Botany Bay City Council v Remath Investments No 6 Pty Ltd

[2000] NSWCA 364

Reported Decision: (2000) 50 NSWLR 312
(2000) 111 LGERA 446

New South Wales

Court of Appeal

CITATION:	Botany Bay City Council v Remath Investments No. 6 Pty Limited ACN 001 804 673 [2000] NSWCA 364 revised - 30/04/2007
FILE NUMBER(S):	CA 40123/98; 40580/00
HEARING DATE(S):	07/12/00
JUDGMENT DATE:	15 December 2000
PARTIES :	Botany Bay City Council (Appellant) Remath Investments No. 6 Pty Limited ACN 001 804 673 (Respondent)
JUDGMENT OF:	Handley JA at 1; Stein JA at 2; Fitzgerald JA at 20

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	10465/97; 10466/97
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	T.S. Hale SC / J.Clyne (Appellant) C.W. McEwen (Respondent)
SOLICITORS:	Houston Dearn O'Connor (Appellant) Aitken McLachlan & Thorpe (Respondent)
CATCHWORDS:	Development application - when "made" - Environmental Planning and Assessment Act 1979 s 77 - Environmental Planning and Assessment (Savings and Transitional) Regulation clause 11 - D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 1997 Environmental Planning and Assessment (Savings and Transitional) Regulation
CASES CITED:	Ace Waste Pty Ltd v Brisbane City Council (1999) 1 QdR 233 Amacon Pty Ltd v Concord Municipal Council (Unreported 2 December 1987) Brisbane City Council v Mainsel Investments Pty Ltd (1989) 2 QdR 204 Byron Shire Business for the Future Inc. v Byron Council (1994) 84 LGERA 434 Crowley v Hastings Municipal Council (1982) 4 APAD 115 Fraser Island Defenders Organisation Ltd v Hervey Bay City Council (1983) 2 QdR 82 Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council (Unreported 8 July 1981) Helman v Byron Shire Council (1995) 87 LGERA 349 Holiday Villages (Byron Bay) Pty Ltd v Byron Council Land and Environment Court, 40177 of 1994, unreported, 28 February 1995 King v Great Lakes Shire Council (1986) 58 LGRA 366 Reeson v Warringah Shire Council (Unreported 16 October 1990) Royal Motor Yacht Club v Sutherland Shire Council (Unreported 26 June 1987) Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52 Wharf II Pty Ltd v Sydney City Council (Unreported 15 February 1991) Woolworths Ltd v Bathurst City Council (Unreported 24 September 1987)
DECISION:	Appeal allowed. Each party to bear its own costs of the appeal. Current remediation consent to be set aside and the remediation development application to be refused.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40580/00
CA 40123/98
LEC 10465/97
LEC 10466/97



HANDLEY JA
STEIN JA
FITZGERALD JA

FRIDAY 15 DECEMBER 2000

BOTANY BAY CITY COUNCIL v REMATH INVESTMENTS NO. 6 PTY LIMITED ACN 001 804 673

JUDGMENT

1   HANDLEY JA: I agree with Stein JA and Fitzgerald JA. 2   STEIN JA: This appeal focuses on the proper construction to be given to s 77 of the Environmental Planning and Assessment Act 1979 (the unamended Act) in its form prior to the Environmental Planning and Assessment Amendment Act 1997. The amended Act relevantly commenced on 1 July 1998. The Environmental Planning and Assessment (Savings and Transitional) Regulation included relevant transitional regulations, the most pertinent for this appeal being cl 11. 3 Although Fitzgerald JA has set forth the relevant provisions of s 77 which need be considered, it is convenient to quote the section of the unamended Act.

77. (1) A development application may be made only by
(a) the owner of the land to which that development application relates; or

(b) any person, with the consent in writing of the owner of the land to which that development application relates.

…

(3) A development application shall

(a) be made to the consent authority;

(b) be made in the prescribed form and manner;

(c) where the application is not in respect of designated development, contain, or, as may be provided by the regulations, be accompanied by, such information and particulars as may be prescribed;

(d) where the application is in respect of designated development, be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant; and

(d1) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

(e) be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto) or, where a fee is prescribed, by that prescribed fee.

