Boydtown Pty Ltd v Minister for Planning and Public Spaces

[2023] NSWLEC 47

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Boydtown Pty Ltd v Minister for Planning and Public Spaces [2023] NSWLEC 47

Hearing dates:

17, 18 November 2022
31 March 2023, 14 April 2023 (written submissions)

Date of orders:

03 May 2023 and 10 May 2023

Decision date:

03 May 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

Orders at [231] and [234]

Catchwords:

ADMINISTRATIVE LAW – judicial review – planning proposal to amend Bega Valley Local Environmental Plan 2013 (NSW) – extension of time to commence proceedings under r 59.10(2) UCPR – Gateway Determination subject to conditions – decision to endorse planning proposal – decision to approve revised planning proposal – meaning of planning proposal – Minister’s power to make Gateway Determination under s 56 EPA Act – whether decision is ultra vires – whether relevant considerations taken into account – whether time for complying with condition of Gateway Decision renders planning proposal ultra vires – whether denial of procedural fairness

Legislation Cited:

Bega Valley Local Environmental Plan 2013 (NSW)

Civil Procedure Act 2005 (NSW) ss 56, 58

Environmental Planning and Assessment Act 1979 (NSW) ss 3.31(3), 3.34, 3.35(1), 3.36(2); ss 53, 54, 55, 56, 58, 59(2) (former numbering)

Government Sector Employment Act 2013 (NSW) ss 20, 22, 23, 25, 26

Land and Environment Court Act 1979 (NSW) ss 16, 20

Uniform Civil Procedure Rules 2005 (NSW) rr 59.3, 59.10

Cases Cited:

Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118

Blatch v Archer (1774) 1 Cowp 63; 98 ER 969

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50

Council of the City of Ryde v Azizi (2021) 248 LGERA 204; [2021] NSWCA 165

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23

DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022

Duarte v Waverley Council [2022] NSWLEC 53

Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213

Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26

Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA

Mangoola Coal Operations v Muswellbrook Shire Council [2023] NSWSC 262

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; (2002) 123 LGERA 367; [2002] NSWCA 288

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97

Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171

Pheeney v Doolan (No 2) [1977] 1 NSWLR 601

Prince Alfred College Inc v ADC [2016] 258 CLR 134; [2016] HCA 37

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396

Texts Cited:

M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2021)

Category:

Principal judgment

Parties:

Boydtown Pty Ltd (First Applicant)
Boydtown Pastoral Pty Ltd (Second Applicant)
Minister for Planning and Public Spaces (First Respondent)
Bega Valley Shire Council (Second Respondent)
Secretary, Department of Planning and Environment (Third Respondent)

Representation:

Counsel:
A Galasso SC with J Mack (First and Second Applicants)
K Lindemann (First and Third Respondents)
A Pearman (Second Respondent)
Solicitors:
Harris Freidman Lawyers (First and Second Applicants)
Department of Planning and Environment, Legal Services (First and Third Respondents)
Madison Marcus (Second Respondent)

File Number(s):

2021/236704

Publication restriction:

Nil

Judgment

Introduction

Outcome

Proper parties

The decisions challenged

The Minister’s 31 August 2017 Gateway Determination

The 19 May 2021 Endorsement Decision

Council’s 18 August 2021 approval decision

Relief sought and grounds of review

Relief sought

Grounds against the Minister in relation to the Gateway Determination

Grounds against the Secretary in relation to the Endorsement Decision

Grounds against Council in relation to Council’s approval decision

Issues for determination

As against the Minister

As against the Secretary

As against Council

Statutory framework governing planning proposals and gateway determinations

Council’s proposed rezoning of the land, and the Lyon Group planning proposal

Agreed background to the decisions under review

Evidence

The Northern Councils E Zone Review: October 2015 Final Recommendations Report

The January 2017 Planning Proposal

Minister’s 31 August 2017 Gateway Determination

Minister’s 17 August 2018 alteration to the Gateway Determination

Council’s report on “Application of Zonings to the Boydtown Property”

Council’s March 2019 Planning Proposal

Communications between Mr Tull of Council and Mr Stevens of the Lyon Group in August and September 2019

Mr Tull’s summary of the 23 August 2019 meeting between Council and the Lyon Group

WSP Boydtown Masterplan: Biodiversity Constraints Assessment

Council’s January 2021 request for an extension of time to complete the planning proposal

Council’s May 2021 Planning Proposal

Briefing Note to Ms Lees prior to the Endorsement Decision

Recommendation to Council prior to its 18 August 2021 meeting

Witnesses

Mr Stevens

Mr Van Bracht

Ms Thomson

Mr Stevens’ second affidavit

Ms Lees

Issue of leave pursuant to UCPR r 59.10 to commence proceedings out of time challenging the Minister’s Gateway Determination

Applicable principles

Consideration

Whether it arises to consider Grounds 1 and 2 against the Minister

Whether the Gateway Determination was ultra vires because there was no planning proposal under s 55 sufficient to enliven the Minister’s power under s 56(2) (Ground 1)

Whether the Minister’s Gateway Determination decision was ultra vires because it was incapable of constituting a determination under s 56(2)(a) (Ground 2)

Whether Ms Lees failed to take into account relevant considerations in making the Endorsement Decision (Ground 3)

Jurisdiction

Relevant considerations

Matters taken into account

Whether Council failed to take into account mandatory relevant considerations in making its approval decision (Ground 4)

Whether Council’s approval decision was ultra vires for failure to comply with the time requirements of the Gateway Determination (Ground 5)

Whether Council’s approval decision was ultra vires for denying the applicants procedural fairness (Ground 6)

Consideration of the existence of a duty of procedural fairness on the part of Council

Disposition of Ground 6

Conclusion

Orders

Judgment

Introduction

1. By summons filed on 19 August 2021, Boydtown Pty Ltd and Boydtown Pastoral Pty Ltd (the applicants) commenced judicial review proceedings challenging what are said to be three separate decisions arising from a planning proposal to amend the Bega Valley Local Environmental Plan 2013 (NSW) (BVLEP 2013) to include, zone and apply minimum lot size standards to land at, amongst other places, Boydtown, near Eden on the south coast of New South Wales (the January 2017 Planning Proposal).

2. On 18 November 2022, the applicants were granted leave to file in Court an amended summons, substituting references in the summons to “plaintiff” and “defendant” to “applicant” and “respondent” (first amended summons).

3. The applicants own a 670 ha parcel of land in Boydtown (the land). The applicants have engaged with the Minister for Planning and Public Spaces (the Minister), Bega Valley Shire Council (Council), and officers of the Department of Planning and Environment (DPE) since 2017 in relation to the ecological attributes of the land. The applicants contend that the decision-making process has been devoid of critical information, and as such the process has miscarried on critical occasions.

4. In these Class 4 proceedings commenced on 19 August 2021, the applicants challenge:

1. the decision of the delegate of the Minister made 31 August 2017, purportedly under s 56(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), that an amendment to the BVLEP 2013 to include, zone and apply minimum lot size standards to land at, amongst other places, Boydtown, as detailed in the January 2017 Planning Proposal, should proceed subject to conditions (the Gateway Determination);

2. the decision of “DPE” (through DPE officer Ms Sarah Lees) on 19 May 2021 to endorse an amended planning proposal dated 16 May 2021 (the May 2021 Planning Proposal) in accordance with a condition (condition one) imposed by the Gateway Determination (described in the first amended summons as the Endorsement Decision); and

3. the decision of Council to approve, by resolution on 18 August 2021, the May 2021 Planning Proposal (Council’s approval decision).

Outcome

5. For the reasons that follow, I have decided that the summons, as further amended on 17 April 2023, be dismissed.

Proper parties

6. The Court raised with the parties how it was said that DPE is an entity capable of being proceeded against as third respondent.

7. In response, the Minister and DPE (with the applicants not disagreeing) submitted that the proper third respondent was the State of New South Wales in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW). They submitted as follows (footnotes omitted):

The Department of Planning, Industry and Environment (the Department) was established by an administrative arrangements order made by the Governor under s 50D of the Constitution Act (NSW). The establishment of the Department was reflected in Sch 1 of the Government Sector Employment Act 2013 (NSW) (GSE Act), including in the form it appeared as at 19 August 2021 (being the date on which the Summons was filed). The Department is comprised of persons employed by the Government of New South Wales, in service of the Crown, under Part 4 of the GSE Act. The Department is, therefore, in effect an arrangement of persons employed by the government of New South Wales to enable Ministers and statutory officers to exercise their functions, and does not have any legal personality. It follows that the Department is not capable of being sued.

The proper third respondent in those circumstances is the State of New South Wales, in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW), which provides:

“Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title ‘State of New South Wales’ in any competent court.”

The First and Third Respondents therefore consider that the Department should be replaced by the State of New South Wales as the third respondent. It is respectfully submitted that orders substituting the State of New South Wales for the Department as the third respondent to the proceeding ought be made in chambers prior to the delivery of judgment. The First and Third Respondents are indebted to the Court for bringing this issue to the parties’ attention.

8. The applicants referred to the position of the first and third respondents, and indicated to the Court that they expected to be able to provide a consent position regularising how the third respondent is described, consistent with the submission that the proper respondent is the State of New South Wales by Monday, 3 April 2023.

9. It was plainly correct that DPE is not an entity capable of being sued in these Class 4 proceedings.

10. On 4 April 2023, the Court raised with the parties how it was said that in relation to the decision of the DPE officer Ms Lees on 29 May 2021 to endorse the May 2021 Planning Proposal in accordance with condition one of the Gateway Determination, the proper respondent was the State of New South Wales, and how it was said that the Court has jurisdiction in relation to that decision of Ms Lees.

11. On 14 April 2023, the first and third respondents provided further written submissions noting that “the parties hav[ing] given further consideration to the proper third respondent to the proceeding”, the better view was that the “Secretary, Department of Planning and Environment” was the proper third respondent. They submitted that having regard to r 59.3 of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR), the relevant question was who is the “body or person responsible” for the 19 May 2021 Endorsement Decision.

