Boral Resources (Country) Pty Ltd v Clarence Valley Council - [2009] NSWLEC 81

Reported Decision: 167 LGERA 134

Land and Environment Court

of New South Wales

CITATION: Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81

PARTIES: APPLICANT
Boral Resources (Country) Pty Ltd (40229 of 2008)
Cemex Australia Pty Ltd (40339 of 2008)
FIRST RESPONDENT
Clarence Valley Council
SECOND RESPONDENT
Gavan Avard

FILE NUMBER(S): 40229 of 2008; 40339 of 2008

CORAM: Pain J

KEY ISSUES:
JUDICIAL REVIEW :- whether development application properly notified - whether development advertised development - whether notice requirements of DCP could be dispensed with
DESIGNATED DEVELOPMENT :- whether alterations and additions were designated development - whether such characterisation a question of jurisdictional fact - whether council formed an opinion about no significant environmental impact
DEVELOPMENT APPLICATION - whether amendment of development application was for new development
PROCEDURAL FAIRNESS - whether failure to notify objector of decision to accept amendment to development application a breach of procedural fairness - whether legitimate expectation of further notification
DEVELOPMENT APPLICATION - whether failure by consent authority to consider zone objectives as condition precedent to granting of development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 77A, s 78A , s 79A, s 107
Environmental Planning and Assessment Regulation 2000 cl 5, cl 43, cl 44, cl 55, cl 86, cl 87, cl 88, cl 89, cl 90, Schedule 3
Land and Environment Court Act 1979 s 25B, s 25E, s 39(2)
Local Government Act 1913 (repealed)
Maclean Local Environmental Plan 2001 Part 3

CASES CITED: Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 158 LGERA 324
Auburn Council v Nehme (1999) 106 LGERA 19
Caldera Environment Centre Inc v Tweed Shire Council [1992] NSWLEC 82
Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78
Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Doueihi v Canterbury City Council (2003) 133 LGERA 138
Franklins Ltd v Penrith City Council [1999] NSWCA 134
GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256
Gee v Council of the City of Sydney (2004) 137 LGERA 157
Gordon & Valich Pty Ltd v Council of the City of Sydney [2007] NSWLEC 780
Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274
Hill v Woollahra Municipal Council (2003) 127 LGERA 7
Hornibrook v Willoughby City Council [1996] NSWLEC 214
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190
King v Great Lakes Council (1985) 58 LGRA 366
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207
Manly Council v Hortis (2001) 113 LGERA 321
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
North Sydney Municipal Council v Pielor Pty Limited (1981) 43 LGRA 184
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132
Porter v Hornsby Shire Council (1989) 69 LGRA 101
R v Connell; ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407
Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292
Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48
Thomas v Pittwater Council [2003] NSWLEC 19
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Trenwith v Sutherland Shire Council [2005] NSWLEC 143
ULV Pty Ltd v Scott (1990) 19 NSWLR 190
Weal v Bathurst City Council (2000) 111 LGERA 181
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
Woolworths Ltd v Wyong Shire Council (No 2) [2005] NSWLEC 607

DATES OF HEARING: 1 December 2008
2 December 2008
28 January 2009
29 January 2009

DATE OF JUDGMENT:
28 May 2009

LEGAL REPRESENTATIVES:
APPLICANT - 40229 of 2008:
Mr M Craig QC with Mr M Seymour
SOLICITORS
Boral Limited - Legal
APPPLICANT - 40339 of 2008:
Mr T Hale SC
SOLICITORS
Minter Ellison

FIRST RESPONDENT
Submitting appearance
SECOND RESPONDENT
Mr J Robson SC with Ms S Duggan
SOLICITORS
Huegill & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 May 2009
40229 of 2008 Boral Resources (Country) Pty Limited v Clarence Valley Council and Anor

40339 of 2008 Cemex Australia Pty Limited v Clarence Valley Council and Anor
JUDGMENT

1 Her Honour: The First Respondent (Clarence Valley Council) approved a development application for a concrete batching plant made by the Second Respondent for land at James Creek Road, James Creek (the James Creek site) on 5 December 2007. Separate Class 4 proceedings have been commenced by Boral Resources (Country) Pty Ltd (Boral) and Cemex Australia Pty Ltd (Cemex) seeking declarations of invalidity of the development consent granted by the Council to the Second Respondent. The two matters raise similar but not identical issues. The Council has filed a submitting appearance in both matters.

2 Each matter had separate evidence although there was considerable overlap between the documents relied on in both cases. The grounds of judicial review challenging the Council’s decision to grant development consent are:

1. failure to properly notify the development application as required under s 79A(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (raised by Boral only);

2. the amended DA was for designated development which did not come within cl 35 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) (raised by both Boral and Cemex);

3. the DA was new and not an amendment of a DA falling within cl 55 of the Regulation (raised by both Boral and Cemex);

4. the Council failed to accord procedural fairness (raised by Boral only);

5. the Council failed to consider zone objectives (raised by Cemex only).

Chronology

3 The chronology of events based on the tendered documents is not in dispute.

(i) On 21 September 1977 an application was lodged with the Council by Big River Mini-Mix for approval of a concrete plant.

(ii) The Notice of Determination was issued granting consent (the 1978 consent) subject to compliance with the conditions of approval which relevantly included:

3. The provision of adequate toilet facilities and employees’ amenities on the site.
4. Proper measures being taken to arrest and contain any run off and storage used in connection with the proposed operation. In this regard no liquid wastes are to be allowed to enter James Creek at any time.
5. The taking of effective measures are at all times to prevent any nuisance being caused by noise, vibrations, smells, fumes, dust, smoke, wastewater products and the like…
6. The construction of all buildings being the subject to separate application to Council for formal building approval.
7. Any extension or enlargement of the operation on the site to be the subject of a further application to Council for development approval.

(iii) Pursuant to Condition 7 building approval was sought and granted for office, amenities and outbuildings in 1978. The construction of the amenities fulfilled Condition 3. A shed was later constructed in compliance with Condition 7 in 1982.

(iv) On 18 October 1982 Maclean Shire Council approved a building application for the erection of a storage silo at the land for the purposes of the concrete mixing plant.

(v) Development as a concrete batching plant was carried on at the site until 1989. The business operated under the name of “Big River Mini Mix” until its relocation to Yamba Industrial Estate in 1989. Plant and equipment was removed from the site and relocated to Yamba.

(vi) On 22 May 2007, the Second Respondent submitted a development application (the May 2007 application) to the Council concerning the same land the subject of the 1978 consent. This development application sought development consent for the use of the land as a concrete batching plant as well as a consent to erect new structures and infrastructure associated with that activity. Documents accompanying the application included a contour survey of the site, a map prepared by the Second Respondent’s planning consultant, Laterals Planning Pty Ltd (Laterals), showing proposed subdivisions of the concrete batching plant, a Statement of Environmental Effects (SEE) dated May 2007 prepared by Laterals on behalf of the Second Respondent and a Water Cycle Management Study dated 10 May 2007 prepared by Morse McVey & Associates. The Water Cycle Management Study identified the existence of man-made wetlands which were described in the study as “a valuable asset to the property and the environment” and, under the proposed wastewater management plan, were to be preserved and used for final polishing of waste water before draining into James Creek.

(vii) The May 2007 application was notified and advertised in accordance with the Clarence Valley Council Development Control Plan – Development in Rural Zones – Part B Notification and Advertising of Development Applications (the Notifications DCP). This fact was communicated by the Council to the Second Respondent in a letter dated 24 May 2007 acknowledging receipt of the development application. In accordance with the Notification DCP the Council sent a Notice of a Development Application dated 4 June 2007 to Boral.

(viii) Boral lodged an objection, through its consultant Connell Wagner, to the May 2007 application on 8 June 2007.

(ix) In a letter dated 25 June 2007 to the Second Respondent, a Council officer stated his view that the application was for designated development and that certain information necessary to make a determination was not submitted. The letter requested detailed information on the proposed construction method of the wastewater management system and the proposed pond construction. The letter also requested that an acid sulfate soil management plan and a flora and fauna survey of the site both be provided to the Council. Without the additional information being provided, the letter stated that the Council officer intended to recommend refusal of the application based on the information that had to date been provided. Laterals, on behalf of the Second Respondent, responded to this request for information in a letter to the Council officer dated 4 July 2007. The Council officer reconfirmed his view in a letter dated 19 July 2007 that the development application was for designated development and stated his intention to recommend refusal of the development application.

(x) In another letter dated 4 July 2007 Laterals responded to the objections made to the Council. Objections were made by Connell Wagner on behalf of Boral (see (ix)) and by two other objectors to the development, Minter Ellison on behalf of Rinker Australia (dated 7 June 2007) and Helen and Stephen Robertson (dated 7 June 2007).

(xi) The Council officer prepared a s 79C evaluation of the May 2007 application dated 23 July 2007 (the Council officer’s report). This report dealt with, inter alia, the environmental planning instruments relevant to the May 2007 application (including a Regional Environmental Plan, two State Environmental Planning Policies and the Maclean Local Environmental Plan 2001 (the LEP)), the likely impacts of the development on the natural and socio-economic environment and the suitability of the site for development in terms of services, road access and flooding.

(xii) Boral was invited by a letter dated 3 August 2007 to attend a meeting of the Council committee on 14 August 2007 when the May 2007 application was to be considered and to attend a site inspection on 13 August 2007. In its report dated 14 August 2007 which considered the Council officer’s report, the Council committee recommended that the Council refuse the May 2007 application because the development proposed was designated development and was not accompanied by an environmental impact statement (EIS) or advertised in accordance with the requirements of designated development. This report of the Council meeting was attached to the letter from the Council of 3 August 2007. The Second Respondent was similarly notified by a letter dated 3 August 2007.

