Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2)

[2009] NSWLEC 133

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 (No 2) [2009] NSWLEC 133

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 :- finding of failure by Council to advertise development application in accordance with DCP - finding of failure by Council to form an opinion whether alterations and additions to development are designated development

PRACTICE AND PROCEDURE :- whether order should be made under s 25B Land and Environment Court Act specifying terms compliance with which will validate the consent - discretion exercised not to make an order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 79A(2), s103, s 104
Land and Environment Court Act 1979 s 25A, s 25B, s 25C, s 25E

CASES CITED:

Aldous v Greater Taree City Council [2009] NSWLEC 17
Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81
Bungendore Residents Group Inc v Palerang Council & Anor (No 4) [2007] NSWLEC 536
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312
Clark & Davis v Wollongong City Council [2008] NSWLEC 110
Clark & Davis v Wollongong City Council (No 2) [2008] NSWLEC 226
De Haas v Williams [2004] NSWLEC 15
GPT Re Ltd v Wollongong City Council (No 2) (2006) 151 LGERA 158
Johnson v Lake Macquarie City Council (1996) 91 LGERA 331
Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333
King v Bathurst Regional Council [2006] NSWLEC 505
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207
Mid-Western Community Action Group Incorporated v Mid-Western Regional Council & Anor (No 2) [2008] NSWLEC 143
NRS Grout Pty Ltd v Cowra Shire Council [2008] NSWLEC 156
Trenwith v Sutherland Shire Council [2005] NSWLEC 143

DATES OF HEARING:

11 June 2009

 
DATE OF JUDGMENT: 

19 August 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

19 August 2009

40229 of 2008 Boral Resources (Country) Pty Limited v Clarence Valley Council and Anor (No 2)

40339 of 2008 Cemex Australia Pty Limited v Clarence Valley Council and Anor (No 2)

JUDGMENT

1 Her Honour: In two sets of judicial review proceedings commenced by the Applicants (Boral and Cemex) challenging the grant of development consent to the Second Respondent by Clarence Valley Council (the Council) I made two findings that could give rise to a declaration of invalidity of the development consent (Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81 (Boral No 1)). These findings were:

(i) Section 79A(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) applied to the amended development application (DA) the subject of the impugned consent (Boral No 1 at [36]). The DA was not advertised in accordance with Clarence Valley Council Development Control Plan – Development in Rural Zones (the DCP) which was adopted 18 November 2006 so that s 79A(2) had not been complied with (Boral No 1 at [39]).

(ii) Whether alterations and additions are for designated development requires the opinion to be formed under cl 35 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (the Regulation) of “whether the proposed alterations and additions do not significantly increase the impacts of the total development compared to the existing or approved development” (Boral No 1 at [76] and [89]. The comparison was with the “approved development” at its most exploited, not with its actual state of use at the time of the formation of the opinion (Boral No 1 at [91]). However, there was no evidence upon which the Court could be confident that the opinion of the councillors under that clause was in fact formed (Boral No 1 at [102]).

2 As identified in Boral No 1 the Court must consider under s 25E of the Land and Environment Court Act 1979 (the Court Act) whether, instead of declaring the consent invalid, an order ought be made under s 25B of the Court Act suspending the development consent (s 25B(1)(a)) and making orders as provided for in s 25B(1)(b). The Second Respondent argues that orders under s 25B ought be made. Both Applicants oppose the making of orders under s 25B. The Council filed a submitting appearance early in the proceedings and made no submissions save as to costs.

3 The Court has broad power to make orders under s 124 of the EP&A Act which relevantly provides:

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
…
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

Sections 25A-E are within Div 3 of Pt 3 (referred to in s 124(3)) of the Court Act titled “Orders of conditional validity for certain development consents”.