12. They submitted that the Secretary of the Department of Planning and Environment (the Secretary) is employed under Part 4 of the Government Sector Employment Act 2013 (NSW) (GSE Act) (see s 23(5)), and that for present purposes, the Secretary was employed as the “head” of DPE (s 23(1)), and as the person who exercises the Government’s employer functions in respect of other persons employed in the Department: s 25(3)(d) and s 26 of the GSE Act. This includes “all the functions of an employer in respect of employees”: s 26(3).

13. Further, the first and third respondents submitted that Ms Lees was (and is) also employed in the Public Service by the Government of New South Wales under Part 4 of the GSE Act, and more specifically was employed within DPE at the time the Endorsement Decision was made: s 22(1)(a) of the GSE Act. Persons employed under Part 4 of the GSE Act (including the Secretary and Ms Lees) are in service of the Crown: s 20 of the GSE Act. However, they are not emanations of the Crown, and the decisions which they make are not, merely because they are employed in service of the Crown, attributable to the Crown in such a manner that would result in the Crown being the “body or person responsible” for the decision, as contemplated by r 59.3 of the UCPR.

14. Rather, the first and third respondents submitted, in circumstances where a decision is made by an employee of a government department (here, DPE), either the individual decisionmaker (here, Ms Lees) or the relevant secretary of the department, or both, are properly described as the “person … responsible” for the decision. Specifically, the individual decision-maker is responsible because they are the person who in fact made the decision, and the relevant secretary of the department is responsible because of his or her role as the “head” of the department on behalf of which the individual decision-maker made the decision, by reason of the fact that they exercise “all the functions of an employer” in respect of the individual decision-maker and on that basis are responsible for decisions they make in the course of their employment, and perhaps most significantly by reason of s 25(1) of the GSE Act. Section 25(1) provides that “[t]he Secretary of a Department is responsible to the Minister or Ministers to whom the Department is responsible for the general conduct and management of the functions and activities of the department in accordance with the government sector core values under Part 2.” It is by reference to this provision, together with ss 23(1) and 25(3)(d) that the secretary of a department can be said to be the “person responsible for” a decision made by an individual employee of the relevant department made on behalf of the department.

15. I am satisfied that either or both of Ms Lees and the Secretary are proper respondents to the applicants’ challenge to the Endorsement Decision.

16. However, in circumstances where the applicants seek an order restraining the third respondent from “further acting upon” the Gateway Determination and/or the planning proposal, it was submitted that it would be most appropriate for the Secretary, rather than Ms Lees personally, to be substituted as the third respondent. This is, it was submitted, because if Ms Lees were substituted as the third respondent, an order restraining Ms Lees from “further acting upon” the Gateway Determination and/or the planning proposal might not have the effect of binding all employees of DPE from further acting upon the Gateway Determination and/or the planning proposal. Only Ms Lees would be bound. By contrast, an order restraining the Secretary from further acting upon the Gateway Determination and/or the planning proposal would in practice bind DPE as the Secretary would be required under s 25(4)(c) of the GSE Act to “implement measures to ensure the Department complies with the law” which would include an order of the Court to the effect that the Gateway Determination and/or planning proposal should not be acted upon.

17. On 14 April 2023, the applicants provided written submissions adopting the position of the first and third respondents in their submissions dated 14 April 2023 that “Secretary, Department of Planning and Environment” is the correct and most appropriate third respondent.

18. I have accepted the submissions of the first and third respondents, adopted by the applicants, that having regard to the relief sought in the summons, the proper third respondent is the Secretary. This analysis is consistent with the approach in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where the applicant brought judicial review proceedings in respect of “non-statutorily based administrative actions taken by the Departmental officers”. ^[1] In that case, both the Secretary of the relevant department (the Department of Home Affairs) and the individual decision-maker (described as “Karen Dix – Position Number 60008218 in her Capacity as Assistant Director, Ministerial Intervention, Department of Home Affairs”) were joined as respondents. This analysis is also consistent with the approach in DCM20 v Secretary, Department of Home Affairs,^[2] where the applicant challenged a non-statutory decision of the Assistant Director, Ministerial Intervention of the Department of Home Affairs. In that case, both the Secretary of the Department of Home Affairs and the individual decision-maker, were considered to be the proper respondents.

    1. [2021] FCAFC 213; (2021) 288 FCR 23 at [2].

    2. [2020] FCA 1022 at [5].

19. I am also satisfied that the Court’s jurisdiction to challenge the Endorsement Decision is found in s 16A(1A) of the LEC Act for the reasons set out in my consideration of Ground 3 at [167]–[172] below.

20. The applicants and the first and third respondents agreed a formulation of appropriate orders to regularise the proceedings by changing the name of the third respondent to the “Secretary, Department of Planning and Environment”. In chambers on 17 April 2023, I made the following orders:

(1) The applicants be granted leave to substitute the “Secretary, Department of Planning and Environment” as the third respondent.

(2) The applicants be granted leave to amend their summons and outline of opening submissions to substitute the name of the third respondent to “Secretary, Department of Planning and Environment”, and make any consequential amendments.

(3) The respondents be granted leave to amend their points of defence and outline of submissions to substitute the name of the third respondent to “Secretary, Department of Planning and Environment”, and make any consequential amendments.

(4) The parties be granted leave to amend the Agreed List of Issues for Determination to substitute the name of the third respondent to “Secretary, Department of Planning and Environment”, and make any consequential amendments.

The decisions challenged   

The Minister’s 31 August 2017 Gateway Determination

21. In their challenge to the Gateway Determination made on 31 August 2017 (by the Minister’s delegate) under s 56(2) of the EPA Act, the applicants placed particular reliance on conditions 1 and 5. The Minister’s response to Council’s request for a gateway determination under s 56 of the EPA Act, and the Gateway Determination were, relevantly, in the following terms (emphasis added):

As delegate of the Minister for Planning, I have now determined the Planning Proposal should proceed subject to the conditions in the attached Gateway determination.

I have included a condition that the Planning Proposal be updated to propose zones and associated development controls based on the ecological significance of the land and its primary use.

The Planning Proposal will need to confirm what criteria has been used for applying an environmental zone and should be determined in consultation with the Office of Environment and Heritage and the Department of Planning and Environment. The Department's Northern Councils E Zone Review: Final Recommendations Report provides an approach for applying environmental zones and associated development standards and could be used as a guide for this Planning Proposal.

The amended Planning Proposal and any supporting maps and studies will need to be referred to the Department for endorsement prior to the commencement of community consultation.

…

Gateway Determination

Planning Proposal (Department Ref: PP _2017 _BEGAV_003_00): to include, zone and apply minimum lot size standards to land at Millingandi, Tura Beach and Boydtown.

I, the Deputy Secretary, Planning Services, at the Department of Planning and Environment as delegate of the Minister for Planning, have determined under Section 56(2) of the Environmental Planning and Assessment Act 1979 (the Act) that an amendment to the Bega Valley Local Environmental Plan (LEP) 2013 to include, zone and apply minimum lot size standards to land at Millingandi, Tura Beach and Boydtown should proceed subject to the following conditions:

1. Prior to undertaking community consultation Council, is to:

• update the Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use;

• confirm what criteria has been used for applying an environmental zone, such as the presence of native vegetation communities, and confirm how the presence of these ecological attributes have been verified;

• consult with the Office of Environment and Heritage and the Department of Planning and Environment regarding the proposed zones and development standards.

The amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement prior to the commencement of community consultation.

…

5. The timeframe for completing the LEP is to be 18 months following the date of the Gateway determination.

The 19 May 2021 Endorsement Decision

22. The decision described in the further amended summons as the Secretary’s “Endorsement Decision” made on 19 May 2021 by Ms Lees was a departmental memorandum signed by Ms Lees providing “Departmental approval” to the following recommendation to endorse the May 2021 Planning Proposal:

Endorse Revised Planning Proposal - Boydtown, Bega

Purpose: To seek the approval of the Director to endorse a revised planning proposal to rezone deferred land at Boydtown (PP 2017 BEGAV _003_00) to enable Council to undertake community consultation.

Analysis: The revised planning proposal seeks to address condition 1 of the Gateway determination that requires Council prepare a revised planning proposal in consultation with DPIE Biodiversity and Conservation and seek the endorsement of DPIE Planning before undertaking community consultation.

Recommendation

It is recommended that the Director;

1. note and endorse the revised planning proposal PP _2017 BEGAV _003_00 for Boydtown (Attachment A) in accordance with condition 1 of the Gateway determination dated 31 August 2017 (as amended),

23. On 19 May 2021, Ms Lees wrote to Council advising (relevantly) of the “Endorsement Decision”:

I have determined to endorse the revised Planning Proposal in accordance with condition 1 of the Gateway determination dated 31 August 2017 (as amended) to enable Council to undertake agency and community consultation.

Council’s 18 August 2021 approval decision

24. Council’s approval decision, made by resolution dated 18 August 2021, was relevantly in the following terms:

That Council:

1. Support the amendment to Bega Valley Local Environmental Plan 2013 (Amendment 38) for certain land at Boydtown as exhibited (Attachment 1) and request that the Minister of Planning and Public Spaces make the plan.

Relief sought and grounds of review

Relief sought

25. The applicants seek declaratory and injunctive relief against each of the respondents, the effect of which would be to declare the acts of the respondents ultra vires and of no effect, and to restrain them from further acting upon the Gateway Determination, the Endorsement Decision and the May 2021 Planning Proposal.

26. As against the Minister, in particular, the applicants seek an order quashing the Gateway Determination, as well as leave to commence proceedings in relation to the Gateway Determination (made 31 August 2017) out of time pursuant to r 59.10 of the UCPR which provides that, subject to the court extending the time for commencing proceedings, proceedings for judicial review must be commenced within 3 months of the date of the decision.

Grounds against the Minister in relation to the Gateway Determination

27. In Ground 1 of the further amended summons, the applicants contend that the Minister’s power under s 56(2) of the EPA Act to determine whether the January 2017 Planning Proposal should proceed was not enlivened, and that the purported Gateway Determination was ultra vires. The particulars in relation to Ground 1 are that:

1. the power in s 56(2) required there to be a document meeting the description of a planning proposal in s 55(1); and

2. the January 2017 Planning Proposal was not a planning proposal within the meaning of s 55(1) because it failed to set out the justification for amending the BVLEP 2013 in that it failed:

1. to apply environmental and rural zones and associated developments to land based on its ecological significance;

2. to set out the criteria used for applying an environmental zone; and

3. to set out how the presence of ecological attributes were verified.