(xiii) Laterals responded to the Council committee’s report in a letter to the Council dated 13 August 2007. A further letter was sent to the Council dated 20 August 2007 prior to the consideration of the development application by the Council meeting. This letter requested that if the Council would not approve the current application before it that it instead accept an amendment to the development application as seeking consent for alterations and/or additions to an existing use of the James Creek site.

(xiv) The May 2007 application was considered by the Council on 21 August 2007. The Council resolved to defer determination of the May 2007 application. The minutes of the meeting included the report of the Council committee dated 14 August 2007 recommending refusal of the May 2007 application. Attached to the Council minutes were the relevant plans submitted by the Second Respondent, the Council officer’s report, the three submissions to the Council by way of objection to the May 2007 application and the Second Respondent’s response to these objections.

(xv) In a letter dated 17 September 2007 the Council officer notified the Second Respondent’s consultant that if the Second Respondent sought to amend the May 2007 application this should be done by providing the Council with a written request to amend the application accompanied by relevant supporting documentation detailing the nature of the new proposal and its expected environmental impacts sufficient for Council to make a determination of the development’s environmental impact pursuant to cl 36 of Sch 3 of the Regulation.

(xvi) On 24 September 2007 the Second Respondent applied to amend the May 2007 application. The September 2007 application was based upon the continuation of the operation of the concrete batching facility under the 1978 consent. Approval was sought for “alterations and additions involving the new batching plant structure and associated development and the new water management facility.” A revised SEE subtitled “Rebuilding of Concrete Batching Plant Structure and Associated Works on Lot 5 DP 1093910, James Creek Road, Maclean” and dated September 2007 was lodged with the application. Five plans were also lodged. As stated in the September 2007 application,

to assist in removing confusion a new and complete set of documentation is now provided for the amended Development Application. In this regard the complete documentation in relation to the current application can be set aside and this new set of documents considered instead.

(xvii) On 6 November 2007 the Council’s officer advised the Second Respondent that the Council had accepted the amendment to the development application. In this letter the Council officer stated that Council staff believed that the proposed development still constituted designated development. Attached was the report of the Council committee dated 13 November 2007 recommending refusal of the September 2007 application on the grounds that the development constituted designated development and no EIS had been prepared. On the same day Council notified Boral and the two other objectors who had made submissions that the Council committee would be considering the September 2007 application on 13 November 2007. The report of the Council committee dated 13 November 2007 was attached to each of these notifications.

(xviii) Between 8 November 2007 and 13 November 2007 the Second Respondent delivered to four Councillors a letter dated 8 November 2007 from the Second Respondent’s solicitor to the Second Respondent describing the assessment the Council was required to undertake in applying cl 35 or Sch 3 of the Regulation. The solicitor stated that the question is whether the alteration or additions significantly increase environmental impacts compared to the development as already consented to rather than the environmental impact of resuming the existing use already approved. The solicitor suggests that the Council committee’s report dated 13 November 2007 which was sent to the Second Respondent on 6 November 2007 is incorrect in its assessment pursuant to cl 35 and cl 36 of Sch 3 of the Regulations.

(xix) On 9 November 2007 an objection to the September 2007 application was lodged by Connell Wagner on behalf of Boral.

(xx) The September 2007 application was considered at an ordinary meeting of the Council on 20 November 2007. The minutes of the meeting included the report of the Council committee dated 13 November 2007 recommending refusal of the September 2007 application. Also attached to the minutes was the letter to the Council from Laterals dated 4 July 2007 responding to the three submissions made by way of objection by Boral and the two other objectors. At the meeting the following resolution was recorded:

That Development Application DA2007/0371 for the proposed rebuilding of the concrete batching plant structure and associated works at James Creek Road, Maclean, Lot 5 DP 1093910 be approved subject to conditions

(xxi) The conditions referred to in the resolution of Council were not before the Council meeting. The Notice of Determination was issued on 5 December 2007 containing 57 conditions of consent.

4 An agreed bundle of documents was tendered by the Applicant and contained, inter alia, the documents referred to in the above chronology.

Affidavit evidence of Boral

5 An affidavit of expert witness Mr Desmond Brady, town planner with Laterals, sworn 22 July 2008 was read in part for the Applicant. Mr Brady attests that during his career he has had experience in assisting applicants for development proposing to carry out concrete batching. Mr Brady was instructed by the Applicant to ascertain whether an objection could be lodged in relation to the Second Respondent’s May 2007 application.

6 Mr Brady states that as a result of his investigations he believed that an objection to the May 2007 application could be supported and he prepared and lodged an objection with the Council on behalf of the Applicant annexed to his affidavit. Mr Brady attested to the record of correspondence between the Council and Laterals set out in the chronology. Mr Brady states that no letter was received by Laterals from the Council in relation to any amendment to the May 2007 application.

7 Mr Brady’s affidavit annexed the documents produced by the Council in response to a Notice to Produce which sought documents relating to the May 2007 and September 2007 applications. In the affidavit, Mr Brady considers these annexures in order to compare the 1978 consent and September 2007 development application. Mr Brady concludes that no reasonable person could have formed a view that the September 2007 application was not likely to significantly increase the environmental impacts of the total development compared to the development approved by the 1979 consent.

8 Also annexed to the affidavit is a letter from the Department of Conservation and Climate Change (DECC) to the Council in relation to a 2005 development application lodged by the Second Respondent. The letter recommends, inter alia, that the Council, prior to determining the application, undertake an appropriate level of aboriginal cultural heritage assessment and be satisfied about the impact of the development in relation to flora, fauna and aboriginal cultural issues. Mr Brady states his opinion that the September 2007 application raises similar issues and that a floral and fauna study and cultural heritage study would have been needed to determine whether or not there would be no significant impact arising from the alterations and additions proposed.

9 Five photos were annexed to Mr Brady’s affidavit which were tendered separately by the Applicant. These photos of the site were taken in December 2005. Mr Brady’s states in his affidavit that they show minimal infrastructure present to support a use of land for the purpose of a concrete work without further works being carried out. What remains on the site is a large concrete slab and shed and concrete stockpile holding bins.

Affidavit evidence of Second Respondent in Boral

10 An affidavit of Mr Anthony Rowan, town planner and heritage consultant, sworn 16 October 2008 was read for the Second Respondent. Mr Rowan provided an expert opinion as to whether the Council had sufficient information to make a properly informed decision as to the environmental impact of the total development pursuant to cl 35 of Sch 3 of the Regulation. A report was annexed to his affidavit. Mr Rowan relied on documents produced by the Council pursuant to a Notice to Produce relating to the planning history of the site as well as the May 2007 application and September 2007 application and the documents accompanying both applications. His report was in reply to the report of Mr Brady.

11 Based on Mr Rowan’s review of the documentation before him, he states in his report that the Council had sufficient information, from that either as submitted by the Second Respondent or from within the historical planning files associated with the subject site, to determine that the alterations and additions would not significantly increase the environmental impacts of the total development compared to the existing development.

12 Two affidavits of Mr Barry Hall sworn 3 June 2008 and 7 August 2008 were also read for the Second Respondent. In the June 2008 affidavit which was read in part, Mr Hall states that he purchased Big River Readymix Concrete in either 1979 or 1980. Within 12 months of purchasing the business four large concrete trucks were in operation. He describes the operation of the concrete batching plant and the size of production after the business was purchased. Application for building approval for a storage silo was made in 1982. Mr Hall estimates 12,000 cubic metres of concrete production occurred each year up until 1989 and this involved on average ten truck movements each way per day. The business moved to Yamba in 1988 or 1989. The site continued to be used for storage of raw materials for the batching plant. Mr Hall states that it was always his intention, should demand require, to reopen the batching plant at the site. The affidavit also describes the retention ponds. Mr Hall states in the August 2008 affidavit that the silo made operations easier and increased cost efficiencies but it did not change the capacity of the plant. Mr Hall disagrees with the estimated capacity of the site provided in Mr Brady’s affidavit of 22 July 2008 which states his view that the original set up of the plant based on the 1978 report served to limit the capacity of the plant. Mr Hall states that the capacity was much greater than that suggested by Mr Brady. The business was always able to meet demand which was sometimes very high.

13 The Second Respondent, Gavin Avard, also relied on his affidavit sworn 3 October 2008 which was read in the Cemex matter and is summarised below.

Evidence in Cemex

14 An agreed bundle of documents (exhibit BB) containing very similar documentation as the agreed bundle in Boral (exhibit C) was tendered by the Applicant.

15 An affidavit sworn 25 September 2008 by Mr Richard Peter, the Applicant’s Operations Support Manager, was read in part for Cemex. In July 2004 Mr Peter assisted in completing due diligence on behalf of the Applicant in relation to the acquisition of Big River Concrete which was owned at the time by Barry Hall and was operating at Yamba Industrial Estate (the Yamba site). Big River Concrete was purchased by the Applicant in February 2005. Mr Peter states that since purchasing the business, the Applicant has carried on operations at the Yamba site with the same plant and equipment. Annexed to his affidavit are photographs of the plant at the Yamba site and a copy of the development consent permitting the Applicant to operate there.

Affidavit evidence of Second Respondent in Cemex

16 The Second Respondent relied on the affidavit of Anthony Rowan which was read in the Boral matter.

17 The Second Respondent also relied on the following affidavits:

(i) An affidavit of Mr Allan Cameron sworn 10 October 2008. Mr Cameron owns property immediately adjacent to the James Creek site on which he lives. Mr Cameron also owned the James Creek site until selling it to the Second Respondent in 2006. Mr Hall leased the site from Mr Cameron from 1977 until June 2005. Before this the site had been used as a quarry. Mr Cameron states that on taking over the lease, Mr Hall made the site ready for operation as a concrete batching plant. The affidavit states that the site appeared to be very busy up until 1989. When the silo was removed in 1989 Mr Cameron states that the storage bins contained raw materials on some occasions but would be empty at other times. The filling and emptying of bins continued until about February 2005. Machinery and raw materials were stored at the site up until June 2005 and Mr Hall continued to pay Mr Cameron rent for the site up until this time. The affidavit states that installing a weigh-hopper and front-end loader at the site would be sufficient to restore the site to the same operation started in 1978.