…

4 A number of observations may be made about s 77(1) and (3). First, the issue of the ownership of the land to which the development application relates is dealt with in s 77(1) separately from the requirements which relate to the making of the development application in ss (3). 5 During the 1980s and early 1990s there were a number of decisions in the Land and Environment Court which considered the requirement for an owners’ consent under s 77(1) including the time at which the consent of the owner must be forthcoming. [1] 6   As to the latter aspect, the most direct authority is Amacon Pty Ltd v Concord Municipal Council wherein Hemmings J said at page 11:

However, as the lack of the owner’s consent can be cured at any time up until the determination of the application (see Woolworths Ltd & Ors v Bathurst City Council (Unreported, Land and Environment Court 24 September 1987), Crowley v Hastings Municipal Council (1982) 4 APAD 115, I decline to make any order which would prevent the further hearing of the appeal.

7 It has not been suggested that the cases in the Land and Environment Court relating to the timing of the provision of an owner’s consent to a development application have been incorrectly decided. 8 This appeal, of course, raises a different issue which relates to the compliance by the respondent with subsection (3) of s 77. The provision emphasises the making of the application to the consent authority. It speaks of a development application being ‘made’. As Fitzgerald JA has observed, cl 11 of the transitional regulation refers to ‘any development application made, but not determined’. This points us directly to s 77(3) of the unamended Act. 9 Section 77(3)(b) provides that a development application shall be made ‘in the prescribed form and manner’. The ‘manner’ of the making of the development application is to be found in ss (3)(c), (d), (d1) and (e). 10 I do not see the word ‘manner’ as devoid of content or as mere surplusage. In the context of the various requirements of ss (3) it means the way in which something is done, the mode of action or procedure (see Shorter Oxford English Dictionary). The subsections mentioned mark out how a development application must be made. 11 There is, in my opinion, no particular distinction between the reference in the subclauses to documents accompanying the development application and the prescribed form in which a development application is to be made. The words ‘accompanied by’ are used as a matter of convenience because an environmental impact statement (EIS) or species impact statement (SIS) is normally a lengthy document and cannot conveniently be included within the development application. Rather, they ‘accompany’ it in a separate document. 12 It is relevant to note that ss (3)(c) provides an alternative for non-designated development. The development application itself may ‘contain’ the prescribed information and particulars or be ‘accompanied’ by it. 13 I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application. 14 That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subparas (c), (d) or (d1) or the fee under subclause (e) of s 77(3). 15 For the purposes of this case, the construction which I favour means that the EIS has to substantially comply with the requirements of the unamended Act prior to the appointed day (1 July 1998) for it to qualify under cl 11 as a development application made but not determined under the unamended Act. 16 ‘Made’ in cl 11 of the transitional regulation must mean ‘made’ in accordance with s 77 of the unamended Act and this includes substantial compliance with s 77(3)(d). 17 It is common ground that it was not so made in that the development application was not accompanied by an EIS which substantially complied with the unamended Act as at the appointed day. 18 In my view, a development application cannot be seen as ‘made’ unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete. 19 It follows from what I have said that I agree with Fitzgerald JA and the orders which he proposes. 20 FITZGERALD JA: On 4 June 1997, Remath Investments (No.6) Pty Ltd lodged two Development Applications with Botany Bay City Council. Development Application No.97/0719 (the “remediation development application”) sought the Council’s consent to the demolition of a building and remediation of contaminated land. Development Application No. 97/0718 (the “construction application”) sought the Council’s consent to the construction of a container terminal, warehouse and distribution centre. 21 At the time, s 77(1) and (3) of the Environmental Planning and Assessment Act 1979 (the “unamended Act”) provided:

“ Making of development applications
77. (1) A development application may be made only by -
(a) the owner of the land to which that development application relates;
or
(b) any person, with the consent in writing of the owner of the land to which that development application relates.
….
(3) A development application shall -
(a) be made to the consent authority;
(b) be made in the prescribed form and manner;
(c) where the application is not in respect of designated development, contain, or, as may be provided by the regulations, be accompanied by, such information and particulars as may be prescribed;
(d) where the application is in respect of designated development, be accompanied by an Environmental Impact Statement in the prescribed form prepared by or on behalf of the applicant; and
(e) be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto) or, where a fee is prescribed, by that prescribed fee.
…”.