4 Sections 25A-25C of the Court Act provide:

Division 3 Orders of conditional validity for certain development consents

25A Application of Division

(1) This Division applies to:
…
(b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979:
(i) by any other consent authority, and
(ii) in respect of a development application made on or after the commencement of this subsection.
(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.
(3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979.
…

25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:
(a) suspending the operation of the consent in whole or in part, and
(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation):
(a) terms requiring the carrying out again of steps already carried out, or
(b) terms requiring the carrying out of steps not already commenced or carried out, or
(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

25C Orders for validity of development consents

(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order:
(a) declaring that the terms have been substantially complied with, and
(b) declaring that the consent is valid, and
(c) revoking the order of suspension.

(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order:
(a) declaring that the terms have been complied with, and
(b) declaring that the development consent has been validly regranted, and
(c) declaring that the suspended development consent has been revoked, and
(d) revoking the order of suspension.

5 An order under s 25C can be made on the application of a consent authority. The Council has filed a submitting appearance. Its position in relation to the making of orders under s 25B will need to be clarified in light of s 25C.

6 There are also provisions in the EP&A Act which can apply if an order for suspension under s 25B is made. Sections 103 and 104 of the EP&A Act provide:

103 Revocation or regrant of development consents after order of Court

(1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.
(2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.
(3) However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.
(4) No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.
(5) Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.
104 Appeals and other provisions relating to development consents after order of Court

(1) A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979:
(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and
(b) is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders.

(2) A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted:
(a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and
(b) takes effect from the date of the declaration or another date specified by the Court.
Second Respondent’s submissions
(i) Exercise of discretion

7 In relation to the failure to comply with the advertising requirements in the Council’s DCP, the Second Respondent firstly argued that before considering whether s 25B orders ought be made, the Court must consider whether it should exercise the discretion it has to make orders under s 124 of the EP&A Act in relation to the failure to advertise. The reasons for this are:

(i) The Council did notify the original DA in accordance with the DCP;

(ii) The Council received submissions from interested persons as a consequence of the notification of the original DA;

(iii) The amended DA reduced the environmental impact of the proposal;

(iv) Those interested persons who had submitted in respect of the original DA were notified of the amended application; and

(v) The only persons who have indicated an interest in the DA are not persons who are directly impacted on by the development. The persons interested comprise only commercial competitors, a general community interest group, and two residents of the area distant from the operations.

8 Doueihi v Canterbury City Council (2003) 133 LGERA 138 and Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11 which were referred to in Boral No 1 at [40] concerned misleading advertising and are distinguishable on their facts.

(ii) section 25B orders

9 In terms of orders which could be made under s 25B, in Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 Hodgson JA (McColl and Tobias JJA concurring) held at [340] that s 25A(2) of the Court Act applies to any and all steps relating to the grant of development consent which have the potential to render such consent invalid. This can include but is not limited to matters such as the consideration of a DA required under s 79C of the EP&A Act. This is confirmed by the approach of Jagot J in Mid-Western Community Action Group Incorporated v Mid-Western Regional Council (No 2) [2008] NSWLEC 143 (Mid-Western No 2).

10 In this case justice suggests that an order under s 25B ought be made. No error on the part of the Second Respondent has been found, the two errors identified in Boral No 1 are those of the Council. The Council has filed a submitting appearance in the proceedings. The Second Respondent is the “innocent” party. The two errors found by the Court can be the subject of orders under s 25B. The Court should exercise the discretion that it has to make orders under s 25B which are appropriate. The deficiencies in the Council’s decision-making process are capable of remedy in the form of appropriate orders.

Clause 35 of Sch 3 consideration

11 Clause 35 of Sch 3 requires an opinion to be formed in relation to alterations and additions in order to determine if the DA is for designated development. Relevant considerations are:

(i) The requirement to form an opinion under cl 35 is distinct from a s 79C consideration;

(ii) The Council undertook a s 79C consideration and determined that the DA was worthy of approval. The only deficiency in that decision-making process was the failure to form an opinion which would have the effect of categorising the development in a different way under the Act;

(iii) Therefore, the only step that needs to be made to cure the cl 35 consideration is to form that opinion. If the Council forms the opinion no further steps are required in order to render the development consent valid.