(ii) An affidavit of Gavan James Avard (the Second Respondent) sworn 3 June 2008 attests to the delivery by Mr Avard to four Councillors of the letter annexed to his affidavit and described at par xviii of the chronology.

(iii) In another affidavit sworn 3 October 2008, Mr Avard describes the work needing to be done in order to recommence use of the site as a concrete batching plant without the erection of a new silo. This work includes cleaning and emptying the existing storage bins (presently containing sand), cleaning the settling ponds and wash bay and installing a semi-mobile weigh-hopper with conveyor.

(iv) An affidavit of Mr Hall sworn 10 October 2008. Mr Hall refers to the sale of Big River Concrete in 2005 to Cemex and states that at the time the James Creek site was being used for storage of raw materials and equipment. The James Creek site was not included in the sale of the business. Mr Hall states that if the storage bins are still at the site, only a weigh-hopper would need to be transported to the site for the concrete batching plant to operate.

(v) An affidavit of Mr Barry Lawry (undated), an employee of Big River Concrete Company between 1988 and 2004, was also read. Mr Lawry stated that during 1989 the plant was removed from the James Creek site but the site remained in use and the holding bins remained active. Extra stock and equipment including trucks and plant were stored at the site. Trucks came to the site intermittently to pick up stored material.

Issue 1 - There was a failure by the Council to advertise the amended application as required by s 79A and the applicable DCP (Boral)

Legislation

18 Section 79A of the EP&A Act headed “Public participation – advertised development and other notifiable development” identifies public participation requirements for 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.

19 “Advertised development” is defined in s 4 of the EP&A Act as:

… 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.

20 Clause 5 of the Regulation provides:

5 What is advertised development?

(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) are identified as advertised development:

(a) State significant development referred to in section 76A (7) (b) or (d) of the Act (not being Class 1 aquaculture development), referred to in this Regulation as

State significant advertised development

(b) integrated development (not being State significant advertised development, 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 (not being State significant advertised development), 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:

…

(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

21 None of the types of advertised development in s 5(1) apply to the Second Respondent’s development.

22 Clause 90 of the Regulation (in Pt 6 Div 7 – Public Participation – other Advertised Development) provides:

90 Circumstances in which notice requirements may be dispensed with

(1) This clause applies to a development application that before being determined by the consent authority, has been amended or substituted, or that has been withdrawn and later replaced, where:

(a) the consent authority has complied with this Division in relation to the original application, and

(b) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,

referred to in this clause as a replacement application.

(2) The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application.

(3) The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act.

23 Table B1 of the Clarence Valley Council’s Rural Residential Development Control Plan (the DCP) sets out three categories of development:

1. Development that does not require notification or advertising
2. Development that requires notification
3. Development that requires notification and advertising

24 The third category, development requiring notification and advertising, includes amendments to applications which were previously notified and advertised and where submissions were made. Part B of the Notifications DCP sets out what notification and advertising requires for development falling within the third category. A letter of notification must be sent containing the information prescribed by B4 of Part B and to those prescribed in B5 of the Part B. B6 of Part B provides an exemption from this notification procedure where an application is made to amend a previously approved DA where the amendments are of a minor nature and do not change the height or setbacks or window size and window placement of the proposed development. B8 of Part B prescribes the requirements for advertising within a local newspaper and by erection of a sign on the land, both to be in a specified form.

25 There is no dispute that the September 2007 application was not notified or advertised by the Council before development consent was granted. The May 2007 application was notified and advertised in accordance with the DCP.

Boral’s submissions

26 Boral argued that s 79A(2) of the Act required the Council to advertise the September 2007 application. Section 79A(1) applies to advertised development. Section 79A(2) applies to specified development which is not designated or advertised development and is the relevant subsection applying in this case. Advertised development is a defined “species” of development rather than development which in fact is advertised. Advertised development as defined in s 4 of the Act refers to development recognised as advertised development by the Regulation, an environmental planning instrument (EPI) or a development control plan (DCP). Clause 90 of the Regulation, which identifies circumstances in which notice requirements may be dispensed with for “other advertised development”, does not apply to the September 2007 development application. Rather, the DCP has a section on notification and advertising of development applications. It requires amendments to development applications previously notified and advertised to be further notified and advertised if submissions had originally been received by the Council. Boral made such a submission. Consequently, there has been a failure to comply with s 79A(2) and the DCP.

27 The effect of a failure to advertise is recognised as voiding a development consent; see Doueihi v Canterbury City Council (2003) 133 LGERA 138 and Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11.

Second Respondent’s submissions

28 The Second Respondent argued that s 79A(1) is the relevant subsection applying in this matter not s 79A(2). Where development is relevantly “other advertised development” as defined by cl 5 of the Regulation the provisions of cl 90 apply.

29 Accordingly, where an obligation to advertise an application arises pursuant to the provisions of a DCP, cl 90 operates to permit a consent authority to dispense with advertising in connection with a “replacement application”. That is, the exemption contained in cl 90 of the Regulation applies even if the DCP does not contain a power to dispense with advertising. A proper statutory construction leads to such conclusion on the basis that the definition in cl 5(2) of “other advertised development” includes advertising required only by a provision of a DCP. The provisions of cl 90 provide an exemption which is independent of the specific provisions of any DCP. The legislative intention is that the provisions of cl 90 apply whether or not the DCP makes specific provision to exempt compliance with the advertising requirements.

30 The Second Respondent’s consultant, Laterals Planning, submitted to the Council in its letter applying to amend the May 2007 application that the Council did not need to readvertise the development as the September 2007 development application differed in only minor respects to that originally lodged. The only available inference in light of the fact that the Council did not readvertise is that the Council accepted the submission of the consultant.

31 The balance of the May 2007 application remained current in the September 2007 application. Further, there is no dispute that the Council had complied with the DCP in relation to the May 2007 application. The differences between the May 2007 and the September 2007 application were to reduce the potential impact of the development rather than increase it. To that extent the Court could be satisfied that any person who was concerned about the application and its impacts would have objected to the May 2007 application. Therefore the Council’s renotification of the September 2007 application to those persons who had made submissions was sufficient to alert such interested persons to the variation between the application in its amended form.

32 In any event there was renotification of Boral of the amended development application because by letter dated 6 November 2007 the Council notified the Applicant that the amended development application was to be considered at a meeting of the Council committee on 13 November 2007. The letter attached the Council committee’s report dated 13 November 2007 recommending refusal of the September 2007 application. The Council considered the application on 20 November 2007. There was no denial of procedural fairness in these circumstances.

Finding on issue 1

33 The primary issue that arises is whether the September 2007 development application is advertised development. The answer to that issue determines whether subsection (1) or (2) of s 79A applies to the September 2007 development consent and therefore whether cl 90 of the Regulation applies. Clause 90 can only apply if s 79A(1) does. Under cl 90(1)(b) if the consent authority considers that the amended, substituted or later application differs in only minor aspects from the original it can decide to dispense with further compliance with the Division. Clause 90 appears in Pt 6 Div 7 of the Regulation. Part 6 Div 7 of the Regulation is headed “Public Participation – other advertised development” and applies, as provided by cl 86(1) of the Regulation, to “other advertised development” (as specified in cl 5(2)). Clause 87 specifies that written notice of such an application must be given and the application must be published in a local newspaper. Clauses 88 and 89 further expand on these requirements. Clause 90 specifies when notice requirements may be dispensed with in relation to the requirements in this Division.

34 Advertised development as defined in s 4 of the EP&A Act can be identified by the Regulation, in an environmental planning instrument or a DCP. The Applicant argued that “advertised development” is a specified category of development which can be defined in the Regulation and the DCP. Such categories are defined expressly for the purpose of s 4(1) of the Act in cl 5(1) of the Regulation. Under cl 5(2)(d) a category of “other advertisement development” is identified for the purposes of the Regulation. No category referred to as “advertised development” is identified in the DCP.

35 The Second Respondent argued that cl 5(2)(d) of the Regulation applies so that this development application is “other advertised development”, meaning essentially that if a DCP requires advertising of a development it is “advertised development” as defined in s 4 of the EP&A Act. Consequently s 79A(1) applies and cl 90 of the Regulation can apply so that the DCP notification and advertising requirements for amended development applications can be varied or not applied by the Council.

36 Advertised development is identified in cl 5(1) of the Regulation for the purposes of the definition of advertised development in s 4. As noted by Talbot J in Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78 at [121], s 79(2) specifies kinds of development that are included in the term “other advertised development” as it is used in cl 5 of the Regulation. Subclause 5(2) of the Regulation is not creating a category of advertised development for the purposes of the definition in s 4(1) of the EP&A Act (in contrast to cl 5(1) which does). The reasoning in Centro at [14] that the development identified by cl 5(1) of the Regulation has not been identified as advertised development by the Regulation and is not within s 4 of the EP&A Act is correct and should also apply in this case. That means the September 2007 application is not advertised development, s 79(2) applies to it so that the DCP requirements for notification and advertising must be complied with. It is not disputed that they were not. Clause 90 does not therefore apply to enable the Council to vary or not apply the DCP.

37 For completeness I will consider cl 5(2) of the Regulation in more detail in deciding whether the DA was for advertised development. Clauses 5(2)(a) – (c) specify particular developments as “other advertised development” for the purpose of the Regulation. The categories in cl 5(2)(a) – (c) do not apply to the proposed development. Subclause (d) refers to development identified as advertised development, inter alia. Assuming, contrary to what I just held that this subclause could be a definition of advertised development as referred to in s 4(1) of the EP&A Act, there is a distinction between development which a DCP requires to be advertised and development “identified as advertised development” as the term is used in cl 5(2)(d). “Other advertised development” is intended as a specific category which can be defined if a Council wishes to have such a category. A DCP requiring a DA to be advertised in a DCP does not alone render the development “advertised development” within the meaning of s 4 of the EP&A Act or “other advertised development” under cl 5(2)(d) of the Regulation. If that had been the intention of the legislative drafters it would have been easy for this to be expressed in cl 5(2)(d).