22 The requirements with respect to an Environmental Impact Statement (“EIS”) for the purpose of s 77(3)(d) of the unamended Act were specified in clauses 50 to 52 of the Environmental Planning and Assessment Regulation 1994 (the “unamended regulation”). 23 Subsection 91(1) of the unamended Act required a development application to be “…determined by:

(a) the granting of consent to that application, either unconditionally or subject to conditions, or

(b) the refusing of consent to that application”.

24   Subsection 96(1) of the unamended Act provided that, where a consent authority [2] had not determined a development application within a specified period “after lodgment of that development application”, it was “… for the purpose only of section 97, … deemed to have determined that application by refusing consent on the date on which that period expire[d].” 25   Subsection 97(1) of the unamended Act provided:

“(1) An applicant who is dissatisfied with the determination of a consent authority with respect to his development application may appeal to the Court within 12 months after … the date upon which that application is deemed to have been determined under section 96(1).”

26 Remath lodged an EIS with its Development Applications which did not satisfy the requirements of s 77 (3)(d) of the unamended Act and the unamended regulation. 27 On 11 August 1997, Remath appealed to the Land and Environment Court against the Council’s deemed refusal of the remediation development application (proceedings 10465 of 1997 - the “remediation consent proceedings”) and the construction application (proceedings 10466 of 1997 - the “construction consent proceedings”). 28 On 16 February 1998, the Land and Environment Court granted consents on the remediation development application (the “initial remediation consent”) and the construction application (the “construction consent”). 29 The Council appealed (the “first appeals”). On 23 December 1998, this Court held that the Land and Environment Court had erred in granting the initial remediation consent and the construction consent. That is no longer in dispute. The Court set aside the Land and Environment Court orders and remitted the proceedings to that Court for redetermination in accordance with this Court’s judgment. That was the order then sought by the Council and Remath did not (and still does not) argue that any other order was appropriate when this Court allowed the first appeals. 30 On 24 December 1999, Remath lodged a supplemental EIS (the “supplemental EIS”) with the Council. The EIS and the supplemental EIS (the “combined EIS”) were publicly exhibited between 9 February and 9 March 2000. 31 In June 2000, the Land and Environment Court permitted Remath to reopen the remediation consent proceedings and to tender the supplemental EIS and associated documents. 32 On 28 June 2000, the Land and Environment Court concluded that the combined EIS satisfied s 77(3)(d) of the unamended Act and the unamended regulations and granted a fresh remediation consent (the “current remediation consent”) on the remediation development application. 33   The Council has again appealed to this Court [3] seeking orders that the current remediation consent be set aside and that the remediation development application be “... determined by refusal of development consent.” 34   The unamended Act was substantially amended by the Environmental Planning and Assessment Amendment Act 1997. At least so far as is presently relevant, the amendments took effect on 1 July 1998. Amendments to the unamended regulation also came into force that day. Remath accepts that the current remediation consent should not have been granted by the Land and Environment Court unless the unamended Act and unamended regulation continue to apply to the remediation development application by virtue of cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation (the “transitional regulation”). [4] 35   Clause 11 of the transitional regulation provides:

“”The unamended EP and A Act 1979 continues to apply to and in respect of any development application made, but not determined It is common ground that the remediation development application had not been “determined” [5] by the consent authority, before the appointed day as if the EP and A Amendment Act had not been enacted.”

(The appointed day was 1 July 1998).