Advertising

12 In relation to the requirement to advertise the amended DA, several matters suggest a s 25B order is appropriate as follows:

(i) The Council publicly notified the original DA. It was the amended application which the Council failed to advertise as required by the DCP. The amended application was notified to interested parties, in part because as required by the DCP each person who made submissions in connection with the primary DA was notified of the amended application. Therefore, the requirements of the Council’s DCP have been met in large part.

(ii) Advertising of the amended application under s 25B will enable the Council to consider any further submissions, if any, provided to it and determine whether its opinion as formed under s 79C requires modification or remains current. It is not necessary for the Council to undertake a full s 79C assessment again.

Cemex’s submissions
(i) no development application exists

13 The finding in Boral No 1 at [104] that in the absence of an opinion being formed under cl 35 of Sch 3 to the Regulation, the DA is for designated development means there is now no DA which can be considered at all, applying Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312. There is therefore no DA to which a s 25B order can apply.

(ii) no s 25B order

14 The consideration of an opinion under cl 35 of Sch 3 to the Regulation cannot be divorced from the general assessment required under s 79C. It is not appropriate to make orders under s 25B when the whole of the Council’s assessment under s 79C has to be undertaken again.

Boral’s submissions

15 The issue in this case is what is the appropriate enforcement of a public duty of the Council under the EP&A Act. No order under s 25B should be made. There is authority that s 25B is not available when there is a “complete absence” of power to grant consent to a DA, but consent is issued: Aldous v Greater Taree City Council [2009] NSWLEC 17 at [101] per Biscoe J; NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156 at [150] per Sheahan J; Bungendore Residents Group Inc v Palerang Council (No 4) [2007] NSWLEC 536 at [42] per Pain J; GPT Re Ltd v Wollongong City Council (No 2) (2006) 151 LGERA 158 at [53] per Biscoe J. This may be a complete answer to the duty of the Court to consider making such an order under s 25E of the Court Act as there is no order that could be made under s 25B that would “perfect” the consent that was issued.

16 An order under s 25B should only be made if something can be done by the consent authority that will result in validity of otherwise invalid actions. Hence the order is made “instead” of an order declaring invalidity. No order under s 25B of the Court Act should be made in the circumstances of this case because:

(i) As the community lost the opportunity to provide input and comment on the environmental assessment due to the failure by the Council to advertise the amended DA in accordance with its own DCP, this is a systemic problem infecting the assessment as a whole and this speaks against s 25B being an appropriate remedy, Clark v Wollongong City Council (No 2) [2008] NSWLEC 226.

(ii) The formation of an opinion under cl 35 of Sch 3 to the Regulation is not a mere procedural step or component of what was an otherwise valid environmental assessment under s 79C of the EP&A Act. The formation of that opinion is a critical anterior step that must be taken for a consent authority to know what environmental assessment needs to be subsequently carried out. The Council’s failure to take that preliminary step means nothing that occurred with respect to the environmental assessment of the development that was approved was valid. No order should be made under s 25B(2) to perfect these fundamental defects in the process.

(iii) There is no evidence before the Court that would establish that it is inevitable that the Council would form the opinion under cl 35. Accordingly, it would be inappropriate to “remit” the question of whether the Council would form that opinion by an order under s 25B(2) of the Court Act because this might not result in the “perfection” of the consent; in other words the Council may decide the environmental impacts are increased.

(iv) As the development the subject of the consent remained “designated development” until an opinion was formed under cl 35 (which opinion was not formed), the approval to that development contrary to the EP&A Act has meant that all objectors to the DA have now lost the important opportunity of appealing the consent to this Court under s 98(1) of the EP&A Act (or of participating in an appeal under s 97(4) of the EP&A Act). These rights cannot be reinstated under s 25B(2) of the Court Act meaning that such an order would be inappropriate.