38 The September 2007 application was not “other advertised development” under cl 5(2)(d) of the Regulation and s 79A(1) does not apply. The relevant subsection applying to notification and advertising is s 79A(2) as the development is specified development for which provisions for notification and advertising in the DCP apply. Specified development is not defined in the Act. Clause 90 of the Regulation does not apply when s 79A(2) applies, as submitted by the Applicants.

39 There has therefore been a breach of a requirement for notification and advertising of the September 2007 DA in accordance with the DCP and consequently with the EP&A Act under s 79A(2). The issue therefore arises whether this breach should invalidate the consent granted by the Council.

40 There are several examples in this Court where consent has been held to be void after a failure to properly comply with notification or advertising requirements. In Doueihi v Canterbury City Council notice given by the Council of a development application was held to be misleading. The effect was that the applicant in Class 4 proceedings was deprived of the opportunity to properly consider the proposal and make submissions in relation to it. This amounted to a denial of procedural fairness and therefore McClellan J held the development consent granted by the Council was void. Similarly in Trenwith v Sutherland Shire Council [2005] NSWLEC 143 a site analysis plan was not attached to a letter to the applicants which would have enabled them to fully appreciate and make submissions in relation to the development proposed. This failure to properly notify rendered the consent void. In Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 development consent granted was held to be void as the development application was advertised in a misleading manner. There was a failure by the Council to accurately describe the land to which the development application related.

41 The Second Respondent referred in submissions to the circumstance that Boral was notified of the Second Respondent’s amended development application by the Council before it was considered by the Court so that it had the opportunity to comment. This was to support a submission that there had been adequate notification in this matter. These matters and relevant case law can be further considered when the parties are addressing the issue of whether I should make orders under s 25B of the Land and Environment Court Act 1979 (the Court Act). Whether the appropriate outcome in this matter is that the development consent is void or an order under s 25B of the Court Act ought be made will require further submissions from the parties.

Issue 2 - The amended development application lodged by the Second Respondent was for designated development (Boral/Cemex)

42 Section 77A of the EP&A Act provides:

77A Designated development

Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

43 Section 78A(8)(a) of the EP&A Act provides:

(8) A development application 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

44 Clause 4(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides:

(1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.

45 Clause 14 of Pt 1 Sch 3 of the Regulation provides:

14 Concrete works

(1) Concrete works that produce pre-mixed concrete or concrete products and:

(a) that have an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year of concrete or concrete products, or

(b) that are located:

(i) within 100 metres of a natural waterbody or wetland, or

(ii) within 250 metres of a residential zone or dwelling not associated with the development.

46 It is not in dispute that the May 2007 application and September 2007 application sought approval for concrete works within the description of cl 14 of Sch 3 of the Regulation. Pre-mixed concrete or concrete products would be produced. The works associated with that activity would be located both within 100 metres of James Creek, a natural water body and also within 250 metres of a dwelling which was not associated with the development.

47 Clause 35 of Pt 2 Sch 3 of the Regulation provides:

35 Is there a significant increase in the environmental impacts of the total development?

Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

48 Clause 36 of Pt 2 Sch 3 of the Regulation provides:

36 Factors to be taken into consideration

In forming its opinion as to whether or not development is designated development, a consent authority is to consider:

(a) the impact of the existing development having regard to factors including:

(i) previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and

(ii) rehabilitation or restoration of any disturbed land, and

(iii) the number and nature of all past changes and their cumulative effects, and

(b) the likely impact of the proposed alterations or additions having regard to factors including:

(i) the scale, character or nature of the proposal in relation to the development, and

(ii) the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and

(iii) the degree to which the potential environmental impacts can be predicted with adequate certainty, and

(iv) the capacity of the receiving environment to accommodate changes in environmental impacts, and

(c) any proposals:

(i) to mitigate the environmental impacts and manage any residual risk, and

(ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.

49 There is no dispute by the Second Respondent that the amended DA was for “concrete works” within the meaning of cl 14 of Sch 3. It argued however that cl 35 applies so that the proposed development is not designated because development consent was sought in the September 2007 application for “alterations and additions involving the new batching plant structure and associated development and the new water management facility”. The Applicants disputed that the proposal was for alterations and additions because the Council granted development consent for “rebuilding of the concrete plant structure and associated works subject to conditions”.

Applicants’ submissions

50 Boral claims that the September 2007 application is properly characterised as designated development by operation of s 77A of the EP&A Act, cl 4(1) of the Regulation and cl 14 of Sch 3 of the Regulation. This characterisation means that the First and Second Respondents were required to follow the process for designated development set out in the Regulations. Their failure to do so rendered the development consent granted in November 2007 void.

51 The Applicants reject the Second Respondent’s argument that the development falls within cl 35 of Sch 3 of the Regulation. Clause 35 provides that if the application is for alterations and additions to existing or approved development it will not be considered designated development provided a test of environmental impact is satisfied. It is not disputed that the application would, without cl 35, be for designated development by operation of cl 14 of Sch 3 of the Regulation. The 2007 consent was for rebuilding, not alterations and additions.

(i) consideration of cl 35 by the Council gives rise to a jurisdictional fact

52 Boral argued that characterisation of development as designated development is a jurisdictional fact based on a construction of cl 35 as a two-part test to be undertaken by the primary decision-maker. First, the Council is required to assess whether or not a development can be characterised as alterations or additions. If the development application is characterised as being for alterations or additions, the Council is required to form an opinion as to environmental impacts. Whether the development can be characterised as alterations or additions to an existing or approved development is a question of jurisdictional fact. It is an objective question, satisfaction of which mandates whether or not the Council is required to consider the second question. As a jurisdictional fact, the Court is able to and must undertake the task of characterising whether the application was for alterations or additions.

53 The statutory framework including cl 4 of the EP&A Act and Regulation does not suggest that the Council has complete discretion to decide that development described in Pt 1 of Sch 3 of the Regulation is not designated development by making a declaration in Pt 2 of Sch 3 of the Regulation. Contrary to the Second Respondent’s submissions Pallas Newco does not support the Applicant’s assertion that a consent authority has complete discretion to categorise development. Clause 36 specifies matters that must be taken into account by the Council when forming its opinion which is an indicator of the limits upon the Court’s power.

54 Cemex similarly submits that whether or not a development application is for designated development, in this case whether cl 35 applies, is a jurisdictional fact. Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 is authority for the proposition that whether or not an EIS is required to be submitted is a jurisdictional fact. This is because the Council’s power to grant consent is conditioned by the submission of a valid EIS when it is required by the legislation. Therefore the issue of whether the development application lodged by the Second Respondent is for alterations or additions is a question of fact open to the Court’s inquiry.

(ii) The development application cannot be characterised as being for alterations/additions because it is an application for rebuilding

55 Boral claims that the development application lodged by the Second Respondent cannot be characterised as alterations or additions because what was proposed was the rebuilding of a concrete batching plant including construction and the on-going use of a wastewater detention and sewage treatment facility. The development consent was granted for rebuilding in such terms. Firstly, the proposition that alteration or addition to an earlier and existing consent (in this case, the 1978 consent) is a sufficient characterisation for the purposes of cl 35 has been rejected in Gordon & Valich Pty Ltd v Council of the City of Sydney [2007] NSWLEC 780 and Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48. Rather there must be alterations and additions to an existing development. Secondly, alterations and additions cannot occur to a land use because uses can only be intensified or expanded rather than altered or added to. Again there must be alterations and additions to an existing development. Thirdly, Thomas v Pittwater Council [2003] NSWLEC 19 is authority for the proposition that there cannot be alterations or additions when there is no existing structure that is to be altered or added to. Fourthly, other statutory provisions in the EP&A Act distinguish between rebuilding on the one hand and alterations and additions on the other, see s 107(2) of the EPA & Act and cl 43 and 44 of the Regulation.

56 Cemex also argues that the development proposed cannot, in the ordinary meaning of the word, be considered as alterations or additions. Instead the Second Respondent proposed in substance rebuilding in its development application rather than alterations and additions. North Sydney Municipal Council v Pielor Pty Limited (1981) 43 LGRA 184 and Thomas v Pittwater Council recognised rebuilding as a process distinct from alterations and additions.

(iii) The Council did not properly determine if the alterations/additions proposed significantly increase the environmental impacts of the total development

57 If the Court finds that the development application was for alterations and additions, Boral argues the test of environmental impact within cl 35 was incorrectly applied. The Council failed to adequately address whether or not the alterations and additions would significantly increase the environmental impacts of the total development compared with the existing or approved development by reference to the mandatory considerations listed in cl 36. The Council did not turn its mind to the question as required and in any case there was insufficient evidence before it to form an opinion one way or the other. The existing environment (which had been recognised as containing significant wetlands) was not adequately assessed nor was the potential state of the environment if development was to go ahead. Conditions for mitigation of any detrimental effects were not considered until after determination of the September 2007 application had occurred. Boral emphasises that the proper construction of the test required Council to assess the actual existing environment as it actually was in 2007 rather than what it may have been had the 1978 consent been fully exploited. Boral relies on R v Connell; ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 for the proposition that due to the legal requirements of cl 35 and cl 36 not being understood or addressed by Council, the Council opinion was not validly formed if at all. Consequently Boral claims that because the opinion mandated by cl 35 was not formed or was formed by applying an incorrect legal test, the consent is invalid.