28. In Ground 2, the applicants contend that in the event that the Minister's power under s 56(2) of the EPA Act was enlivened, the Minister impermissibly determined that the matter should proceed pursuant to s 56(2)(a), and the purported Gateway Determination was made ultra vires. The gravamen of this ground as particularised is that the Minister purported to exercise the power under s 56(2)(a), when he was really exercising the power under s 56(2)(b). That is said to be because the Gateway Determination required further information such as the application of standards to be obtained, anticipated that further supporting maps and studies would be obtained, and required substantial revision of the January 2017 Planning Proposal. The Gateway Determination was therefore not capable of constituting a determination under s 56(2)(a).

Grounds against the Secretary in relation to the Endorsement Decision

29. In Ground 3, the applicants contend that the Secretary failed to take into account relevant considerations in making the Endorsement Decision, being matters mentioned in condition one of the Gateway Determination. Those matters are particularised as:

1. the environmental and rural zones and associated developments to land based on its ecological significance;

2. the criteria used for applying an environmental zone; and

3. the verification of the presence of ecological attributes.

Grounds against Council in relation to Council’s approval decision

30. In Ground 4, the applicants contend that Council, in making its approval decision, was required by the Gateway Determination to take into account the considerations referred to above in [29(1)–29(3)], and that Council failed to take into account those considerations, they being relevant considerations.

31. In Ground 5, the applicants contend that Council’s approval decision was ultra vires as the time for complying with the requirements of the Gateway Determination had expired. This is said to be because the Gateway Determination required Council to comply with its conditions within 18 months (that is, by 28 February 2019), that on 18 January 2021 Council sought an extension of time to comply with the Gateway Determination, and that on 21 January 2021 the Minister declined to exercise the power in s 3.34(7) of the EPA Act to alter the Gateway Determination to extend time for compliance.

32. In Ground 6, the applicants contend that in making its approval decision, Council denied them procedural fairness. The conduct giving rise to the alleged denial of procedural fairness is said to be the agreement at a meeting between the applicants and representatives of Council on 23 August 2019 that the applicants would engage an ecologist to, inter alia, address environment and site conditions, that the applicants obtained a report which was provided to Council on 19 August 2020, and that Council failed to provide that report to the Secretary, who proceeded to endorse the Planning Proposal (as amended) without considering the report.

Issues for determination

33. The parties agreed (an amended) list of issues for determination as follows.

As against the Minister

1. Whether leave is required and should be granted to the applicants under rule 59.10(2) of the UCPR.

2. Whether the Minister's power under s 56(2) of the EPA Act is to determine whether the matter relating to the Planning Proposal should proceed was not enlivened and the purported Gateway Determination was ultra vires.

3. In the event that the Minister's power under s 56(2) of the EPA Act was enlivened, whether the Minister impermissibly determined the matter should proceed pursuant to s 56(2)(a) and the purported Gateway Determination was ultra vires.

4. What relief the applicants are entitled to against the Minister, if any.

As against the Secretary

1. Whether the following matters were mandatory considerations which were required to be taken into account by Ms Lees on behalf of the Secretary in making the Endorsement Decision:

1. the environmental and rural zones and associated developments to land based on its ecological significance;

2. the criteria which have been used for applying an environmental zone;

3. the verification of the presence of ecological attributes.

2. If so, whether Ms Lees on behalf of the Secretary, in making its decision to endorse the May 2021 Planning Proposal on 19 May 2021 failed to take into account the following considerations:

1. the environmental and rural zones and associated developments to land based on its ecological significance;

2. the criteria which have been used for applying an environmental zone;

3. the verification of the presence of ecological attributes.

3. What relief the applicants are entitled to against the Secretary, if any.

As against Council

1. Whether in making its decision on 18 August 2021 to approve the May 2021 Planning Proposal, the following matters were mandatory considerations Council was required to take into account:

1. the environmental and rural zones and associated developments to land based on its ecological significance;

2. the criteria which have been used for applying an environmental zone;

3. the verification of the presence of ecological attributes.

2. If so, whether Council in making the approval decision failed to take into account the following considerations:

1. the environmental and rural zones and associated developments to land based on its ecological significance;

2. the criteria which have been used for applying an environmental zone;

3. the verification of the presence of ecological attributes.

3. Whether Council’s approval decision was ultra vires by reason that the time for compliance with the requirements of the Gateway Determination had expired when the decision was made.

4. Whether in making its approval decision, Council owed the applicants an obligation to afford procedural fairness and, if so, denied procedural fairness to them.

5. What relief the applicants are entitled to against Council.

Statutory framework governing planning proposals and gateway determinations

34. At the time of the Gateway Determination, Division 4 of Part 3 of the EPA Act governed the making and amending of LEPs. The equivalent in the renumbered EPA Act is Division 3.4 of Part 3. Although the legislative regime in the renumbered EPA Act has been altered, it is not different in any respect relevant to these proceedings.

35. Subsection 53(1) provided that the Minister may make environmental planning instruments for the purpose of environmental planning in (inter alia) each local government area (LGA). Any such instrument may be called an LEP: s 53(2). The relevant planning authority in respect of a proposed instrument was the council for the LGA to which the proposed instrument was to apply (subject to an exception which is not presently relevant): s 54(1)(a).

36. In relation to planning proposals, s 55 provided as follows:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)  Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)  The planning proposal is to include the following:

(a)  a statement of the objectives or intended outcomes of the proposed instrument,

(b)  an explanation of the provisions that are to be included in the proposed instrument,

(c)  the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)  if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)  details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)  The Secretary may issue requirements with respect to the preparation of a planning proposal.

37. In relation to gateway determinations, s 56(1) provided that once a planning proposal under s 55 was prepared, the relevant planning authority might forward it to the Minister under s 56(1). The balance of s 56 (presently relevant) provided:

56   Gateway determination

…

(2)  After a review of the planning proposal, the Minister is to determine the following:

(a)  whether the matter should proceed (with or without variation),

(b)  whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

…

(f)  the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

…

(6)  The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7) The Minister may, at any time, alter a determination made under this section.

(8)  A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

38. Pursuant to s 58, the relevant planning authority could at any time vary its proposals. Subsection 59(2) empowered the Minister, following the completion of community consultation, to make the LEP with or without variations proposed by the relevant planning authority in the terms the Minister considered appropriate, or to decide not to make the LEP.

39. Subsection 3.36(2) of the renumbered EPA Act provides that the local plan-making authority (which includes the Minister and a council for the LGA if the gateway determination authorises it to do so (s 3.31(3)), may make the LEP.

Council’s proposed rezoning of the land, and the Lyon Group planning proposal

40. Central to the decisions the subject of review is Council’s proposed application of environmental zones (E zones) to the land. A document prepared by DPE titled, “Northern Councils E Zone Review Final Recommendation Report” dated October 2015 (E Zone Review) provided for E2 Environmental Conservation and E3 Environmental Management zones to be applied to an area only if the primary use of the land, being the main use for which the land has been used for the last two years, was considered to be environmental conservation or environmental management respectively, and if the land contained attributes which met one or more of the criteria for an E2 or E3 zone.

41. At all relevant times, the Bega Valley Local Environmental Plan 2002 (NSW) (BVLEP 2002) governed the zoning of the land. Under the BVLEP 2002 the land was zoned 1(a) Rural General Zone, 1(c) Rural Small Holdings Zone, 2(b) Residential Medium Density, 2(c) Residential Tourist, 6(a) Public Open Space, 7(d) Environmental Protection Zone and 7(f1) Coastal Lands Zone. The image below shows the current zoning of the land under the BVLEP 2002 as depicted in the May 2021 Planning Proposal.

42. In the BVLEP 2013, Council rezoned most of the land in the Bega Valley Shire LGA to reflect the standard environmental planning instrument (standard instrument). However, the BVLEP 2013 deferred the rezoning of a number of sites, including Millingandi, Tura Beach and Boydtown. These sites were identified as “Deferred Matters” on the gazettal of the BVLEP 2013 as zonings and/or lot sizes proposed by landowners representing a significant departure from the exhibited draft Bega Valley Local Environmental Plan 2010 (BVLEP 2010), or zonings that required more detailed investigations.

43. In the period between 2016 and 2021, Council sought to rezone the deferred Boydtown site, being the subject land, through a number of planning proposals:

1. the January 2017 Planning Proposal, titled, “Three Deferred Sites Planning Proposal January 2017: Millingandi, Tura Beach (‘Mandeni’), Boydtown”;

2. the March 2019 Planning Proposal, titled, “Deferred Site Planning Proposal March 2019: Boydtown”; and

3. the May 2021 Planning Proposal, titled “Planning Proposal: Boydtown 2021”.

44. In each of the planning proposals, Council made the following recommendation in relation to the land at Boydtown:

That the land north of Nullica Short Cut Road be zoned RU2 (120ha) and E2 (no lot size); the remainder of the land west of the Princes Highway be zoned E3 (10ha) and E2 (no lot size); and the south eastern section of the property adjoining the Towamba River estuary be zoned E3 (40ha) and E2 (no lot size).

A portion of the land near the Seahorse Inn and east of the Princes Highway was to remain a Deferred Matter (and correspondingly marked “DM” in the land application map), subject to a further planning proposal in the future.

45. Council’s proposed rezoning of the applicants’ land as displayed in each of the three planning proposals is depicted in the image below, extracted from the May 2021 Planning Proposal:

46. The E2 zone, “the most stringent zoning for environmental protection”, (as stated at heading 2.1 of each of the three planning proposals), was proposed to be applied to parts of the land known as Reedy Creek, the riparian buffer zone (a potential koala habitat), and the coastal estuary and headland associated with the Towamba River to the east of the subject land.

47. The E3 zone was to be applied to “heavily forested areas” of the land, being the remainder of the land west of the Princes Highway, as well as the south-eastern section of the land adjoining the Towamba River estuary.