Finding

17 Two issues in addition to whether a s 25B order ought be made have been raised in submissions and I will consider these first.

(i) Exercise of discretion under s 124 EP&A Act (Second Respondent)

18 The Second Respondent submitted that the Court should exercise its discretion not to make an order for invalidity in light of its broad discretion under s 124 in relation to the failure to notify the amended DA because of the particular circumstances of this case whereby the original DA was publicly advertised although the amended DA was not. The amended DA was notified to all the objectors to the original DA. That submission has to overcome the general thrust of cases decided by this Court and the Court of Appeal that advertising requirements for DAs must be upheld as these are part of the important community participation provisions in the EP&A Act, see Johnson v Lake Macquarie City Council (1996) 91 LGERA 331, De Haas v Williams (2004) 132 LGERA 195, Trenwith v Sutherland Shire Council [2005] NSWLEC 143, Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207, King v Bathurst Regional Council (2006) 150 LGERA 362 and Arrawarra Beach. I do not therefore consider it is appropriate to exercise my discretion by granting no relief in relation to the failure to comply with the public advertising requirement of the DCP. The issue of whether an order under s 25B should be made in relation to this breach of s 79A(2) of the EP&A Act remains.

(ii) no development application (Cemex)

19 The submission of Cemex that there is no DA as a consequence of my findings at [104] in Boral No 1 is incorrect. That the absence of the opinion of lack of environmental significance under cl 35 of Sch 3 to the Regulation means the development is designated and can only proceed with an environmental impact study (EIS) does not follow from my finding. That finding was made in the context of discussing the importance of the formation of the necessary opinion under cl 35. To the extent it is being interpreted as a final conclusion that the Second Respondent’s DA is for designated development then it was either too broadly phrased by me and I clarify now that was not intended by me, or the finding is being taken out of context. I consider that the Second Respondent has a DA for alterations and additions to an existing consent before the Council and now this Court which can be the subject of orders under s 25B of the Court Act. The application of Remath does not arise. As submitted by the Second Respondent, if this submission was correct no applicant for development could rely on cl 35 of Sch 3 to the Regulation until first lodging a DA with an EIS as if the DA was for designated development pending a determination by a council under cl 35 of Sch 3 that it was not. That would place an onerous and potentially unnecessary burden on those seeking to rely on cl 35 of Sch 3 to the Regulation.

(iii) orders under s 25B

20 Turning to whether orders under s 25B ought be made, judges of this Court have had to consider whether such orders ought be made on many occasions. In Midwestern No 2 Jagot J outlined at [16] the scheme of Div 3 of Pt 3 of the Court Act once the consent is suspended under s 25B on terms outlined by the Court.

21 In Kindimindi the Court of Appeal held that a more expansive approach to the steps preliminary to the granting of development consent as referred to in s 25A(2) should be applied than had previously been the approach of some judges of the Court. Tobias JA stated (McColl JA concurring) that s 25B is not limited to invalidity arising from preliminary steps in the decision-making process. His Honour stated in obiter at [31] - [32]:

Section 25B(2) sets out in a non-exclusive manner the type of terms which can be imposed for the purpose of validating the consent, and which include terms requiring the carrying out again of steps already carried out or the carrying out of steps not already carried out. But importantly, 25B(2) is not confined in any way to terms involving the carrying out of preliminary steps referred to in sub-paragraphs (a) and (b). It includes in sub-paragraph (c) terms requiring acts, matters or things to be done or omitted that are different to acts, matters or things required to be done or omitted by or under this Act or any other Act. Any other Act would include the Environmental Planning and Assessment Act.
It seems to me that s 25B(2)(c), for instance, would authorise the imposition of a term requiring a consent authority to reconsider if it has already considered the matter, or to consider for the first time if it has failed to consider the matter, any one or more of the matters required to be considered by, for instance, s 79C of the Environmental Planning and Assessment Act. That, of course, does not mean that in every case where a purported consent is invalid upon the basis that s 79C has not been complied with, that the court will exercise its discretion to suspend the consent and to require the consideration or reconsideration of a s 79C matter.