58 Boral emphasised that only material referred to in the minutes of the Council meeting can be regarded as being considered by the Councillors. The Council committee’s report was before the Council on 20 November 2007. Also referred as attachments to the minutes were four documents being the three submissions by way of objection to the May 2007 application and the Second Respondent’s response to these objections. This did not include the September 2007 application as lodged by the Second Respondent on 24 September 2007 which included the revised SEE and accompanying plans or the May 2007 Water Cycle Management Study which identified the existence of significant wetlands. The Council committee’s report did refer to cl 35 but not cl 36 which lists relevant considerations for the determination of environmental impacts. Although the decision of the Court of Appeal in Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 would support the proposition that all material in 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 states that although material may be considered as being in possession, this does not mean it is presumed to be taken into account when the decision is made.

59 Boral also argued that the absence of any draft conditions of consent before the Council meeting is indicative of the fact that the Council did not collectively consider cl 36, specifically subclause (c), which requires the Council to consider mechanisms through which the environmental impact of the development can be mitigated. Conditions of development consent were not addressed until the Notice of Determination was issued on 5 December 2007.

60 In applying cl 35 and cl 36 of Sch 3 of the Regulation, the Council had to first characterise the application as alterations and additions. It did not characterise the development this way because the terms of the consent were for “rebuilding”. Alternatively if the application was for alterations and additions, the Council had to form an opinion about the impacts of the proposed alterations and additions and it did not. Secondly, the material before the Council did not enable it to form such an opinion particularly in light of the matters under cl 36. Any presumption about what can be considered as before a Council was displaced by the minutes (which are in evidence) of what occurred at the meeting. The minutes do not evidence the Council forming an opinion under cl 35 of Sch 3. There is no evidence of any material before the Council on 20 November 2007 to direct the Councillors’ attention to cl 35 or cl 36 of Sch 3. The inference to be drawn is that the Councillors did not have their attention drawn to the critical matters in cl 36 of Sch 3.

61 Cemex similarly argued that the Council did not satisfactorily address whether or not the alterations or additions significantly increase the environmental impacts of the total development compared with the existing or approved development. Council is required by cl 36 to form an opinion on this question. Cemex claims that Council’s opinion was not validly formed because the mandatory considerations provided in cl 36 were not properly assessed as demonstrated by the minutes of the meeting. Cemex relies on several cases that demonstrate that the effect of a failure to form a required opinion under the legislation renders consent void (R v Connell; ex parte Hetton Bellbird Collieries Ltd (No 2), Weal v Bathurst City Council (2000) 111 LGERA 181, Currey v Sutherland Shire Council (1998) 100 LGERA 365).

(iv) The development application is not for alterations/additions because the 1979 consent was spent (Cemex only)

62 Cemex argues that the development proposed by the Second Respondent cannot be properly described as alterations and additions for the purposes of cl 35 as there is no longer an existing or approved development on the land which can be altered or added to. Once the site ceased to be used as a concrete batching plant in 1988 or 1989 and the conditions of the 1978 development consent were no longer met, development of the site required a new application. Specifically condition 4 of the 1978 consent requiring measures being taken to arrest and contain any water run-off cannot be met by the proposal to discharge water into the now-existing wetlands. Similarly condition 3 which requires the construction of buildings on the site to be given building approval is no longer capable of being met given that the statutory scheme of building approval no longer exists. This is the concept of spent consent recognised in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 and Auburn Council v Nehme (1999) 106 LGERA 19.

(i) consideration of cl 35 by the Council is not a jurisdictional fact

63 On the approach to construction of cl 35, the clause must be read as a whole not in the two stages advocated by Boral (that is, firstly is the proposal for alterations and addition and, secondly, whether these have a significant impact). The proper approach is for the whole clause to be considered so that the Council has to determine in its opinion whether the alterations and additions are likely to have a significant impact.

64 Determining whether or not the application was for alterations or additions without a significant increase in environmental impacts pursuant to cl 35 is not a determination of a jurisdictional fact. Therefore, the Court is unable to determine for itself whether such characterisations are correct unless there is a claim that the consent authority’s determination was infected by jurisdictional error). The Applicants do not assert that the Council demonstrated Wednesbury unreasonableness, failed to take relevant considerations into account or took irrelevant considerations into account. Instead the Second Respondent states that both Applicants claim incorrectly that the determination is a decision reviewable as of right because they are jurisdictional facts.

65 The Second Respondent relies on Timbarra for the proposition that where a discretionary power is vested in a decision-maker, and it must be satisfied or reach an opinion as to a matter in exercising that discretion, Parliament is unlikely to have intended that any part of that opinion be treated as a jurisdictional fact. Because cl 35 requires an opinion to be formed by the consent authority as to whether the alterations or additions significantly increase environmental impacts in order to amount to designated development then the characterisation as alterations or additions and whether there is a significant increase in environmental impacts should not be considered as a question of jurisdictional fact.

66 The Second Respondent also relies on the comments of Spigelman CJ in Pallas Newco which list certain positive and negative factors indicating a factual reference in a statutory provision either is or is not a jurisdictional fact. Applying the analysis of Spigelman CJ, the Second Respondent claims that a consideration of the textual indicia show that the facts required by cl 35 do not give rise to a jurisdictional fact which would enable the Court to seek to review the opinion of the Council formed pursuant to that clause.

67 The Second Respondent recognises that the only jurisdictional fact is whether the development is defined as designated development and that question is answered solely by determining the existence of the formation of the opinion required by cl 35. This is because the characterisation as designated development is a determination of a fact which “must exist independently of, and be objectively determined prior to, the exercise of the power…by the decision-maker” (Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 158 LGERA 324 at [21]). It is not contested by Boral or Cemex that such an opinion that the development was not designated development was formed by Council and there is evidence on the Council file and in the Council minutes to support this finding (Boral and Cemex do contest that the opinion was formed).

(ii) The development application can be characterised as being for alterations/additions

68 Assuming that the question of whether the September 2007 application was for alterations or additions is a jurisdictional fact (which the Second Respondent denies), the Second Respondent argues that the Court should find that the application is properly characterised as being for alterations or additions under cl 35 and therefore not an application for designated development.

(iii) The Council did properly determine if the alterations/additions proposed significantly increase the environmental impacts of the total development

69 The Second Respondent submits the formation of the opinion required by cl 35 is satisfied in the circumstances and therefore the development cannot be properly characterised as designated development. The Second Respondent relies on the SEE which accompanied the September 2007 application as evidence that there would be little, if any, difference in the environmental impact between the development approved in the consent and that for which consent was given in 2007. This is because the Second Respondent proposed to comply with all the conditions of the 1978 consent, it proposed to cap concrete production, it proposed to reduce the silo’s height which was erected in 1982 and subsequently dismantled and it proposed to install a new wastewater management system. The only change that the Second Respondent proposes to the site is the replacement of structures. The use as a concrete mixing plant is not a new one and therefore resumption of production is not part of the alterations or additions proposed so is not relevant to assessing an increase in environmental impacts.

70 The Second Respondent relied on the presumption that material in the possession of the Council will, generally, be treated as being in the possession of the Councillors and material in the Council file may be regarded as having been considered by Councillors. Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 is relied upon for the proposition (per Pearlman J at 194) that:

the material from which the state of mind of the Council can be inferred is not limited to what occurred at the Council meeting, or the content of material actually or constructively before the Council in relation to the application subject of Council’s decision.

71 Also in addressing a question required by law, explicit reference to the statute or instrument posing the question is not necessary (Hill v Woollahra Municipal Council (2003) 127 LGERA 7 per Hodgson JA at [53]).

(iv) 1978 consent was not spent (Cemex only)

72 The Second Respondent rejects the submission of Cemex that the 1978 consent no longer operates and cannot form the basis of any alterations or additions to development. The Second Respondent submits that the 1978 consent approved use of the land for concrete mixing rather than consent for the buildings which require separate building approval. Therefore the dismantling of the buildings, namely the silo, does not impact on whether the consent granted in 1978 continues to operate.

73 The removal of the plant and equipment did not prevent the continued use of the site for concrete mixing because of evidence that such plant and equipment was initially added to improve efficiency rather than make production possible. The structures essential for the production of concrete remain on site (that is, the concrete slab and storage bins) and require no further approval. The fact that any further building would require development consent under the EP&A Act rather than building approval as anticipated in the 1978 consent is of no moment and merely reflects a change in the legislative requirements. The Second Respondent denies that the toilet facilities were removed but even if they were this did not mean that the use as a concrete mixing plant ceased and could no longer be carried out in accordance with the 1978 consent.

74 The Second Respondent also submits that compliance with condition 4 of the 1978 consent is not breached if the previously constructed wetlands are no longer used for drainage due to their environmental value. Instead Condition 4 is a requirement specifying an outcome rather than a process and the method of compliance is left to the discretion of the user of the land. The new drainage system is intended to be the new method of compliance.

Finding

75 Before deciding the jurisdictional fact issue raised, it is necessary to construe cl 35 within the context of the Regulation and the Act as the parties have made conflicting submissions on this issue. Boral has argued that there is a two step process in the construction of the clause (par 52). Cemex submitted the clause as a whole requires a finding of jurisdictional fact because that finding is a precondition to the power of the Council to grant consent (par 54). The Second Respondent argues that the clause should be read as a whole and no jurisdictional fact arises other than whether an opinion was in fact formed (par 63).

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 decision-making 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.

(ii) whether satisfaction of opinion by Council under cl 35 is a jurisdictional fact

77 The Applicants contend that the requirement to form the opinion under cl 35 is jurisdictional so that the Court can itself consider whether the opinion was formed correctly on the evidence before it. They also argued that the Council failed to form the necessary opinion. It is first useful to consider the general principles which have been enunciated in relation to the identification of jurisdictional fact.