48. The applicants objected to Council’s proposed rezoning of the land. On 25 June 2021, Mr Myall Stevens wrote to Council on behalf of the Lyon Group Australia Pty Ltd (the Lyon Group), the holding company of the applicants. Mr Stevens outlined the Lyon Group’s proposed “masterplan” for the future development of Boydtown as follows:

The development comprises a village centre focused around the existing Seahorse Inn, a medium density residential zone along Boydtown Creek, low density residential in the undulating terrain to the south of Boydtown Creek, Highway Service Centres on both sides of the Highway and rural residential development to the west of the highway.

49. The Lyon Group objected to Council’s planning proposals, and developed its own planning proposal to support its masterplan for the site (Lyon Group planning proposal) as provided to Council in Mr Stevens’ letter of 25 June 2021, and visualised for the Court in the form of an aide memoire. The Lyon Group’s key proposed amendments in relation to zoning were described as follows:

1. E2 zone along Reedy Creek be changed to E3 zone along the creek to match the 40m Riparian Zone currently established;

2. zoning of all RU5 Rural Landscape land be changed to R5 Large Lot Residential;

3. areas marked by Council as “Deferred Matter” be zoned R2 Low Density Residential, R3 Medium Density Residential, B5 Business Development, B2 Local Centre and SP3 Tourist zones;

4. Council’s proposed RE1 Public Recreation zone be changed to E3 zone;

5. Council’s proposed E2 zone along Towamba River be changed to E3 zone; and

6. while the Lyon Group held the view that E4 Environmental Living was a more appropriate zone than the E3 zone because of the intended future use of the locality, if Council implemented the Lyon Group’s proposed amendments, they would be agreeable to the implementation of the E3 zone.

50. The Lyon Group planning proposal proposed rezoning of the land as depicted in Mr Stevens’ letter dated 25 June 2021, and the aide memoire, which is reproduced below:

Agreed background to the decisions under review

51. The agreed background to the decisions under review, derived largely from the Statement of Agreed Facts (SOAF), is as follows.

52. In January 2017, Council created a document titled ‘Three Deferred Sites Planning Proposal’ (referred to herein as the January 2017 Planning Proposal).

53. On 31 August 2017, the Minister for Planning created a document that stated that the planning proposal should proceed subject to conditions (referred to herein as the Gateway Determination).

54. As set out above at [21], condition 1 of the Gateway Determination required Council, prior to undertaking community consultation, to update the January 2017 Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use, confirm the criteria used for applying an environmental zone, and consult with the Office of Environment and Heritage (OEH) and DPE regarding the proposed zones and development standards. Condition 1 also required that:

The amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement prior to the commencement of community consultation.

55. Condition 5 of the Gateway Determination required that the LEP be completed within 18 months, that is, by 28 February 2019.

56. On 17 August 2018, the Minister, by his delegate, varied the 31 August 2017 Gateway Determination pursuant to s 3.34(7) of the EPA Act.

57. On 7 March 2019, following a request from Council pursuant to s 3.34(7) of the EPA Act, the Minister, by his delegate, again varied the Gateway Determination by deleting the existing condition 5 and replacing it with a new condition which extended the time for completing the LEP to 31 August 2020.

58. On 23 August 2019, a meeting was held between representatives of the applicants and representatives of Council, an outcome of which was that the applicants would engage an ecologist to address environmental constraints, site constraints and E zoning.

59. On or about 19 August 2020, the applicants submitted to Council a detailed justified masterplan and planning proposal, including a copy of a report dated August 2020 prepared by WSP titled “Biodiversity Constraints Assessment” (the BCA Report).

60. In the period between 31 August 2020 and 18 January 2021, Council did not seek any further extension of time to comply with the Gateway Determination.

61. On 18 January 2021, Council sought an extension of time to comply with the Gateway Determination.

62. On 21 January 2021, the Minister declined to exercise the power in s 3.34(7) and alter the Gateway Determination to extend time for compliance. In doing so, the Minister noted, amongst other things, that the intention of the Government was for planning proposals to take no more than 2 years to complete.

63. Prior to Ms Lees, on behalf of the Secretary, endorsing Council’s May 2021 Planning Proposal on 19 May 2021, Council did not provide a copy of the BCA Report to DPE. Prior to endorsing the planning proposal on 19 May 2021, DPE had received:

1. a Briefing Note titled “Endorse Revised Planning Proposal – Boydtown, Bega” and attachments including:

1. Attachment A – Planning Proposal (PP_2017_BEGAV_003_00), dated 2021 prepared by Bega Valley Shire Council;

2. Attachment B – Council request for endorsement, dated 11 May 2021;

3. Attachment C – Gateway Determination of Marcus Ray, dated 31 August 2017;

4. Attachment D – Gateway Alteration of Marcus Ray, dated 17 August 2017;

2. a letter from the Biodiversity and Conservation Division in DPE (formerly DPIE), dated 26 July 2019.

64. It was agreed that Ms Lees did not consider the BCA Report. It was also agreed that the BCA Report was not provided to councillors prior to Council’s meeting on 18 August 2021.

Evidence

65. Further to the SOAF, the applicants read two affidavits of Mr Myall Stevens, Associate Director, Planning, Infrastructure and Economics employed by KPMG, dated 4 November 2021 and 8 November 2022. The first and third respondents read an affidavit of Ms Sarah Lees, Director, Southern Region, Local and Regional Planning, DPE, dated 26 November 2021. Council read affidavits of Mr Derek Van Bracht, Environment and Sustainability Coordinator, employed by Council, dated 26 November 2021, and Ms Sophie Thomson, Strategic Planning Coordinator, employed by Council, dated 26 November 2021.

66. The documentary evidence, and my findings in relation to that evidence, are set out below.

The Northern Councils E Zone Review: October 2015 Final Recommendations Report

67. The covering letter to the Gateway Determination referred to the E Zone Review. The letter stated that the document provided an approach for applying E Zones and associated development standards, and could be used as a guide for the planning proposal.

68. In its introduction, the E Zone Review explained that its final recommendations applied to the five LGAs of Ballina, Byron, Kyogle, Lismore and Tweed. Section 3 of the E Zone Review, headed ‘Application of E Zones’, relevantly stated:

Application of E Zones

1 When will E zones be applied?

• E2 and E3 zones will only be applied if the primary use of the land is considered to be environmental conservation (E2) or environmental management (E3) and the land contains attributes which meet one or more of the criteria for an E2 or E3 zone (Tables 1 and 2).

• An E4 zone can be applied if the land contains attributes that are consistent with the Department’s Practice Note PN09-002 Environment Protection Zones.

…

4 What is the procedure for applying an E2 or E3 zone to land?

• Councils will assess land against the E zone criteria and consider the primary use of the land before proposing an E2 or E3 zone.

• An E2 or E3 zone can only be applied to land with a primary use of environmental conservation or environmental management and, which has attributes that have been verified to meet the E zone criteria.

• If the land has attributes that meet the E2 criteria, however the primary use of the land is environmental management rather than environmental conservation, a council may apply an E3 zone.

• If a council believes the primary use of the land does not warrant an E zone, and the land meets the E zone criteria, then a LEP Map and associated clauses can be applied.

• The E zones will not include buffers to the vegetation attributes that meet the E zone criteria.

69. Table 1 to the E Zone Review provided criteria for land suitable for zoning E2, and Table 2 criteria for land suitable for zoning E3.

The January 2017 Planning Proposal

70. In the January 2017 Planning Proposal, titled, “Three Deferred Sites Planning Proposal January 2017 Millingandi, Tura Beach (‘Mandeni’), Boydtown”, land designated as “Site 3” concerned Boydtown, being the subject land.

71. The planning proposal provided a justification for the rezoning of Site 3 as follows:

Section A Need for the Planning Proposal

Q1. Is the planning proposal a result of any strategic study or report?

No. The site has been the subject of various proposals over three decades, many of which have not been supported by planning authorities to lack of justified need for major urban land releases in the catchment. An extract from the Draft Rural Living Strategy is below showing the current demand and supply in the broader Eden catchment.

Q2. Is the planning proposal the best means of achieving the objectives or intended outcomes or is there a better way?

Yes. It is considered that this Planning Proposal is the most appropriate and available means of achieving the objective.

Section B Relationship to Strategic Planning Framework

Q3. Is the Planning Proposal consistent with the objectives and actions of the applicable regional or sub-regional strategy?

South Coast Regional Strategy

Section 8 of the SCRS states that:

‘Local environmental plans will include provisions to limit dwellings in rural and environmental zones.’ p.29

This re-zoning will have the effect of limiting a proliferation of rural residential dwellings by way of the RU2 zoning (MLS 120 Ha) and the E3 zoning over the more heavily forested lands (MLS 10 and 40 Hectares).

Draft South East and Tablelands Regional Plan May 2016

Action 3.3.3 Protect valuable mineral and extractive resources in the region (p. 52)

This planning proposal minimises the potential for land use conflict between any future urban uses and the current extractive industry on the site by not zoning any land for more intensive residential purposes (no E4, RS and R2 / R3 zones are proposed).

Q4. Is the Planning Proposal consistent with a council's local strategy or other local strategic plan?

The Draft Rural Living Strategy provides the following demand and supply information.

…

Conclusion

Eden Cove north of the Eden town centre has the capacity for around 44 rural residential lots in accordance with the Eden Cove Master Plan and when developed, these lots will ensure the supply of vacant rural residential lots close to Eden.

Within the Eden catchment there is also approximately 150ha of land zoned rural residential under BVLEP 2002 within the locality of Boydtown. This land is deferred from BVLEP 2013 and is currently the subject of investigations to determine appropriate zones and subdivision potential. Due to the uncertainty of the rural residential yield, no estimates of rural residential supply have been made for this area.

Q5. Is the Planning Proposal consistent with applicable State Environment Planning Policies?

This Planning Proposal is consistent with the State Environmental Planning Policies (SEPPs) Rural Lands as the rural planning principles are not compromised by the rezoning.

…

SEPP No. 44 Koala Habitat Protection

The consultant Ecobiological conducted a thorough flora and fauna assessment in mid-2011, including assessment of the land for potential koala habitat.

…

SEPP No. 55 Remediation of Land

Bega Valley Shire Council’s records indicate that none of the subject land is contaminated.