36 Prior to 24 December 1999, the remediation development application was incomplete in that it was not “accompanied by” an EIS which substantially complied with s 77(3)(d) of the unamended Act and the unamended regulations. As this Court determined in the first appeals and Remath no longer disputes, while the remediation development application remained incomplete in that respect it could not provide the foundation for a lawful remediation consent.[6] (According to the Council’s argument, while the remediation development application was not “accompanied by” an EIS which substantially complied with the applicable legislation it could not even have been lawfully refused on the merits by either the Council or the Land and Environment Court although it could (and perhaps should) have been rejected [7]). 37   Contrary to the position which both parties adopted in the first appeals, the primary argument for the Council on this occasion is that the unamended Act and the unamended regulation do not apply in relation to the remediation development application [8] because it had not been “made” before 1 July 1998 within the meaning of cl 11 of the transitional regulation. The Land and Environment Court rejected the Council’s argument and accepted Remath’s submission that the remediation development application had been “made” by 1 July 1998 although it was not “accompanied by” an EIS which substantially complied with s 77(3)(d) of the unamended regulations until 24 December 1999. 38 The essential argument for each party can be briefly stated. According to Remath, a development application was “made” for the purpose of cl 11 of the transitional clause when a development application in the prescribed form was lodged with the Council in accordance with ss 77(a) and (b) of the unamended Act. It is not in dispute that that was done prior to 1 July 1998. According to the Council, a development application was not “made” for the purpose of cl 11 of the transitional regulation until all elements of s 77(3) were substantially complied with. It is not in dispute that that was not until after 1 July 1998. 39 As Remath pointed out, the decision under appeal is consistent with the decision of the present Chief Judge of the Land and Environment Court in Holiday Villages (Byron Bay) Pty Ltd v Byron Council.[9] The decision in Holiday Villages [10] was a sequel to her Honour’s decision in Byron Shire Businesses for the Future Inc. v Byron Council. [11] 40 Section s 77(3)(d1) of the Environmental Planning and Assessment Act required the development application which was the subject of those decisions to be accompanied by a fauna impact statement. That was not done. It was held in Byron Shire Businesses [12] that, in consequence, the Council had no power to determine the development application and the development consent which it had granted was void and of no effect. That decision was consistent with the decisions of this Court in Council of the City of Penrith v Waste Mangement Authority of NSW [13]. It was also consistent with the later decisions of this Court in Helman v Byron Shire Council [14] and on the first appeals. 41 The Land and Environment Court had also held on a number of occasions that non-compliance with a requirement under s 77 of the Environmental Planning and Assessment Act could “.. be cured at any time up until the determination of the application….”. [15] 42   In Byron Shire Businesses, [16] Pearlman J referred to both these principles. Her Honour said: [17]

“In my opinion,.. there is a threshold or intermediate question to be determined before the Council can exercise its power under s 91(1). Is there a development application to be determined? That question must be answered in every case but it is not required to be answered at the time of lodgment. It must have been answered, however, at the time when a consent authority comes to make its determination to grant or refuse consent.
The question is not simply whether a development application in the prescribed form has been made. It is, rather, whether a development application which fulfils the statutory requirements has been made. The statutory requirements are to be found in s 77. If they have not been met, then the Council has no basis for making a determination to grant or refuse consent. The foundation for the exercise of its power is missing, because the development application before it does not comply with the statutory requirements. The Council is not empowered to make a determination under s 91(1). It must reject the development application, not determine it by the refusal of consent (although that may, in practical terms, amount to the same thing).
The process which I have just described has been applied by the Court in class 1 proceedings, where the Court is acting as the consent authority pursuant to its powers under s 39 of the Land and Environment Court Act 1979: see, eg, Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 279.
It is at the time of Council’s consideration of whether or not to exercise its power of determination that the question arises as to whether there is or is not a development application meeting the statutory requirements. It is possible, therefore, for a non-compliance with s 77 to be rectified at any time prior to that determination. If there is a development application which does meet the statutory requirements, then the Council proceeds to a determination by taking into account the matters which s 90 requires it to consider in determining the development application, and it must then proceed to that determination in exercise of its powers under s 91(1).
It follows from the conclusion I have reached that it is not fatal to a development application to be unaccompanied by any document required under s 77 at the time of its lodgment.”

43   After concluding that it had not been reasonably open to the Council, on the material before it, to conclude that there was not likely to be a significant effect on the environment of endangered fauna and that accordingly a fauna impact statement had been required, her Honour continued:[18]

“What, then, is the consequence of my conclusion that the Council’s decision was not reasonably open to it? As I have already said, the determination of whether or not the proposed development will have a significant effect on the environment of endangered fauna is a threshold question. It requires determination in order to determine in turn the question of whether a development application conforms to the statutory requirements of the Environmental Planning and Assessment Act. The Council’s power to proceed to a determination of a development application by granting or refusing consent under s 91 of the Act is predicated upon having before it a development application which complies with the statutory requirements which the Act has imposed, and which are to be found in s 77.
…
… the Council’s determination of the threshold question in a manner not reasonably open to it invalidates the very foundation of the development consent process. The Council could not proceed to exercise its power of determination under s 91 because a pre-condition for the exercise of that power did not exist.
…
… Without a proper determination of the threshold question in those circumstances, a development application which complied with the requirements of s 77 could not exist, and without such a conforming development application, the Council was not empowered to exercise its power of determination of the development application under s 91.
The Council’s determination of the development application was therefore of no effect, and as a consequence the development consent which it granted is void and of no effect.”

