, then, were confined to the obligations set out in LGA s38, namely, to give public notice of the draft plan, to place it on public exhibition for not less than 28 days, for the public notice to specify a period of not less than 42 days during which submissions may be made, and for Council to exhibit the draft plan together with any other matter which it considers appropriate or necessary to better enable the draft plan to be understood.

140. Council fulfilled these obligations and thereby properly gave the public the opportunity to be notified of and respond to the draft plan. In any event, the applicant itself made a submission in respect of the draft plan on 3 November 1997, so it could not be said that the applicant was denied a right to be heard.

141. The allegation of bias is based on the claim that the Steering Committee charged with preparing the draft plan was “stacked” with pro-development Councillors who did not properly consider alternatives. Further, it is submitted that Council did not properly consider the submissions made against the plan.

142. I do not think that the applicant has proved this claim. For a start, there was evidence that at least one of the Councillors who sat on the Steering Committee voted in favour of the motion on 29 October 1996 to demolish the grandstand and abandon the development on Crozier Oval. Therefore, it could not be said that the entire Committee was pro-development.

143. Secondly, since the decision to adopt the plan was made by the full Council, it is relevant only whether that body was biased, not the Committee which prepared the plan. Even if the Committee was entirely pro-development, it was open to the full Council to reject the plan, as it did once before on 29 October 1996. Therefore, the decision by Council to adopt the plan would not, in any event, be vitiated by any proven pro-development stance of the Committee.

144. Thirdly, true bias is not established by demonstrating that the full Council was generally pre-disposed to developing the land as proposed, because that is a “political” outlook which

Council is entitled to adopt. Improper bias entails an element of personal interest in the outcome, such as a financial interest, or an interest in a friend or relative achieving a particular result. That element is not present in the applicant’s claim.

145. Fourthly, I have already determined that there is no evidence to conclude that Council did not properly consider the submissions made in response to the draft plan. The submissions formed part of the papers before Council at the 9 December 1997 meeting and were specifically discussed in the relevant Council report.

146. Accordingly, I reject the applicant’s claim that Council failed to act with procedural fairness in respect of the preparation and adoption of the Plan.

Conclusions re (b) Challenges to the Plan of Management

147. For all the above reasons, I dismiss the application for declaratory and other relief in respect of the (December) Plan of Management.

148. I find the December Plan to have been validly made . Accordingly, LGA s 42 operates to revoke any earlier plan, such as the July Plan.

149. I turn now to the challenges in 40003 to the relevant DCs.

(c) Challenge to Development Consent 97/309 - Crozier Oval

150. The applicant challenges the validity of DC97/309 (the Crozier Oval development) on the basis that Council breached EPAA s90 by not properly considering certain matters relevant to the determination of the application. The applicant also criticises generally the decision-making process adopted by Council.

151. As noted above in section F(ii) of this judgment, the applicant bears a difficult onus in proving such a claim, in that it must demonstrate and find material fault with the relevant “collegiate mind” of Council. I do not think the applicant has proved that Council failed to take into account any of the relevant matters in s90.

152. Council employed an independent planning consultant “Balanced Systems” to assess the development application, and the assessment includes some 26 pages of comprehensive analysis of s90 considerations. This document was before Council when it made its determination, along with Council’s planning report which recommended approval.

153. There is no reason, therefore, to conclude that Council failed to take into account these relevant matters. Furthermore, it is generally for Council and not the Court to determine the appropriate weight to be given to such matters in making the determination. Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135.

154. I am also of the view that the other aspects of the decision-making process adopted by Council in respect of this development application are beyond challenge. Although the Courts have warned of the potential hazards of a

local council being both proponent and consent authority for a development application, those hazards were minimised in this case by Council engaging an independent external consultant to assess the proposal.

155. Council publicly advertised the development in the Northern Star Newspaper, notified in writing many adjoining owners and occupiers, and received thirteen submissions in response. There is no evidence, or reason to suspect, that Council did not consider these submissions. The report of the Council town planner recommended approval of the development and Council adopted the recommendation.

156. I can find no fault with this procedure. Indeed, it seems to me that Council was particularly diligent in its approach to processing this application.

157. The applicant further challenged the validity of the consent on the basis of an alleged breach by Council of EPAA s78.

158. The claim is that the development, as a traffic-generating development attracting the operation of State Environmental Planning Policy (“SEPP”) No 11, required the concurrence of the Traffic Authority of New South Wales before consent could be granted.

159. However, SEPP 11 does not require concurrence from the Traffic Authority; it requires only referral to it, and, accordingly, a breach of EPAA s78 cannot be established on this basis.

160. It is arguable whether or not SEPP 11 applied to this development, but even if it did, I do not consider that there was a material breach of it, because the development application was referred to the Local and Regional Traffic

Committees, who made detailed submissions that were incorporated in the assessment document produced by the independent planning consultant.