Q6. Is the Planning Proposal consistent with applicable Ministerial Directions?

This Section addresses consistency with applicable Section 117 Directions. Attachment 3 contains a complete list of all 117 Ministerial Directions applicable within the Bega Valley Shire.

1.2 Rural Zones

…

This planning proposal is consistent with this direction as it zones land which is currently used for grazing livestock as Rural Landscape (RU2). It is considered that the proposed re-zoning does not fragment or remove any grazing lands.

…

1.3 Mining, Petroleum Production and Extractive Industries

…

This planning proposal is considered consistent with this direction as the proposed re-zonings to RU2 and E3 both permit agriculture and/or industry which aligns with section 7 of the SEPP – Extractive Industries.

…

1.5 Rural Lands

…

This planning proposal is considered consistent with this Direction as it affects rural zoned land and proposes to not to alter the area currently used for grazing.

…

2.1 Environment Protection Zone

…

This planning proposal is consistent with this Direction as all lands will not result in any alienation or destruction of environmentally sensitive areas. As previously stated DA2011.500 authorises the staged destruction of 78 mature paddock trees to win sand and topsoil. A reafforestation plan using Manna Gums has been approved as part of the DA.

The proposed E2 zones (the most stringent zoning for environmental protection) will be applied to Reedy Creek and the riparian buffer zone (potential koala habitat) along with an E2 zone protecting the coastal estuary and headland associated with the Towamba River to the east of the subject site.

2.3 Heritage Conservation

…

This planning proposal is consistent with this Direction as it includes provisions to protect and conserve any newly identified places or items of significant heritage value.

…

3.1 Residential Zones

…

This Planning Proposal is consistent with this direction as it does not propose any significant urban development in a residential zone or future urban residential zone.

…

Section C Environmental, Social and Economic Impact

Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal?

There is no critical habitat in the Bega Valley Shire. With regard to threatened species, populations or ecological communities, all the proposed sites will continue existing land uses. Therefore, it is unlikely that this rezoning, in itself, will cause harm to threatened species or habitats.

The Bioecological Consultants field surveys of mid 2011 for the area covered by the RU2 and partial E2 and E3 zoning to the west of the highway identified six (6) fauna species which are listed as significant (Vulnerable) under the NSW TSC Act.

…

It is noted that the E2 zone will apply to Reedy Creek. The heavily forested areas of the subject site will be zoned E3.

Note that the sand extraction DA2011.500 has several onerous environmental and land restoration conditions which are designed to protect the sensitive habit of Reedy Creek.

Q8. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?

Nil. The E2 zone will protect the most sensitive areas of Reedy Creek and the sensitive headland/ estuary strip of land (formerly 7 (b) land) to the far east of the site.

Q9. Has the planning proposal adequately addressed any social and economic effects?

Yes. The effect of this planning proposal will be to protect environmental sensitive lands close to the Towamba and Nullica River mouths and to protect existing grazing lands (sand extraction excepted) and forested areas.

Section D State and Commonwealth Interests

Q10. Is there adequate public infrastructure for the planning proposal?

No additional public infrastructure requirements for the subject areas are required.

Q11. What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway determination?

Consultation with State and Commonwealth public authorities has been partially undertaken (see JRPP decision August 2015). The level of consultation will be determined by the NSW Department of Planning and Environment when it makes its Gateway Determination.

Minister’s 31 August 2017 Gateway Determination

72. The Minister’s response to Council’s request for a gateway determination under s 56 of the EPA Act, and the 31 August 2017 Gateway Determination are set out above at [21].

Minister’s 17 August 2018 alteration to the Gateway Determination

73. On 17 August 2018, the Gateway Determination was altered by the Minister’s delegate pursuant to s 3.34(7) of the EPA Act to remove references in the January 2017 Planning Proposal to Milligandi and Tura Beach, with the result that the planning proposal only referred to Boydtown.

Council’s report on “Application of Zonings to the Boydtown Property”

74. In evidence was an undated report entitled “Application of Zonings to the Boydtown Property” (Zoning Report). It appears that the Zoning Report was prepared for the OEH by Council in response to the January 2017 Planning Proposal and condition 1 of the Gateway Determination. The Zoning Report outlined Council’s methodology in applying the appropriate zoning as follows:

Background

When applying the new Standard Template zones, Council considered a range of factors including existing zonings, current and projected landuse [sic], environmental values (e.g. biodiversity, soil and landscape protection, biodiversity, catchment and waterway protection) environmental hazards and wide range of data provided to Council from various State Government Agencies.

While acknowledging the need to appropriately protect the Shires natural resources, Council as a priority wanted to ensure that the Shires primary agricultural areas were recognised and appropriately zoned.

As such when considering the application of appropriate natural resources zonings the Shire was essentially broken into 2 broad areas – the rural valleys and the coastal catchments.

…

The Coastal Catchments - this methodology was applied to the Boydtown Property

…

The Boydtown Property falls into the estuarine catchments of the Towamba River, Nullica River and Boydtown Creek. Lands currently zoned 1 (a) in the coastal catchments were generally zoned RU2 Rural General Zone or E3 Environmental Management, used for rural land within coastal catchment areas depending on environmental values. Land containing important environmental values (catchment protection or vegetation) with high levels of fragmentation of ownership were zoned E3. Importantly the E3 zoning still allows for ‘Extensive Agriculture’ as a permitted use.

Council attempted to identify existing operating farms within the coastal catchments and has applied a RU(2) Rural General Zone to these areas.

The LEP (2002) also had key environmental zonings 7f1 (Coastal Protection) and 7(d) Environmental Protection (Scenic) that encompassed part of the Boydtown Property. A large portion of the Boydtown property adjacent to the Towamba River was formerly zoned 7f(1) and this has been replaced by a mix of E2 and E3 zonings. The 7(d) zone has been incorporated into the E3 zone that runs south from the main ridge to the Towamba River.

The heavily forested former 1(c) zone west of the highway was transitioned to an E3 zone, rather than an E4 zone due to the nature of the sites topography, vegetation cover and larger proposed lot sizing for this part of the property.

…

Appropriateness of Current Foreshore Zoning

The majority of the current zonings have been in place since 1987. Our understanding of the natural functioning of estuaries and the community’s appreciation of them has increased dramatically over the last 20 years and as such it is fair to say that many of the previous zonings were inappropriate and ineffective.

The previous LEP attempted to provide some protection to sections of foreshore through the use of a 7(b) Foreshore Protection zone. However the application of this zone did not necessarily represent an appropriate riparian buffer (to achieve bank stability, water quality improvement of provide habitat). Nor did these zones accommodate the extent of existing riparian or wetland ecosystems. Further, in some areas the lack of an appropriate zoning of the land beyond the foreshore zone resulted in poor management of tributaries, drainage lines and stormwater meaning that what was achieved through the 7(b) zone was arguably compromised by the quality of water and sediments entering the estuaries from catchment sources.

…

Application of the E2 Zone to Estuarine Foreshores including Towamba River

The current LEP template removed the old 7(b) Foreshore Protection zoning as an option and instead provides a number of Environmental or 'E' zonings. Bega Valley Shire Council decided that the E2 Environment Protection Zone is the most appropriate zoning for estuary foreshore areas.

In non-urban estuary areas (outside of the National Park estate) an E2 zone of 80 -1 00m was applied. This is in line with recommendations of Haines (2005 Coastal Lake Management) and DECC (2008 submission to Council). Haines suggests that it is vital to consider both the vertical and horizontal components of the foreshore buffer, when determining appropriate setbacks. The vertical buffer accommodates the natural variability in ICOLL water levels and predicted sea level rise, whilst the horizontal buffer provides for the continued ecological functioning and if necessary up s pe migration of riparian vegetation communities.

The preservation of the estuaries natural, social and economic values is of the upmost importance to Council and the LEP is seen as Councils primary tool in achieving this outcome. To compliment the foreshore zonings Council is proposing that the immediate catchments (non-urban) should be zoned RU2 Rural Landscape, E3 Environmental Management or E4 Environmental Living. The new LEP template also requires the zoning of waterways as either W1 Natural, W2 Recreational or W3 Working. Council is proposing to zone the vast majority of the estuaries as W1, with smaller sections of W2 and W3 where appropriate.

Council’s March 2019 Planning Proposal

75. On 14 March 2019, Ms Sophie Thomson of Council sent a letter by email to Ms Alison Treweek of OEH attaching an updated planning proposal. The updated proposal was titled “Deferred Site Planning Proposal March 2019: Boydtown: Bega Local Environmental Plan 2013” (herein referred to as the March 2019 Planning Proposal). In Council’s letter, Ms Thomson said:

Council received a Gateway Determination for the planning proposal in August 2017 and some discussions have been held between Council and OEH staff regarding the requirements of this Gateway Determination.

Accordingly, Council has prepared a document which outlines our methodology and justification in support of the environmental and rural zones and development standards proposed for that part of the Boydtown area affected by the planning proposal.

Can you please provide some feedback regarding our justification in the context of the planning proposal so that we can proceed with updating the planning proposal as required by the Gateway Determination and commence our community consultation?

…

Please find attached to this email:

• Gateway Determination

• OEH information for proposed zones at Boydtown

• Boydtown Planning Proposal

76. On 26 July 2019, Ms Treweek of OEH, which had been renamed the Biodiversity and Conservation Division within DPE (the BCD), responded to Ms Thomson’s letter of 14 March 2019. Relevant aspects of the response are extracted below (emphasis added):

We have reviewed the draft planning proposal you recently sent to us.

…

In essence BCD supports the Planning Proposal in particular the application of the E2 Environmental Conservation and E3 Environment management zones. BCD considers this zoning to be the most appropriate zoning to protect the various environmental and Cultural heritage values across the site.

The site provides habitat for a range of threatened species and also has several areas of endangered ecological community. There are some areas which may be flood prone and therefore should be protected as per the E2 zoning proposed. There are also areas of coastal floodplains that should be protected.

…

Further detailed information on the above mentioned values can be found in Attachment A.