44   The development application which was the subject of the development consent which was declared void in Byron Shire Businesses [19] had been lodged on 1 April 1993. The Council’s void development consent was granted on 11 November that year. On 1 July 1994 the Environmental Planning and Assessment Regulation 1980 was amended. Subsequently, a new regulation (the “1994 Regulation”) came into force on 1 September 1994. The judgment in Byron Shire Businesses [20] was delivered on 30 September 1994. The developer sought a declaration that its development application was “… a development application made to the [Byron Council] … on 1 April 1993 ..” and that accordingly it was not “designated development” within the meaning of Sch 3 to the 1994 Regulation. The question thus raised depended upon cl 49 of the 1994 Regulation, which provided:

“49 (1) Development described in Schedule 3 is declared to be designated development for the purpose of the Act .
(2) Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.
(3) References in subclause (2) to Schedule 3 include references to Schedule 3 to the Environmental Planning and Assessment Regulation 1980.”

45   Pearlman J made a declaration that the development application was “… a development application made to the [Byron Council] … on 1 April 1993.” Her Honour said:

“It can be seen from s 77(3) that a number of requirements must be fulfilled. A development application in the prescribed form must be made to the consent authority, and it must be accompanied by a fee and contain or be accompanied by certain information and particulars. If the relevant circumstances exist it must be accompanied by an environmental impact statement or a fauna impact statement or both.

However, all those requirements need not be fulfilled simultaneously. As a matter of practice, they are often fulfilled at different times. ….

What is critical, however, is that, when the consent authority makes its determination, there is in existence a development application which fulfils the statutory requirements. If that has not occurred, then the consent authority has no legal basis for making a determination to grant or refuse consent.

The power of a consent authority to determine a development application is found in s 91(1) of the Act …

….

That power is, in my opinion, predicated on there being a development application which fulfils the requirements set out in s 77(3). If there is no such development application at the time that the consent authority considers whether or not to grant or refuse consent, then the development application is invalid, and a grant of consent in respect of it must as a consequence be void.

In the circumstances which arose in the earlier proceedings there was no development application fulfilling the statutory requirements when the council proceeded to its determination, and consequently the council was not empowered to make that determination. It purported to do so nevertheless, and as a consequence its determination was legally flawed, and the development consent which it purported to grant was void and of no effect.”

46 Despite conclusions that the development application was invalid and (implicitly) had not “become a development application capable of lawful determination by the Council” although it “could become a development application capable of lawful determination by the Council”, her Honour held that it was “ a development application … made … on 1 April 1993.” In her Honour’s opinion, a development application was made when the prescribed form was lodged even if all other requirements under s 77, even payment of the prescribed fee, were disregarded. 47 Whether or not it is technically correct to say that a development application is “invalid” while the requirements of s 77 of the unamended Act are not substantially complied with, references to “invalidity” which can be “cured” are capable of suggesting that a “cure” is retrospective. If a development application in respect of which there has not been substantial compliance with the requirements of s 77 is accurately described as incomplete and ineffective until there is substantial compliance, it becomes obvious that it is only then that a development application is completely or effectively “made”. [21] 48 In my opinion, the language of s 77(3) of the unamended Act requires the opposite conclusion to that reached by Pearlman J in Holiday Villages (Byron Bay) Pty Ltd v Byron Council [22] and the Land and Environment Court in the present proceedings. Where a development application “is not in respect of designated development”, the application must “contain … or … be accompanied … such information and particulars as may be prescribed”. By s 77(3)(d) of the unamended Act, where a development application “is in respect of designated development” it must “be accompanied by” an EIS in the prescribed form. In either case, by s 77(3)(e) the development application must be “accompanied by” the prescribed fee. Subsection 77(3)(b) requires that a development application be “made” not only in the prescribed form but in the prescribed manner. A development application in the prescribed form which is not “made” in the manner prescribed by s 77(3)(c) or (d) and (e) is not “made” in the prescribed manner. 49 There is no rational basis for attributing a different meaning to the word “made” in cl 11 of the transitional regulation from the meaning which the same word bears in s 77(3). 50 In my opinion, the remediation development application was not initially “made” in the prescribed manner because there was no substantial compliance with s 77(3)(d) of the unamended Act and clauses 5- to 52 of the unamended regulation. It was not “made” within the meaning of s 77(3) of the unamended Act and cl 11 of the transitional regulation until 24 December 1999 when the transitional EIS was lodged. 51   Accordingly, I am persuaded that the Land and Environment Court erred in law. 52   The Council’s appeal should be allowed. Each party should bear its own costs of the appeal since the Council accepts that the point now argued before the Court was available on the first appeals if it had then thought of it. Remath did not argue that, if the Court allows the appeal, it should not make the other orders sought by the Council. The current remediation consent should therefore be set aside and the remediation development application should be refused.