78 The Second Respondent relies on Timbarra (Spigelman CJ at [42], [44] and [89]) for the proposition that where a discretionary power is vested in a decision-maker and it must be satisfied or reach an opinion as to a matter in exercising that discretion, Parliament is unlikely to have intended that any part of that opinion be treated as a jurisdictional fact. In Timbarra, the applicant sought a declaration that a development consent granted by a Council was invalid. In granting approval for the extension and modification of an existing gold mine the Council was required to consider, pursuant to s 77 and s 5A of the EP&A Act, whether there was likely to be a significant affect on threatened species, populations or ecological communities or their habitats. Section 5A of the Act sets out factors which “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”

79 On appeal one of the issues was whether a species impact statement (SIS) was required pursuant to s 77(3)(d1) was a question of jurisdictional fact which required the court to determine if there was likely be a significant affect on threatened species. Principles identified by Spigelman CJ (Mason P and Meagher JA concurring) relevant to determining jurisdictional fact included:

1. “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”

(at [42]).

2. “The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power”

(at [44]).

3. “A factual reference in a statutory formulation relating to the instigation of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself”

(at 65).

4. The next matter which suggests that the factual reference under consideration is intended to be jurisdictional is that, within s 77(3)(d1) itself, no distinction is drawn between the phrase "is critical habitat" and the phrase, relevant to this case, "is likely to significantly affect threatened species" etc. … Whether or not a development is proposed to occur on critical habitat is entirely a matter of objective fact…

(at [61]).

5. “The purpose of the legislative scheme is of considerable significance in determining the issue before the Court. …
6. “The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that parliament did so intend”

(at [89]).

7. “Another factor, relevant to determining the intention of parliament, is the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that parliament did not intend to cause inconvenience, although it can do so, and often has. Was it the intention of parliament to invalidate a development application which was not accompanied by a species impact statement when, on an objective test, it should have been?”

(at [91]).

80 His Honour concluded that the finding required by s 77(3)(d1) of whether the development was likely to significantly affect threatened species was a jurisdictional fact. It was for the court to decide whether on the evidence before it there was likely to be a significant affect on threatened species.

81 In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 the High Court considered whether a development application was for “special industry” which was a type of development prohibited by the relevant development plan. The Commission assessed the proposed development and determined that the development was “general industry” and not “special industry” and therefore the concurrence of the Council and the Minister was not required for consent to be granted. Gleeson CJ, Gummow, Kirby and Hayne JJ (Gaudron J agreeing on the issue of jurisdictional fact) held that the relevant section did “not define the criterion of operation as based on the opinion of the relevant authority as to the classification of the development” (at [33]). The section was not expressed in terms of “the satisfaction or opinion of the relevant authority as to a state of affairs” but stipulated “in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent” (at [34]). The characterisation of the development as either general or special industry was held to be a question of jurisdictional fact.

82 In Pallas Newco the issue was whether the determination that a development was permitted with consent or prohibited by the relevant LEP was a jurisdictional fact. Under the relevant LEP, the development proposed was permissible with consent if it could be properly characterised as a “drive-in take-away establishment”. Consent had been given by a local Council on the basis that the development was for a “drive-in take-away establishment”. This determination was overturned by Talbot J who found that the application was not for such a development (and was therefore prohibited). Spigelman CJ (Mason P and Handley JA agreeing, Sheller JA and Cripps AJA agreeing on the issue of jurisdictional fact) stated at [19]:

The issue before this Court is whether the characterisation of a proposed development in an environmental planning instrument under the EP&A Act 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

83 Deciding whether characterisation is “so fundamental to the operation of the legislative scheme” is a decision as to whether characterisation is a jurisdictional fact. At [30]-[52] Spigelman CJ identified positive indicators of jurisdictional fact in the context of characterisation of a development as being prohibited or permitted with consent.

1. Where a prohibited use has been enacted by Parliament, the legislation has a rigid purpose to prevent development despite any opinion of Council. Further, “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” (at [32]).

2. The existence of “provisions of the Act which increase the flexibility of the legislative scheme in specific circumstances” after the fact has been established suggest that those provisions “operate on the assumption that a prohibition on use means what it says” (at [45]).

3. Repeating an indicator stated in Timbarra at [44], “[T]here 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” (at [46]).

84 At [53]-[66] Spigelman CJ identified indicators against a finding of jurisdictional fact:

1. “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…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”. … 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”.

(at [56] and [62])

2. “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”

103 Whether material on a council file can be considered as before the councillors, as held in Schroders, was not referred to in GPT. In this case I am considering whether the Council has formed an opinion under cl 35 the existence of which opinion is a jurisdictional fact about an important matter under the EPA Act of whether the amended development application is to be considered as designated development. This case is considering a different issue to that in Gee, Schroders and Centro which were judicial review proceedings determining, inter alia, whether relevant mandatory considerations had been taken into account by Councillors as a whole exercising their planning functions. There was more evidence in those cases of the decision making processes of the Council. The formation of the opinion in cl 35 goes to the jurisdiction of the Council to further determine the September 2007 application other than as designated development. I consider that the reliance by the Second Respondent on a presumption that the councillors have read the file in the absence of any evidence of what the Council did apart from what appears on the file does not overcome by that presumption the inference to the contrary.

104 The Applicants have discharged the onus of establishing that the Council therefore failed to form the requisite opinion under cl 35 and that error gives rise to invalidity of the consent as the formation of that opinion was necessary to enable the September 2007 development application to be considered as other than designated development. In the absence of that opinion the development application was for designated development as the development was otherwise within the description of concrete works in cl 14 Sch 3 of the Regulation, and the necessary processes required by the EP&A Act were not followed in the granting of development consent. This ground of challenge is successful. That finding can give rise to a declaration that the consent is invalid, as found in cases such as R v Connell, Weal and Currey. The issue therefore arises once again of whether an order can or should be made under s 25B of the Court Act.

(iii) whether 1978 consent spent (Cemex)

105 Cemex argued that the 1978 consent was spent and could not therefore be the subject of an application for alterations and additions such as the September 2007 application. The concept of a consent being “spent” I do not consider arises under the EP&A Act once a development consent has been substantially commenced. The 1978 consent was granted under the Local Government Act 1919 and there is no issue raised suggesting that it could not continue with the passage of the EPA Act in 1979. The authorities relied on by Cemex are Pioneer Aggregates, a House of Lords decision that was referred to in Nehme in the Court of Appeal by Handley JA (Meagher and Beazley JJA concurring). In Nehme the issue was whether there had been abandonment of existing use rights, a quite different circumstance to this case. Handley JA held that a consent could not be extinguished by abandonment at [24]. He cited Pioneer Aggregates in support of this finding at [22]. This aspect of the case does not support the submission of Cemex that the 1978 development consent was spent and could not be relied upon by the Second Respondent as the basis for the September 2007 application. Handley J in Nehme otherwise held that a consent could not be extended beyond the life of the planning instrument it was granted under. In this case the 1978 consent was granted under the Local Government Act 1913 and continued to operate after the EP&A Act came into force in 1979. Nehme is not addressing that circumstance. The fact that the legislative regime changed, with appropriate transitional provisions, does not result in extinguishment or abandonment of that consent.

106 Further, the fact that an application for what would have been building approval under the Local Government Act 1913 as stated in condition 3 of the 1978 consent must now be sought under the EP&A Act does not change the status of the 1978 development consent. It is simply the case that a different statutory mechanism is required in order to give effect to condition 3. While Cemex has also relied on an alleged non compliance with condition 4 of the 1978 consent in relation to the previously constructed wetlands I do not consider that submission has any relevance to the argument of whether that consent is spent.

107 It is also clear from the evidence of Mr Hall that the 1978 development consent was being used from the time of the purchase by him of the business Big River Readymix Concrete in 1979 or 1980 up to 1989 when the silo was moved elsewhere. It was used thereafter until 2005 for storage of material with the filling and emptying of bins. Mr Cameron’s evidence is that he leased the James Creek site to Mr Hall form 1977 to June 2005 and it was used for that period for the activities being conducted on the site by Mr Hall. Mr Lawry’s affidavit evidence (par 17(v)) is further support for the type of activity taking place on the site as he was employed by Mr Hall between 1988 and 2004 and worked there. This evidence suggests that the evidence of Mr Peter that the James Creek site was not used after Big River Concrete moved to Yamba in 1989 is not correct. The evidence of Mr Avard (par 17(iii)) of what is required to continue the concrete batching activity on the site in the absence of the current development consent being implemented, that is no new silo, suggests the activity of concrete batching can be easily recommenced. This ground of challenge fails.

Issue 3 - The development application was a wholly new application rather than an amended application for development consent (Boral/Cemex)

108 As identified in par 76 above, whether a development application is for amendments or alterations is an issue that arises in this case in relation to cl 55 of the Regulation. A separate ground of challenge is raised by both Applicants that the September 2007 application was not for alterations and additions but rather was for a new development. Consequently the September 2007 DA was not able to be accepted under cl 55 of the Regulation and could not be validly approved by the Council.

109 Clause 55 of the Regulation provides:

55 What is the procedure for amending a development application?

(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

…

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

Applicants’ submissions

110 Boral and Cemex argue the Council was without power to accept the amendment of the May 2007 application in September 2007 under cl 55 of the Regulation. This is because the application is properly characterised as a wholly new application. A similar finding was made in Radray Constructions v Hornsby Shire Council (2006) 145 LGERA 292. The September 2007 application provided for a different type of use of the land to what has been proposed in May 2007 and was accompanied by a new SEE, subtitled “Rebuilding of Concrete Batching Plant Structure and Associated Works on Lot 5 DP 1093910 Jones Creek Road, Maclean”. The Applicants contend that because cl 55 was not validly invoked, the procedure prescribed by the Act and Regulation for a new application needed to be followed. The failure to follow the prescribed procedure renders the consent granted void.

111 Further arguments that the application could not be validly considered as an application for amendment and alterations made in relation to cl 35 are identified above in par [55] and [56] and should also be considered. Those arguments focus particularly on the fact that while the application was for alterations and additions, the development approved by the Council was described in the development consent as being for rebuilding. Further there are textual indicators in other parts of the EP&A Act, relating particularly to existing use provisions, which differentiate between additions and alterations and rebuilding.