77. Attachment A to Ms Treweek’s letter provided comment in support of the application of E2 and E3 zoning to significant areas of endangered ecological community across most of the land, considered to be “High Environmental Value land”. This included Boydtown Creek, which runs through the centre of the land and is listed as a sensitive estuary. The BCD referred to the South Eastern and Tablelands Regional Plan, which indicated that areas of “validated High Environmental Value”, as well as groundwater dependant ecosystems and aquatic habitats associated with rivers and streams, should be protected from development. The BCD made the following comments in relation to endangered ecological communities on the land:

The BCD databases indicate the areas which are proposed for E2 and E3 zoning support habitat for several threatened fauna species including yellow bellied gliders, several species of microbat, masked owls, powerful owls and Gang Gang's. It also provides a movement corridor for koalas and other species which have been recorded outside the boundary of the planning proposal. There are currently significant areas of Endangered ecological community across the Planning proposal area these include. [sic]

• Lowland grassy woodland

• Swamp Oak Floodplain woodland,

• Bangalay Sand Forest and

• River Flat Eucalypt Forest

• Swamp Sclerophyll Forest

• Coastal Salt Marsh

• Freshwater wet ands

• Littoral rainforest

BCD supports these areas of EEC being protected under the E2 and E3 zoning.

78. The BCD also referred to certain cleared areas, indicated on “Map 1” which was not in evidence, that were mapped as E3 zoning, but suggested it might be beneficial to rezone these areas to a “more suitable zoning”. The BCD advised that any zoning of these areas for the purpose of protecting cultural heritage values should be clearly explained.

Communications between Mr Tull of Council and Mr Stevens of the Lyon Group in August and September 2019

79. In August and September 2019, Mr Keith Tull of Council corresponded by email with Mr Myall Stevens on behalf of the Lyon Group. On 26 August 2019, Mr Stevens asked Mr Tull to send him Council’s correspondence with DPE on the strategy that Council intended to apply to the application of environmental zones, and any ecological assessments that had been undertaken to support the application of environmental zones to the land. Mr Stevens stated that it would be very helpful to understand what assessments Council had done as the Lyon Group were proposing a detailed assessment of the entire site in accordance with the Biodiversity Conservation Act 2016 (NSW).

80. On 24 September 2019, Mr Tull responded to Mr Stevens, stating that:

1. There is no specific letter from the Department of Planning. Council staff held a number of meetings with the Department during the preparation of the draft Plan through to issue of the Section 65 certificate. During these meetings general and specific matters were discussed including zoning methodology. At no time was the E zone methodology raised as an issue by the Department. In fact the Section 65 was issued based on Councils methodology. I have attached a copy of the formal advice from the Department of Conservation and Environment (at the time) which includes reference to zoning methodology.

2. As part of the preparation of the draft Plan Council did not carry out an ecological assessment of the Boydtown property. The methodology for E3 zoning included applying the zoning to land containing important environmental values (catchment protection or vegetation) with high levels of fragmentation. It should be noted that the proposed minimum lot size was based on Development Control Plan No 9 assessment criteria, topographical constraints, natural hazards and access.

Mr Tull’s summary of the 23 August 2019 meeting between Council and the Lyon Group

81. On 24 September 2019, Mr Tull sent an email to Mr Daniel Hovagimian of the Lyon Group summarising the outcomes of a meeting held on 23 August 2019 between Council and the Lyon Group (see below at [100]) as follows:

Outcomes of meeting

• Council would defer forwarding the additional information to DPIE in support of the Planning Proposal for the E3 zones

• Boydtown advised that, pending further advice from the Lyon Group, the intent was to implement the vision of Bruce Lyon and could not support E zoning of the land as proposed

• Council advised that Boydtown needed to review the proposed zoning having regard to Council's position, including E zoning.

• Further meeting to be held within 1 month to explore Lyon Group's proposal

• Boydtown to engage ecologist to address the environmental and site constraints as well as E zoning

WSP Boydtown Masterplan: Biodiversity Constraints Assessment

82. On 19 August 2020, Mr Stevens on behalf of the Lyon Group sent Council a planning proposal for all land at Boydtown under the control of the applicants. The email attached the document dated 13 August 2020 titled, “Boydtown MasterPlan: Biodiversity Constraints Assessment” prepared for the Lyon Group by WSP (referred to herein as the BCA Report).

83. The stated purpose of the assessment was to provide an understanding of the baseline biodiversity values of the land under the control of the applicants to further inform constraints and areas of sensitive ecological values for avoidance in the ongoing masterplan evaluation. In particular, two aspects of the assessment were the subject of submission by the applicants at the hearing before me.

84. In section 2.5.1, the BCA Report noted as follows:

2.5 Field Survey Limitations

2.5.1 Survey and Assessment

Survey and field investigation predominately targeted areas of the Subject Land within the proposed development footprint. Areas outside the development footprint may need additional targeted surveys if changes to the development footprint occur.

Detailed desktop assessment was undertaken prior to field surveys to identify the threatened biodiversity likely to occur in the locality and determine the field survey effort required for the scale of the project and its ecological context for a constraints assessment. However, the precise range of habitats utilised by some species is not well understood.

Furthermore, the discovery of hitherto unknown populations of threatened species, even well outside their known range, is always present. This applies particularly to cryptic species of plants and animals and plant species which can persist as soil seedbanks and easily go undetected despite intensive survey.

No sampling technique can totally eliminate the possibility that a species is present within the Subject Land. For example, some species of plant may be present in the soil seed bank and some fauna species use habitats on a sporadic or seasonal basis and may not be present within the Subject Lands during surveys.

85. In section 9.4, the BCA Report stated:

9.4 ADDITIONAL SURVEYS

The following additional surveys are recommended for the Subject land:

— Targeted amphibian surveys during spring - summer conditions or after significant rainfall events during spring – summer periods.

— Vegetation surveys and BAM plots within PCT plot data

— Additional targeted threatened species surveys throughout the Subject Land.

Council’s January 2021 request for an extension of time to complete the planning proposal

86. On 18 January 2021, Ms Thomson of Council sent an email to Mr Graham Judge, senior planning officer at DPE, seeking an extension of time to complete the planning proposal, noting that the Gateway Determination issued on 31 August 2017 to rezone and apply minimum lot size standards to land at Boydtown had conditioned a completion date of 31 August 2020.

87. On 21 January 2021, Ms Lees, as delegate of the Minister, responded to Council’s request for an extension of time to complete the planning proposal as follows (emphasis added):

I refer to Council's request seeking an extension of time to complete planning proposal PP 2017 BEGAV_003_01 for land at Boydtown.

While I acknowledge the benefits of the proposal to bring deferred land into the Bega Valley LEP 2013 and to provide environmental protection, I have determined, as delegate for the Minister, not to alter the Gateway determination which was originally issued on 31 August 2017. Council's request for a further extension to complete the planning proposal is denied because of the amount of time that has lapsed since the Gateway determination was issued and as there remain outstanding matters to be addressed before it can be finalised.

This decision is consistent with advice provided by the Department to Councils in 2020 on NSW Government planning reforms to streamline and simplify the planning system, including accelerating planning decisions. The intention of the reform program is for planning proposals to generally take 1 year and no more than 2 years for complex proposals to complete. This has been shown to be achievable in many cases where applications are supported by enough evidence to justify strategic and site-specific merit, and when proposals are aligned to a strong strategic planning framework. Further guidance on the planning reforms will be provided by way of updated planning proposal guidelines, expected to be released in February 2021.

I understand that the planning proposal has been progressing and as such it will remain active but identified as 'overdue'. It is therefore recommended that Council finalises the planning proposal as soon as possible. If the proposal cannot be finalised in its current form, it is suggested that Council formally advises the Department that it wishes to withdraw the planning proposal.

Council’s May 2021 Planning Proposal

88. On 29 April 2021, Ms Thomson of Council sent an email to Mr Judge at DPE headed “Agency exhibition of Boydtown proposal”, stating that she was preparing for the exhibition of the planning proposal as per the Gateway Determination. On 30 April 2021, Mr Judge emailed Ms Thomson with some “comments/advice” on the planning proposal, noting consultation between Council and the BCD, stating that in accordance with condition 1 of the Gateway Determination Council should send a revised planning proposal to DPE for endorsement prior to community consultation, and expressing his willingness to informally review any draft revised planning proposals for Boydtown that satisfied condition 1 of the Gateway Determination. On 30 April 2021, Ms Thomson sent a document to Mr Judge, noting “we did this a few years ago but mustn’t have sent it through – please see attached”. On 6 May 2021, Mr Judge provided comments to Ms Thomson in relation to that document, which he said he would treat as a working draft planning proposal used to consult with the BCD in 2014. Mr Judge stated that certain aspects of the 2019 planning proposal were outdated and required revision, including a response to comments from the BCD in 2019.

89. On 7 May 2021, Ms Thomson sent to Mr Judge a “revised planning proposal for review as per the Gateway Determination”. She stated that she had “updated the planning proposal as directed, but tried to leave as much original content” as she could.

90. Following an email from Mr Judge on 7 May 2021 with additional comments on the draft planning proposal, Ms Thomson further revised the draft. On 11 May 2021, Mr Judge sent an email to Ms Thomson querying whether Council or the BCD could access a vegetation map for the site that could be included in the planning proposal in order to provide a more detailed justification for the environmental zones. Ms Thomson responded on the same day in the following terms:

… I am very mindful of the time constraints around this project, and the fact that we do not have any resources allocated, and therefore have to be very specific about what we require others to do.

Can you please be very specific about exactly what changes Council is required to make to this planning proposal with regard to this and any other matters that we have not addressed so far.

My understanding from the previous response from BCD is that they are happy with the justification provided by the Council for the E zones.

91. Mr Judge responded, stating that he was:

…just wondering if council has access to a veg map for the site to add to the planning proposal. Just want to make sure council uses any available information to use in the PP. If not, OK.

92. Ms Thomson replied that “[i]f it is not necessary I would rather not make any further changes to the planning proposal”.