22 Hodgson JA supported an interpretation of s 25A(2) as including technical breaches capable of being rectified at [21]. As noted by Biscoe J in Aldous at [99] that interpretation is narrower than the range of matters that Tobias JA considered appropriate in his Honour’s obiter comments.

23 Kindimindi has been considered in several judgments. Sheahan J in Clark v Wollongong City Council (No 2) at [18] – [26] has usefully outlined decisions made before and after Kindimindi. His Honour has correctly outlined the position that ultimately each case must depend on its own facts (at [24] – [26]). I adopt [18] – [26] of his judgment.

24 Clark v Wollongong City Council [2008] NSWLEC 110 was a successful challenge to a grant of development consent on the basis of a denial of procedural fairness as a result of the council’s failure to notify the applicants of a DA for construction of new residential premises. The failure to notify was the result of a council policy of relying only on Land Titles Office advice as to change of ownership of rateable properties and not on any separate advice, in this case a letter from the applicant’s solicitor advising of the change of ownership. In Clark v Wollongong City Council (No 2) Sheahan J considered whether it was appropriate to make an order under s 25B. Sheahan J declined to do so on the basis that the whole of the merit assessment process had miscarried and would have to be redone.

25 Two decisions have considered s 25B since Clark v Wollongong City Council (No 2). NRS Group Pty Ltd v Cowra Shire Council concerned three approvals for development at a site in Cowra. After approval, the council requested that the consents be surrendered on the basis that the council was uncertain as to their legal validity. The applicant sought declarations that the consents could be relied upon and a cross-claim by the council sought declarations that the consents could not be relied on. The council argued that the consents granted were void on various grounds including a failure by the council to notify all adjoining and adjacent property owners of the DA, a failure by the council to consider relevant matters and on the basis that council lacked power to grant consent as the development was prohibited. Sheahan J held at [139] that one of the consents to further subdivide the site was invalid because of an absence of power in the council to approve it. The relevant land was properly characterised as prime agricultural land. At [150] his Honour refused to make an order under s 25B because such an order should not be made to cure a development consent granted without power.

26 Aldous was a challenge to a development consent granted for a residential beachfront property. The council had resolved to approve the DA subject to appropriate conditions being formulated in relation to eight issues. A council officer proceeded to formulate 44 conditions which were attached to a Notice of Determination issued by that officer. The applicant claimed that the consent was void on numerous grounds including that the council resolution was void for uncertainty applying the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734. Further the Notice of Determination was invalid because the council officer did not have statutory power to issue a notice which was not in accordance with the council’s resolution. These two grounds of challenge to the grant of consent were successful. Biscoe J concluded at [101] that a s 25B order was not appropriate because this would have had the effect of “permitting an order for conditional validity of a development consent where there is a complete absence of power” on the part of the council officer to grant it. The appropriate course was for the council to establish for itself what the conditions should be by considering the DA afresh.

27 At [99] Biscoe J identified in the context of a failure to consider a s 79C matter, that an order under s 25B ought be made if it will (emphasis added) validate the consent. A failure to consider a mandatory relevant matter such as a matter under s 79C which requires that assessment to be undertaken again may result in a different conclusion being formed by a consent authority. Further, as a matter of discretion his Honour notes that if a s 79C evaluation is undertaken again this may lead to refusal because consideration of s 79C matters require a balancing of all relevant matters. Other decisions where this has also been noted are set out at [100] and include Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [85], Belmore Residents’ Action Group Inc v Canterbury City Council (2006) 147 LGERA 226, Bungendore Residents Action Group Inc v Palerang Council (No 4) and Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 219; Clark v Wollongong City Council (No 2) at [26]. Some of the difficulties with the making of a s 25B order in relation to the carrying out of a further assessment under s 79C are apparent in the matters that had to be considered afresh in Mid Western No 2.