Second Respondent’s submissions

112 The Second Respondent submits that there is nothing in cl 55 constraining the power of the consent authority to agree to an amendment or variation of the development application. Any decision to accept an amended application pursuant to cl 55 is not a jurisdictional fact which is capable of review.

113 Assuming that the question of whether the application is properly characterised as an amending application rather than a wholly new application is one of jurisdictional fact (which is not pressed by the Applicants in any event), the Second Respondent submits that the Court should find that the application was an amending application and thus the power of the Council conferred by cl 55 was validly exercised. The Second Respondent denies Boral’s claim that the power of amendment is limited to one which only permits an amendment that does not effect a significant change but in the alternative submits that the amending application does not effect a significant change. The only constraint on the exercise of the power to amend is that there must be acceptance by the Council and that the amendment must occur before the development application is determined.

Finding on issue 3

114 These are judicial review proceedings in which the merits of a particular decision of a Council cannot be reviewed. The Applicants’ primary argument is that the acceptance of the Second Respondent’s application to amend the development application in September 2007 was beyond power. Precisely how this ground of challenge can arise as a ground of administrative review is not clear from the Applicant’s submissions. Reliance on the decision in Radray by the Applicants is misconceived as the judge in that case was sitting in Class 1 merit appeal proceedings in which it stood in the Council’s shoes. Her Honour had to determine whether the Court exercising the functions of the consent authority should allow the proposed amendment of a development application. Under s 39(2) of the Land and Environment Court Act 1979 (the Court Act), the Court had the same functions and discretions as the Council whose decision was on appeal. The function of the judicial officer was different to that I must exercise in these judicial review proceedings.

115 The other decisions of Pielor and Thomas relied on above in relation to submissions on issue 2 also do not assist the Applicants’ case. In Pielor (1981) a Council order made pursuant to the now repealed Local Government Act 1918 specified building standards for new buildings. Alterations made to buildings erected prior to the order were exempted from the operation of the order. Samuels JA (Moffit P and Reynolds JA concurring) held that the aspect of development in question was not an alteration within the meaning of the order and the Local Government Act 1918. His Honour considered alteration should be given a limited meaning as otherwise buildings not in conformity with the standards could be too readily erected. This older case has limited application as it considered now-repealed statutory provisions. Clause 55 of the Regulation has to be considered within the current statutory framework, which is quite different. Similarly, Thomas was a decision of a judge in Class 1 proceedings as to whether an application to modify a development consent under s 96 sought consent for substantially the same development as that for which development consent was originally granted. The other decisions referred to of Valich and Starray are also decisions of this Court sitting in Class 1 proceedings so that the functions the Court was exercising are different to those exercised in these proceedings.

116 The only possible limitation on the exercise of that discretionary power in cl 55 could be that the Council cannot entertain an original application. As submitted by the Second Respondent the only basis on which the Court could review the Council’s decision to allow the amendment under cl 55 is if the acceptance by the consent authority gave rise to a finding of jurisdictional fact, which is not the argument propounded. It could be otherwise reviewable on the ground that it was manifestly unreasonable which argument is not pressed in this case. The terms of cl 55(1) do not fetter the Council’s discretion in any way, simply stating that an amendment can be made at any time with the agreement of a council. Under subsection (2) if a change to the development results from the proposed amendment or variation the application to amend must include written particulars indicating the nature of the changed development. There is broad discretion provided to a Council to accept amendments under cl 55. There is no obligation on a Council to accept an amendment, and the decision is entirely a matter for the exercise of the Council’s discretion. There is no criteria specified in the clause, so that how the Court could arrive at its own conclusion as to whether the changes were an amendment or variation is not confined.

117 In relation to other matters raised, the description within the development consent issued by the Council as for rebuilding, rather than for alterations and additions as the development application stated, is to emphasise form over substance. Consent was granted for what the Second Respondent sought in its September 2007 development application. It is necessary to consider the substance of what consent was sought for and for which development consent was granted, as referred to in Gordon & Valich Pty Ltd per Preston J at [18].

118 In relation to the reliance on distinctions drawn in relation to existing use provisions elsewhere in the EP&A Act, I agree with the Second Respondent’s submissions that these provide no basis to read down the wide terms of cl 55 of the Regulation.

119 For completeness, given the evidence relied on by the Second Respondent, I should note that I do not consider the amendments proposed gave rise to a new development application. The affidavit evidence of Mr Hall (par 12) describes the activities conducted on the site, until 1989 when the silo was removed and thereafter with storage of material on and off until 2005. The lawful activity of concrete batching for which consent was granted in 1978 continued on for the site until 1989. The amendments relate largely to the replacement of a previously existing concrete batching plant and to a new waste water management facility to preserve the existing wetlands.

Issue 4 - There was a failure by Council to accord procedural fairness to Boral when amending application (Boral)

Boral’s submissions

120 The Council was required by the common law rules of procedural fairness to seek comment from Boral in relation to the Second Respondent’s application to amend its development application. Boral had a legitimate expectation of being accorded such involvement based on the Council’s previous conduct which went beyond the statutory requirements of the EP&A Act and Regulation. This included an invitation to Boral to make submissions to the Council in respect of a review of the Council’s determination in 2005 to reject a development application under s 82A lodged by the Second Respondent. Relying on Hornibrook v Willoughby City Council [1996] NSWLEC 214 and Porter v Hornsby Shire Council (1989) 69 LGRA 101, Boral contends that the Council’s power to amend an application pursuant to cl 55 of the Regulation was exercised without Boral having an opportunity to make submissions on whether that power of amendment could or should be exercised. This was unfair as Boral had a legitimate expectation that it would be notified of any such application, relying on Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

121 In Hornibrook (1996) an adjoining property owner had been notified of the development application and made an objection. There was then a site inspection by the Council’s committee at which the applicant and his consultant attended and addressed the committee. Following this the applicant made a further written submission. The applicant for the development consent then lodged amended plans with the Council. The amended plans were not notified to the applicant. The matter was then determined at a Council meeting and the development consent was issued. The applicant had not been notified of the meeting at which consent was granted. Stein J approached the case by asking what the common law duty to act fairly required in the particular circumstances. According to Stein J, the critical question was whether the applicant had been given an adequate opportunity of presenting his submissions so as to ensure procedural fairness.

Second Respondent’s submissions

122 The Second Respondent submitted that the failure to notify of the determination of the application to amend does not amount to a denial of procedural fairness and the Council’s actions did not give rise to any legitimate expectation that it would be notified. Written notification of such decisions to specified persons is required by cl 88 of the Regulation. Written notice was not required to be given to Boral.

123 The Second Respondent submits that Boral was advised of the amendment to the application, relying on a letter dated 6 November 2007 sent by the Council to Boral stating that the amended application was to be considered at the Council committee meeting. The letter attached the Council committee’s report dated 13 November 2007 setting out the application as modified. This report, which recommended refusal of the application, referred to the Council officer’s recommendation of refusal. The letter made Boral aware that the Council could approve the proposal notwithstanding any recommendation of its officer. The decision to approve the September 2007 application was made at a further meeting on 20 November 2007. An objection made on behalf of Boral was lodged at the meeting. Boral has not been denied procedural fairness because it declined to exercise any entitlement it had to be heard in connection with the September 2007 development application.

Finding on issue 4

124 Boral submitted in oral submissions that this ground of challenge arose only if I did not find in its favour on issue 1. I have upheld that ground of challenge. It continued to rely on this ground in its submissions in reply however. The argument focussed on the principles enunciated in Teoh as supporting a claim that it had a legitimate expectation of being notified by the Council of the application by the Second Respondent for amendment of the May 2007 application.

125 Firstly in relation to the challenge on the grounds of procedural fairness said to be supported by Porter v Hornsby (1989). Since that decision there have been a number of amendments to the EP&A Act and Regulation concerning the requirement to notify and advertise development applications, several are considered above in relation to issue 1. I concluded there was a failure to comply with these in relation to the September 2007 development application. The relevance of Porter in light of these changes, which provide a detailed statutory regime for notification is reduced. In these circumstances I do not consider a separate ground based on procedural fairness based on Porter arises. If Hornibrook (1995) is correctly decided the question remains whether the Applicant was given an adequate opportunity to present submissions to the Council. Boral did have such opportunities on several occasions including in relation to the September 2007 application before this was determined by the Council, so that there is no procedural fairness arising in these circumstances.

126 Secondly, in relation to whether any legitimate expectation arose over and above the statutory requirements required in the EP&A Act and Regulation, the only letter relied on to support this submission in doing so was the letter dated 6 November 2007 from the Council concerning the consideration of the amended application by the Council committee. That letter was additional to any statutory requirement to notify anyone about that amended development consent. That letter alone does not give rise to any ground of challenge based on legitimate expectation. The written submissions referred to the opportunity given to Boral in 2005 to comment on a s 82A review application also, but I do not consider that fact adds greatly to the case argued by Boral.

127 No case from this Court has been found to support this argument, only the principles in Teoh were relied on. In Teoh a High Court majority of Mason CJ, Deane and Toohey JJ (Gaudron J agreeing, McHugh J in dissent) held an applicant for a permanent resident visa had a legitimate expectation that the Minister determining the application would act in conformity with a treaty that Australia had ratified but had not yet been enacted into Australian domestic law. Boral as an objector under the EP&A Act is in a quite different situation to the applicant in Teoh on whom the Minister had a direct impact. No denial of a legitimate expectation to be informed by the Council of an application to amend an existing development application of the Second Respondent arises on the facts of this matter. This ground of challenge fails.

Issue 5 - Council failed to address zonal objectives as required by the relevant LEP (Cemex)

Legislation

128 Clause 31(5) of Part 3 (Rural zone provisions) of the LEP provides:

(5) Except as otherwise provided by this plan, consent must not be granted to the carrying out of development on land to which this plan applies unless the consent authority is satisfied that the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

129 The land subject to these proceedings is zoned Rural (Agricultural Protection). Clause 31 sets out the aims and objectives of the zone:

1 Aim of zone

The primary aims of this zone are to protect, reserve and encourage the use of land in this zone for agriculture and uses compatible with agriculture.