93. On 11 May 2021, Ms Thomson of Council sent Mr Judge at DPE the May 2021 Planning Proposal for endorsement by the Secretary. The May 2021 Planning Proposal made a number of changes to Part 3 ‘Justification’ of the January 2017 Planning Proposal. A number of additional paragraphs were added, and alterations made in relation to the following: Question 1 – “Is the planning proposal a result of an endorsed local strategic planning statement strategic study or report?”; Question 3 – “Will the planning proposal give effect to the objectives and actions of the applicable regional or district plan or strategy (including any exhibited draft plans or strategies)?”; Question 4 – “Will the planning proposal give effect to a council's endorsed local strategic planning statement or another endorsed local strategy or strategic plan?”; Question 5 – “Is the Planning Proposal consistent with applicable State Environmental Planning Policies”; and Question 6 – “Is the Planning Proposal consistent with applicable Ministerial Directions”.

94. In relation to Question 7 (“Is there any likelihood that critical habitat or threatened species populations or ecological communities or their habitats will be adversely affected as a result of the proposal?”), an additional paragraph provided as follows:

Consultation with the NSW Biodiversity Conservation Division was conducted prior to exhibition of this planning proposal as a requirement of the Gateway Determination. Additional information regarding biodiversity values is contained in their response in Attachment 3.

95. In relation to Question 11 (“What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway Determination?”), there was also additional text, condition 1 of the Gateway Determination being reproduced, followed by the following:

Consultation with the NSW Biodiversity Conservation Division was conducted in 2019 to fulfill these requirements of the Gateway Determination. The agency’s response stated that “in essence, BCD supports the planning proposal in particular the application of E2 Environmental Conservation and E3 Environment management zones. BCD considers this zoning to be the most appropriate zoning to protect the various environmental and Cultural heritage values across the site.” A copy of the agency’s full response is contained in Attachment 3.

Briefing Note to Ms Lees prior to the Endorsement Decision

96. The document containing the Endorsement Decision dated 19 May 2021 also contained what Ms Thomson described as a Briefing Note signed by Ms Lees, and recommending that the Director note and endorse the revised planning proposal in accordance with condition 1 of the Gateway Determination dated 31 August 2017 (as amended) (the Briefing Note). The Briefing Note provided as follows:

Background

Revised Planning Proposal May 2021

Bega Valley Shire Council has submitted a formal request dated 11 May 2021 (Attachment B) seeking the Department's endorsement of a revised planning proposal for PP _2017 BE GAV _003_00 (Attachment A) in accordance with the requirement of condition 1 of the Gateway determination dated 31 August 2017 (Attachment C) .

Consultation with DPIE Biodiversity and Conservation

Council consulted with DPIE Biodiversity and Conservation on a draft revised planning proposal in 2019 to satisfy condition 1 of the Gateway determination. DPIE Biodiversity and Conservation advised Council in July 2019 that that it supported the planning proposal to apply zones to protect environmental and cultural heritage values across the site (Attachment E). The advice is attached with the revised planning proposal.

DPIE Biodiversity and Conservation further indicated that the application of an E2 Environmental Conservation Zone was justified because the site provides habitat for a range of threatened species, has several areas of endangered ecological community and most of the site is flood prone.

Matters taken into account

176. I have decided that all that was required to be taken into account by Ms Lees in making the Endorsement Decision was the “amended Planning Proposal and any supporting maps and studies” referred to the Secretary. Those matters were considered by Ms Lees in making the Endorsement Decision. Those materials were summarised in the Briefing Note (referred to above at [96]), and were provided to Ms Lees as attachments to the Briefing Note (see above at [115]). Ms Lees gave specific consideration to those materials. I do not find that there was any failure to take into account a relevant consideration in making the Endorsement Decision.

177. It is not clear whether the applicants contended that Ms Lees failed to consider the May 2021 Planning Proposal. Rather, it seems that they contended that the May 2021 Planning Proposal did not, in fact, constitute an “amended and updated proposal”, and on that basis Ms Lees failed to consider an “amended Planning Proposal”, as required by the Gateway Determination. I do not accept any such contention. It is clear from a comparison of the January 2017 Planning Proposal and the May 2021 Planning Proposal that the latter was amended and updated, including in the respects identified at p 3 of the Briefing Note (see above at [96]). Whether or not the amendments to the January 2017 Planning Proposal were satisfactory (in the sense that they satisfactorily responded to the conditions set out in the Gateway Determination) is a question going to the merits of the May 2021 Planning Proposal. It is not relevant to the question of whether the Endorsement Decision was ultra vires.

178. I am satisfied that the May 2021 Planning Proposal constituted an “amended proposal”, and that that planning proposal was considered by Ms Lees in making the Endorsement Decision.

179. The first and third respondents submitted that even if the matters identified in the particulars to Ground 3 were “relevant considerations” required to be taken into account by the decision-maker prior to making the Endorsement Decision, Ground 3 should nonetheless be dismissed. I find that these matters were considered by Ms Lees, on behalf of the Secretary, prior to the making of the Endorsement Decision, as she deposed in her affidavit and summarised above at [116]–[120].

180. Accordingly, Ground 3 is dismissed.

Whether Council failed to take into account mandatory relevant considerations in making its approval decision (Ground 4)

181. In relation to Ground 4, the applicants submitted that in making the approval decision, Council was obliged to consider the BCA Report. It is clear that the BCA Report was not before the councillors at Council’s meeting on 23 August 2021, and that the material that was before Council was devoid of any consideration of the BCA Report.

182. The applicants further submitted that in making the approval decision, Council failed to take into account relevant considerations, being the provisions of the Gateway Determination particularised in [4(a)] of the further amended summons, and that Council was required to do the following in accordance with condition 1 of the Gateway Determination:

1. update the January 2017 Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use;

2. confirm what criteria had been used for applying an environmental zone, such as the presence of native vegetation communities, and confirm how the presence of these ecological attributes have been verified; and

3. consult with the OEH and DPE regarding the proposed zones and the development standards.

183. Council, noting that an identical contention in relation to the Endorsement Decision was made in relation to Ground 3 against the third respondent, adopted the third respondent’s submissions concerning the applicable principles in relation to mandatory relevant considerations, and the submission regarding a challenge to a decision not sourced in statute, and the legal limits of non-statutory actions. Council submitted that Ground 4 could only be made out if Council was bound to take into account the particulars to Ground 4(a).

184. Council further submitted that “in place of” the particulars to Ground 4, the applicants had contended that Council was obliged to consider the BCA Report. If this was an amendment to the (further amended) summons, the applicants required the Court’s leave to amend. In any event, if leave were granted, the Gateway Determination did not impose any express obligation on Council to give consideration to the BCA Report.

185. Further, if the amended pleading departed from the requirements of the Gateway Determination, Council opposed any such amendment and contended that the relief should be specifically pleaded. ^[27] Council submitted that the evidence “closed” on 26 November 2021 when the affidavits of Ms Thomson and Mr Van Bracht were sworn. There was no motion before the Court to amend the (further amended) summons, and the applicants ought not be permitted to amend at the hearing when they had had some 12 months to consider their case and the evidence. This would, they contended, be contrary to ss 56 to 58 of the of the Civil Procedure Act 2005 (NSW).

     27. Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 604.

186. In any event, Council submitted that it did take those matters into account in making its approval decision in that:

1. the planning proposal was updated after consultation with the BCD in the form of the May 2021 Planning Proposal (see Briefing Note above at [96]);

2. it confirmed the criteria used for applying an environmental zone in the Zoning Report prepared in March 2019, provided to DPE on 14 March 2019 (see above at [75]); and

3. it consulted with OEH and DPE in relation to the proposed zones (see above at [75] and [116]).

187. Further, Council submitted that the applicants’ consultant made a written submission dated 25 June 2021 upon the public exhibition of the May 2021 Planning Proposal, and Ms Thomson reviewed that submission and prepared a report to the elected representatives.

188. In the alternative, Council relied upon s 56(8) (now s 3.34(8)) of the EPA Act which provides that a failure to comply with a requirement of a gateway determination under s 56 in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once made (other than in relation to a failure to undertake community consultation which is not presently relevant). In relation to this submission, the applicants submitted that once the planning instrument is made, it becomes a local environment plan subject to the time barring provision in s 3.27 of the EPA Act (previously s 35), which provides that an environmental planning instrument should not be challenged in court after three months of the date of its publication. The applicants contended that reading s 56(8) in the way Council invited it to be read would be patently inconsistent with the broad nature of the time bar in s 3.27.

189. In relation to the construction of s 56(8), the applicants also relied on Tugun Cobaki Alliance Inc v Minister for Planning (Tugun Cobaki Alliance), where Jagot J addressed whether the proposed interpretation of the now repealed subsection 75X(5) of the EPA Act to “cure all” procedural breaches would offend basic principles of construction and set the rule of law aside. ^[28] The applicants accepted that the former s 75X(5) is in different language to that of s 56(8), but submitted its terms, substantively, are not distinguishable. Subsection 75X(5) (since repealed) provided:

(5)  The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.

28. [2006] NSWLEC 396 at [179]-[184] (Jagot J).

190. Jagot J found that there was no breach of any provision, the breach of which would lead to invalidity. ^[29] Her Honour observed that s 75X(5) was to be “construed as an expression of Parliament’s intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3).” The word “only” in s 75X(5) should not imply a consequence to “cure” breaches of any other provision; a far clearer expression of parliamentary intention would be required to effect such a meaning. Rather, the consequences of breach of all other provisions should be determined in the ordinary course consistent with the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky). ^[30]

     29. Tugun Cobaki Alliance at [184].

     30. Tugun Cobaki Alliance at [184] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

191. In relation to Ground 4, I find that the Gateway Determination did not impose any obligation on Council, at the level of specificity contended by the applicants, to consider the BCA Report. I also find that Council took the matters particularised in [4(a)] of the further amended summons, referred to at [29(1)–29(3)] above, into account.

192. In any event, the effect of s 56(8) (now s 3.34(8)) of the EPA Act is that a failure to comply with a requirement of a gateway determination under s 56 does not prevent the instrument from being made, or invalidate the instrument.