28 The decision whether to make an order under s 25B must depend on the facts of each case. In this case the failure is not in relation to a s 79C assessment, which was before the Council in the form of a Council officer’s report (dated 23 July 2007). I will consider firstly the invalidity which arises because I held that the Council failed to form the opinion required by cl 35 of Sch 3 to the Regulation in relation to the alterations and additions to the amended DA so that that issue remains to be determined by the Council. As found at [102] in Boral No 1 there was no material on the Council’s file which could give rise to an inference that the opinion had been formed. Matters the Council is required to consider in forming the opinion in cl 35 are specified in cl 36 in some detail. Clause 36 of Sch 3 to 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.

29 One matter I took into account in Boral No 1 as part of my analysis of whether the requisite opinion under cl 35 had been formed was that there were no conditions of consent before the Council in September 2007, when it granted development consent, which would have enabled it to weigh up the environmental significance of the proposal as required under cl 36 compared to the activities conducted previously pursuant to the 1978 development consent (at [102], see also the chronology set out at [3] in Boral No 1). I also take into account that the only matter recognised by the Council officer’s report (prepared in relation to the earlier May 2007 DA) as adequate under the s 79C assessment was the proposed waste water system. The DA was subsequently amended and then considered at the September 2007 meeting when development consent was granted. These factors are relevant to my consideration of whether an order under s 25B ought be made as they inform an understanding of the extent of the further assessment the Council would have to undertake in relation to cl 35 of Sch 3 of the Regulation if an order under s 25B is made.

30 I also agree with the submissions of Boral at par 16(ii) that the formation of the opinion was not a procedural step or component of an otherwise valid environmental assessment under s 79C. The formation of that preliminary step is necessary to inform the nature of the assessment required under s 79C. To the extent there was an assessment under s 79C that assessment was not made in the context of the formation of the necessary opinion under cl 35 that the amended DA was not designated development. I do not consider the formation of the opinion under cl 35 is to be considered as separate from the s 79C evaluation so that the existing s 79C assessment can simply stand regardless of what opinion is reached in relation to cl 35 if an order under s 25B were to be made. That is another relevant factor to consider in determining whether an order ought be made.

31 Where the defect in the decision-making process which may be the subject of a s 25B order involves the assessment of subjective matters about which minds may differ and which may result in a different outcome from that reached previously by a council, as in this case, such an order does not necessarily result in the breach the subject of these proceedings being validated. I agree with Biscoe J’s observations to that effect in Aldous in the context of the consideration of s 79C matters and as observed more generally by Sheahan J in Clark v Wollongong City Council (No 2). The breach in relation to cl 35 of Sch 3 is not a technical one but requires a substantive assessment to be undertaken by the Council. I therefore consider I should exercise my discretion by refusing to make an order under s 25B in relation to terms relating to the formation of the opinion required by cl 35 of Sch 3 to the Regulation. There is no utility in making an order under s 25B in relation to the public advertisement of the amended DA in accordance with the DCP in light of this finding.

32 As no order is to be made under s 25B final orders declaring the DA invalid should be made. I consider I should make the declaration in the terms sought by both Applicants in their Class 4 applications, being a declaration that the development consent granted by the First Respondent on 5 December 2007 to Development Application No. 2007/0371 in respect of an application to rebuild a concrete batching plant structure and associated works of Lot 5 in Deposited Plan 1093910 is void and of no effect.

33 I have yet to hear argument on costs, if any, and note that the Council which filed a submitting appearance except as to costs may wish to be heard on that matter. The parties should advise the Court by 4pm Friday 21 August 2009 whether they wish to present any costs argument.