161. For all these reasons, I reject the applicant’s challenge to the validity of DC97/309.

(d) Challenge to Development Consent 97/371 - Blair Oval

162. The applicant challenges the validity of DC97/371 also on the basis that Council breached EPAA s90 by failing to take into account certain relevant matters. In particular, the applicant emphasises Council’s alleged duty to have considered the land as “Park”.

163. In respect of this particular claim, I do not regard the consent to construct “training lights” on Blair Oval as being “manifestly inconsistent” with its categorisation as “Sportsground and Park” under the Plan of Management.

164. The “Sportsground and Park” category contemplates the dual use of the land for sporting fixtures and unstructured recreational purposes, and the mere addition of training lights does not exclude passive recreational users from the land. Indeed, the provision of lighting facilities on Blair Oval is a specific objective of the “Sportsground and Park” category in the Plan of Management and, in so far as I might comment on the merits of Council’s decision to consent to the application, it seems entirely consistent with the use contemplated for that category in the Plan.

165. Accordingly, I reject the applicant’s challenge to the validity of DC97/371.

H. CONCLUSION AND ORDERS

166. For all the above reasons, the application in 40003 challenging the three relevant instruments must fail .

167. In those circumstances, the Council should also be released from its undertakings in matter 40181 .

168. In consequence of my findings, 40276 may now have little utility, and should be listed for callover before the Registrar so that its further disposition can be arranged.

169. Mr McEwen argued at the conclusion of the hearing that costs should follow the event in 40003.

170. Mr Bellew asked that, in exercising the Court’s discretion on costs, I consider both the public interest aspects of the case, and the hardship that any order for costs would cause the members of the applicant. Oshlack v Richmond River Council (1997) 96 LGERA 173.

171. The applicant brought 40003 and its claims have totally failed.

172. I believe the principles spelt out by the Chief Judge in North Cronulla Precinct Committee Inc v Sutherland Shire Council (40098 of 1997, 29 July 1998), in the context of Oshlack , cover the circumstances in which this applicant now finds itself.

173. I adopt for these circumstances what the Chief Judge said in that case (at pages 5 and 8):

“In this case, I accept that the applicant had a legitimate public interest in seeking to enforce the council’s compliance with the law and to hold the council accountable in its dealing with public land under its control. But such characterisation alone is not sufficient - something more is required to constitute special circumstances which would deprive a successful party of its costs.

….

I have concluded that, despite the public character of these proceedings, there are no special circumstances which would justify a departure from the ordinary principle that costs follow the event.”

174. Accordingly, the orders of the Court are:

Annexures

“A” Map.

“B” Judgment of Lloyd J, 23 February 1998.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 43 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

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Citations

Al Oshlack on behalf of the Lismore Greens v Lismore City Council (25 September 1998) [1998] NSWLEC 1

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

5

Parramatta City Council v Pestell [1972] HCA 59

Kioa v West [1985] HCA 81

CITATION:	AL OSHLACK ON BEHALF OF THE LISMORE GREENS v. LISMORE CITY COUNCIL (25 September 1998) [1998] NSWLEC 1
PARTIES:	Applicant AL OSHLACK ON BEHALF OF THE LISMORE GREENS, First Respondent LISMORE CITY COUNCIL, Second Respondent LISMORE DISTRICT SPORTS ASSOCIATION
FILE NUMBER(S):	40181 of 1995; 40276 of 1997; 40003 of 1998 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 ("EPAA") Local Government Act 1993 ("LGA") Land And Environment Court Act 1979 ("LECA") Crown Lands Act 1989 Lismore Local Environmental Plan 1992
CASES CITED:	Parramatta City Council v Pestell (1972) 128 CLR 305 ("Pestell"), ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, ; Friends of Pryor Park Inc v Ryde City Council & Anor (1996) 91 LGERA 302 ("Pryor Park"); Sommerville v Dalby (1990) 69 LGRA 422 ; Parramatta City Council v Hale (1983) 47 LGRA 319 ("Hale"); Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Kioa v West (1985) 159 CLR 550("Kioa"); Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88; Mackinnon v Henry & Anor, unreported, Pearlman J, 40100/96, 12 March 1997; Seaton v Mosman Municipal Council (1996) 93 LGERA 1 ("Seaton"); Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135; Oshlack v Richmond River Council (1997) 96 LGERA 173; North Cronulla Precinct Committee Inc v Sutherland Shire Council (40098 of 1997, 29 July 1998)
DATES OF HEARING:	9, 10, 11, 12 June 1998
DATE OF JUDGMENT:	09/25/1998
LEGAL REPRESENTATIVES:	N/A First Respondent Mr A Pickles, Phillips Fox Second Respondent N/A