**********

END NOTES
1. These include:
Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council (Unreported 8 July 1981
Perrignon J)
Crowley v Hastings Municipal Council (1982) 4 APAD 115
King v Great Lakes Shire Council (1986) 58 LGRA 366
Royal Motor Yacht Club v Sutherland Shire Council (Unreported 26 June 1987 Bignold J)
Woolworths Ltd v Bathurst City Council (Unreported 24 September 1987 Cripps J)
Amacon Pty Ltd v Concord Municipal Council (Unreported 2 December 1987 Hemmings J)
Reeson v Warringah Shire Council (Unreported 16 October 1990 Cripps J)
Wharf II Pty Ltd v Sydney City Council (Unreported 15 February 1991 Cripps J)
Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52
2. The Council was the consent authority : see s 4(1) of the unamended Act.
3. The appeal is limited to questions of law by s 57 of the Land and Environment Court Act 1979.
4. Reference was made in the course of argument to other clauses in the transitional regulation and clause 18 of Schedule 6 of the amended Environmental Planning and Assessment Act. However, it was common ground that the outcome of this appeal depends on the meaning of clause 11 of the transitional regulation.
5. by the Council for the purpose of clause 11 of the transitional regulation before 1 July 1998. If, contrary to the Council’s argument, it was deemed to have refused the remediation development application by s 96(1) of the unamended Act, that deemed refusal was “for the purpose only of section 97”.
6.See also Helman V Byron Shire Council (1995) 87 LGERA 349
7. See Byron Shire Business for the Future Inc. v Byron Council (1994) 84 LGERA 434, 439, 447.
8. Remath did not dispute that, if the Council’s present argument is correct, it would still have succeeded in the first appeals.
9. Land and Environment Court, 40177 of 1994, unreported, 28 February 1995.
10. Land and Environment Court, 40177 of 1994, unreported, 28 February 1995.
11. (1994) 84 LGERA 434.
12. 84 LGERA 434.
13. (1990) 71 LGRA 376.
14. (1995) 87 LGERA 349.
15. Amacon Pty Ltd v Council of the Municipality of Concord - Land and Environment Court, 10541 and 20532 of 1987, unreported, 2 December 1987. See also, for example, Woolworths Ltd v Bathurst City Council Land and Environment Court, 40272/86, unreported, 24 September 1987.
16. 84 LGERA 434.
17. 84 LGRA 434, 439.
18. 84 LGERA 434, 447-448.
19. 84 LGERA 434.
20. 84 LGERA 434
21. Compare the cases dealing with “duly made”: for example, Fraser Island Defenders Organisation Ltd v Hervey Bay City Council (1983) 2 QdR 82; Brisbane City Council v Mainsel Investments Pty Ltd (1989) 2 QdR 204; Ace Waste Pty Ltd v Brisbane City Council (1999) 1 QdR 233.
22. Land and Environment Court, 40177 of 1994, unreported, 28 February 1995.

Revision Reasons
Hyperlinked End Notes added -- 30 April 2007.