2 Objectives of zone

The particular objectives of this zone are:

(a) to conserve the productive potential of prime crop or pasture land, and

(b) to provide for new forms of agricultural development, and changing patterns of existing agricultural development, and

(c) to ensure that commercial farming is not affected adversely by incompatible uses which impair its long term sustainability, and

(d) to avoid degradation and alienation of prime agricultural land, and

(e) to enable rural tourism, which does not adversely affect the productive potential of the land, and

(f) to exclude urban development on all prime crop or pasture land, and

(g) to restrict the subdivision of prime crop or pasture land, and

(h) to encourage conservation in farming practices, and

(i) to control the clearing of vegetation and encourage the retention of vegetation

Cemex’s submissions

130 Clause 31(5) of the LEP prohibits the Council from approving development applications unless they are satisfied that the proposed development is consistent with the objectives of the zone. Satisfaction of the matter is a condition precedent to the grant of consent. Cemex argues that the Council did not have sufficient information to assess the consistency of the development with the particular objectives applicable to the zone. An EIS would have been required by the Council to make an adequate assessment. The attention given in the Council report is inadequate because, despite the Council committee’s reference to zonal objectives, the consent authority is required to make the assessment itself (Currey v Sutherland Shire Council).

Second Respondent’s submissions

131 The Second Respondent submits that the evidence discloses that there was sufficient material before the Council at the meeting of 20 November 2007 enabling it to be satisfied that the development was consistent with zone objectives. The material relied upon includes:

(i) The Council committee’s report dated 13 November 2007

(ii) The Council officer’s report dated 23 July 2007

(iii) The SEE (as amended in September 2007)

(iv) The letter of objection from Minter Ellison dated 7 June 2007 which served to bring Council’s attention to the necessity that it consider the zone objectives

132 As the development consent was issued that suggests that cl 31(5) was satisfied in the Councillors’ minds.

133 In order for the Court to reject the Council’s finding (by implication) that the development was consistent with the objectives it must do so as a question of law rather than merit. This requires the Court to hold that the finding of the Council was so unreasonable that no reasonable planning authority properly understanding their duties would have formed such an opinion.

Finding on issue 5

134 Cemex argues that there has been a failure to comply with a condition precedent to the grant of development consent, as referred to in Currey, Manly Council v Hortis (2001) 113 LGERA 321 and Franklins Ltd v Penrith City Council [1999] NSWCA 134. Those decisions have been considered on many occasions in this Court including by me most recently in Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274. I adopt my summary of those decisions as set out in [92]-[96] of that judgment. The provisions of cl 31(5) are in similar terms to LEP provisions which the Court has found require satisfaction by a Council before development consent can be granted. Failure to be satisfied about whether the development is consistent with the objectives of the rural zone within which the development is proposed is a condition precedent to the granting of development consent. Cemex has the onus of proof of establishing that there was error in the Council’s decision making process.

135 There is reference to zone objectives in the Council committee’s report dated 13 November 2007 which was before the Councillors on 20 November 2007 when development consent was granted. The report recommended the refusal of development consent because, inter alia, the proposal was found to be “not consistent with the aims or objectives of the 1(a) Rural (Agricultural Protection) Zone”. The proposal was found not to be inconsistent with any of the specific objects of the zone specified in the LEP in table 1 of cl 31 which were referred to in the report. The report stated that the proposal was inconsistent with the primary aim of the zone also set out in the table 1 of cl 31 of the LEP because it did not constitute an agricultural use and the impact on agricultural uses in surrounding land had not been adequately determined. The Council committee’s report does not refer specifically to cl 31(5) of the LEP. There is no specific finding by the Council in its resolution to approve the September 2007 application that there is compliance with cl 31(5). Nor would one be expected given that Councils do not generally give reasons for their decision to grant development consent. Whether the Council was satisfied in relation to cl 31(5) must be inferred from the evidence.

136 The issue then arises of whether on the evidence there was sufficient material before the Council to enable an inference to be drawn that it was able to satisfy itself about compliance with the zone objectives as required by cl 31(5). As identified above in par xx of the chronology the material before the Council on the day of the decision to grant development consent consisted of a Council report recommending refusal and the four documents attached to that report. These were the three letters of objection from Connell Wagner on behalf of Boral, Minter Ellison on behalf of Rinker Australia and Helen and Stephen Robertson as well as Laterals response to the objections on behalf of the Second Respondent. The letter from Minter Ellison referred specifically to cl 31(5) as not being satisfied.

137 The Second Respondent has relied on the presumption identified in Schroders that Councillors may be presumed to be aware of the contents of the Council’s file. This would include the contents of the amended SEE lodged in support of the amended development application in September 2007 which refers to the application of cl 31(5) of the LEP. The Council committee’s report that was before the Council on 20 November 2007 did not refer specifically to cl 31(5) but did refer to the aims and objectives of the zone (see par 135). One of the letters of objection also referred to the need to comply with that clause.

138 A number of judicial review cases in this Court considered whether councillors can be considered to be aware of a relevant provision in their LEP such as cl 31(5) which is a condition precedent to the decision to grant development consent. Cases such as Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130 per Pearlman J at [25] have held that councillors can be assumed to have knowledge of the planning instruments they administer. Each case must depend on its own facts. For example, in GPT the issue of whether councillors could be presumed to be aware of the relevant provisions of a draft LEP as it applied to a particular development application arose. The presumption that they were aware was displaced by the evidence of what was before the Council on that day and the history of the matter before the Council.

139 In this case the councillors could be presumed to be aware of the provisions in the LEP including cl 31(5), as there is evidence which suggests that they were made generally aware of that clause when the May 2007 application was considered by them and also when the September 2007 application was considered. They were on notice of objections raised to the granting of consent on the basis that the clause was not complied with, which views they were not bound by. The evidence of what was before the Council is sufficient to enable the inference to be drawn that the councillors were aware of the need to be satisfied about cl 31(5) before granting development consent on 20 November 2007. Nor is the Council bound by the views of its officers. In light of the evidence of what was before the Council, it is not necessary to consider whether the presumption in Schroders that documents on the council file can be presumed to be within the knowledge of the councillors arises. This ground of challenge is not successful.

Conclusion

140 As the Applicants have been partly successful in their respective challenges to the grant of development consent by the Council on 20 November 2007 on Issues 1 and 2, the issue then arises of whether an order can or should be made under s 25B of the Court Act. I must consider the application of that section under s 25E of the Court Act. The parties need to consider this judgment and make further submissions on that matter shortly.

CITATION:	Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81
PARTIES:	APPLICANT Boral Resources (Country) Pty Ltd (40229 of 2008) Cemex Australia Pty Ltd (40339 of 2008) FIRST RESPONDENT Clarence Valley Council SECOND RESPONDENT Gavan Avard
FILE NUMBER(S):	40229 of 2008; 40339 of 2008
CORAM:	Pain J
KEY ISSUES:	JUDICIAL REVIEW :- whether development application properly notified - whether development advertised development - whether notice requirements of DCP could be dispensed with DESIGNATED DEVELOPMENT :- whether alterations and additions were designated development - whether such characterisation a question of jurisdictional fact - whether council formed an opinion about no significant environmental impact DEVELOPMENT APPLICATION - whether amendment of development application was for new development PROCEDURAL FAIRNESS - whether failure to notify objector of decision to accept amendment to development application a breach of procedural fairness - whether legitimate expectation of further notification DEVELOPMENT APPLICATION - whether failure by consent authority to consider zone objectives as condition precedent to granting of development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 77A, s 78A , s 79A, s 107 Environmental Planning and Assessment Regulation 2000 cl 5, cl 43, cl 44, cl 55, cl 86, cl 87, cl 88, cl 89, cl 90, Schedule 3 Land and Environment Court Act 1979 s 25B, s 25E, s 39(2) Local Government Act 1913 (repealed) Maclean Local Environmental Plan 2001 Part 3
CASES CITED:	Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 158 LGERA 324 Auburn Council v Nehme (1999) 106 LGERA 19 Caldera Environment Centre Inc v Tweed Shire Council [1992] NSWLEC 82 Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Doueihi v Canterbury City Council (2003) 133 LGERA 138 Franklins Ltd v Penrith City Council [1999] NSWCA 134 GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 Gee v Council of the City of Sydney (2004) 137 LGERA 157 Gordon & Valich Pty Ltd v Council of the City of Sydney [2007] NSWLEC 780 Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 Hill v Woollahra Municipal Council (2003) 127 LGERA 7 Hornibrook v Willoughby City Council [1996] NSWLEC 214 Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 King v Great Lakes Council (1985) 58 LGRA 366 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Manly Council v Hortis (2001) 113 LGERA 321 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 North Sydney Municipal Council v Pielor Pty Limited (1981) 43 LGRA 184 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 Porter v Hornsby Shire Council (1989) 69 LGRA 101 R v Connell; ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48 Thomas v Pittwater Council [2003] NSWLEC 19 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Trenwith v Sutherland Shire Council [2005] NSWLEC 143 ULV Pty Ltd v Scott (1990) 19 NSWLR 190 Weal v Bathurst City Council (2000) 111 LGERA 181 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 Woolworths Ltd v Wyong Shire Council (No 2) [2005] NSWLEC 607
DATES OF HEARING:	1 December 2008 2 December 2008 28 January 2009 29 January 2009
DATE OF JUDGMENT:	28 May 2009
LEGAL REPRESENTATIVES:	APPLICANT - 40229 of 2008: Mr M Craig QC with Mr M Seymour SOLICITORS Boral Limited - Legal APPPLICANT - 40339 of 2008: Mr T Hale SC SOLICITORS Minter Ellison FIRST RESPONDENT Submitting appearance SECOND RESPONDENT Mr J Robson SC with Ms S Duggan SOLICITORS Huegill & Associates