193. Accordingly, Ground 4 is dismissed.

Whether Council’s approval decision was ultra vires for failure to comply with the time requirements of the Gateway Determination (Ground 5)

194. Ground 5 directs attention to the Minister’s refusal to extend time for the submission of an “updated” planning proposal. The applicants submitted that the planning proposal was “overdue” from the expiry of the (extended) deadline of 31 August 2020 to at least the Council resolution of 18 August 2021. They submitted that the Minister had power to extend time for compliance under s 3.34(7) of the EPA Act, such power likely able to extend time nunc pro tunc. However, the Minister had determined not to exercise that power, with the effect that the 31 August 2017 Gateway Determination and the planning proposal could no longer be said to be of operative effect.

195. Council submitted that its approval decision was not ultra vires, and that notwithstanding the Minister’s power under s 3.34(7) to extend time, s 3.34(8) cured any procedural defect. Council submitted that s 3.34(8) of the EPA Act provides a complete answer to Ground 5.

196. In relation to Ground 5, as in relation to Ground 4, I find that s 56(8) (now s 3.34(8)) of the EPA Act provides a complete answer to Ground 5. Accordingly, Ground 5 is dismissed.

Whether Council’s approval decision was ultra vires for denying the applicants procedural fairness (Ground 6)

197. In relation to Ground 6, the applicants contended that Council denied them procedural fairness when it represented to them that Council would provide the BCA Report to DPE. The representation was said to be both explicit and implied from the following: Council’s attitude to the commissioning of the assessment; Council’s undertaking to not proceed to Gateway until the BCA Report was received; Council’s collaborative approach to the issues raised in the BCA Report; the terms of the Gateway Determination; the fact that time had expired to comply with the Gateway Determination; and the failure of Council to commission its own ecological surveys.

198. Council submitted that the applicants had not addressed the antecedent question as to whether there was imposed on Council a duty to afford procedural fairness in the context of its approval decision, citing Spigelman CJ in Minister for Local Government v South Sydney City Council. ^[31] There his Honour said at [15]:

As Kioa v West and Annetts v McCann, as well as many other authorities makes clear, the determination of the existence, scope and content of the duty to afford procedural fairness requires careful consideration of the statutory power.

31. (2002) 55 NSWLR 381; (2002) 123 LGERA 367; [2002] NSWCA 288.

199. The principles in relation to procedural fairness in administrative decisions were articulated in Kioa v West (Kioa),^[32] and endorsed in Annetts v McCann (Annetts). ^[33] In Annetts, Mason CJ, Deane and McHugh JJ said at 598:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

32. (1985) 159 CLR 550 at 584; [1985] HCA 81 (Mason J).

33. (1990) 170 CLR 596; [1990] HCA 57 (Mason CJ, Deane and McHugh JJ).

200. The applicants relied on Harvey v Minister Administering the Water Management Act (Harvey),^[34] and Calardu Penrith Pty Ltd v Penrith City Council (Calardu). ^[35] They emphasised the following paragraphs in the reasons of Jagot J in Harvey: ^[36]

101. The authoritative test for the application of the requirements of procedural fairness is whether the exercise of power may destroy, defeat or prejudice a person’s rights, interests and legitimate expectations (Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; 101 LGERA 297 at [53] citing Annetts v McCann (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. See also Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [56]-[57]).

…

114. The fundamental principle if the duty applies is that a party liable to be directly affected be given an opportunity to be heard. This would “ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”…This involves an entitlement to have the party’s mind “directed to the critical issues or factors on which the decision is likely to turn” if those matters are not obvious from the nature of the decision or the terms of the statute under which it is made…

34. [2008] NSWLEC 165; (2008) 160 LGERA 50 at [98]-[118] (Jagot J).

35. [2010] NSWLEC 50 at [171]-[177] (Biscoe J).

36. Harvey at [101], [114].

201. Mr Galasso SC for the applicants submitted that there, the obligation of procedural fairness arose by way of the inter‑parties dialogue between the applicants and Council in the form of an “agreement” that the applicants would commission the BCA report.

202. The applicants referred to Aronson et al in relation to the representations said to have been made by Council: ^[37]

The fact that the government or a decision-maker has given an undertaking or representation bearing upon a decision can clearly affect both the application and content of the procedural fairness in relation to that decision.

37. Aronson et al at p 442, [7.200].

203. The applicants also relied on the decision of Tobias JA in Lesnewski v Mosman Municipal Council,^[38] where his Honour held that a complete denial of procedural fairness is an “inviolable limitation or restraint” which cannot be protected by privative clauses or time bar clauses such as the former s 101 of the EPA Act, which prevented the challenge of a consent or complying development certificate after three months from the date on which public notice was given.

     38. [2005] NSWCA 99; (2005) 138 LGERA at [76]-[79].

Consideration of the existence of a duty of procedural fairness on the part of Council

204. I commence by considering the relevant statutory provisions which bear upon the existence of a duty to afford procedural fairness on the part of Council in relation to the approval decision.

205. Part 1 of Schedule 1 to the EPA Act contains “mandatory community participation requirements”. In particular, item 4 in Division 1, Part 1 provides for community participation in planning proposals as follows:

4 Planning proposals for local environmental plans subject to a gateway determination (Division 3.4) (cf previous s 57)

Minimum public exhibition period for planning proposals for local environmental plans subject to a gateway determination—

(a) if the gateway determination for the proposal specifies a period of public exhibition—the period so specified, or

(b) if the gateway determination for the proposal specifies that no public exhibition is required because of the minor nature of the proposal—no public exhibition, or

(c) otherwise—28 days.

206. Division 4, Part 1 of Schedule 1 also outlines mandatory notification requirements for applications and decisions. Division 3.4 of Part 3 of the EPA Act concerns local environment plans. Some of the provisions involving community consultation are as follows.

207. Subsection 3.35(1) of the EPA Act provides:

3.35   Planning proposal authority may vary proposals or not proceed

(cf previous s 58)

(1)  The planning proposal authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

208. Subsection 3.36(2) of the EPA Act provides:

3.36   Making of local environmental plan by local plan-making authority

(cf previous s 59)

(2)  The local plan-making authority may, following completion of community consultation—

(a)  make a local environmental plan (with or without variation of the proposals submitted by the planning proposal authority) in the terms the local plan-making authority considers appropriate, or

(b)  decide not to make the proposed local environmental plan.

209. Section 3.37 of the EPA Act provides:

3.37   Regulations

(cf previous s 60)

The regulations may make further provision with respect to the making of environmental planning instruments under this Division, including—

(a)  requirements with respect to consultation about proposed instruments by a planning proposal authority with particular persons or bodies, and

(b)  requirements with respect to planning proposals and the submission of other related reports and documents, and

(c)  requirements with respect to advertising in connection with community consultation on proposed instruments, and

(d)  provisions relating to consultation by the Planning Secretary with relevant planning authorities and others on the drafting of proposed instruments, and

(e)  requirements for concurrence of public authorities in relation to the reservation of land for a purpose referred to in section 3.14(1)(c).

210. The applicable regulations at the time of Council’s approval decision were the Environmental Planning and Assessment Regulation 2000 (EPA regulations), now repealed and replaced by the Environmental Planning and Assessment Regulation 2021, which commenced on 1 March 2022. Part 2 of the EPA regulations concerned local environment plans. As at the commencement of the EPA regulations on 1 January 2001, Part 2 contained Division 3, “public participation” provisions, however these were no longer included in the EPA Regulations as at 19 August 2020, when the applicants provided to Council the BCA Report. Therefore, the community consultation requirements for the planning proposal are to be found only in the EPA Act.

211. In Vanmeld Pty Ltd v Fairfield City Council (Vanmeld),^[39] the Court of Appeal was required to determine whether Fairfield City Council owed to the applicant an obligation to afford procedural fairness in amending a specific clause of a draft local environmental plan without publicly exhibiting that amendment for community consultation. In dissent, Spigelman CJ held that the amendment to the clause impinged on the right and interests of the small group of impacted landowners in a “direct and immediate way”, ^[40] and that the legislative requirement of a community wide consultation was not the equivalent of, or exhaustive of, obligations to consult by reason of an intrusion upon private rights and interests. ^[41]

     39. (1991) 46 NSWLR 78; [1999] NSWCA 6.

     40. Vanmeld at [80] (Spigelman CJ).

     41. Vanmeld at [92] (Spigelman CJ).

210. The majority disagreed. Meagher JA found that the EPA Act specified exactly to what extent procedural fairness must be accorded to a ratepayer. ^[42] Powell JA found that Pt III of Div 4 of the EPA Act (as it then was) indicated a legislative intention that outside those statutory requirements to notify and consult, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument. ^[43]

     42. Vanmeld at [182] (Meagher JA).

     43. Vanmeld at [190] (Powell JA).

211. In Bailey v Ku-ring-gai Council (Bailey),^[44] the applicants sought judicial review of Council’s decision to vary a planning proposal to amend Schedule 5 of Ku-ring-gai Local Environmental Plan 2015 (KLEP). The planning proposal sought to remove four properties from the schedule as items of local heritage, including the applicants’ property. Council amended the KLEP to remove three properties as local heritage items, but not the applicants’ property. The applicants contended that they were denied procedural fairness as they were notified too late of the change in recommendation to retain the heritage listing of their property, and as such did not have sufficient time to obtain expert heritage advice in response to the change in recommendation. Council relied on Vanmeld in contending that there was no common law duty to accord procedural fairness, as the statutory provisions in Div 3.4 of Part 3 of the EPA Act indicated a legislative intent that except to the notification and consultation requirements, Council was not subject to any duty to accord procedural fairness.

     44. [2019] NSWLEC 35 (Preston CJ) (Bailey).

212. In Bailey, Preston CJ held that:^[45]

77. …there is force in the Council’s contention that the Council’s obligation to notify and consult with Mr and Mrs Bailey, as persons affected by the planning proposal, about the planning proposal is limited to the requirements to notify and consult provided for in Div 3.4 of Part 3 of the EPA Act. In particular, the obligation to notify and consult concerning a revised planning proposal is limited to what is required by s 3.35 of the EPA Act. The Council has not been shown to have not complied with these statutory requirements to notify and consult concerning the planning proposal and the revised planning proposal.

45. Bailey at [77].

Disposition of Ground 6

215. In relation to Ground 6, I find that the applicants have not discharged their onus of satisfying the Court that Council failed to comply with the relevant statutory requirements to notify and consult with them in making the approval decision. I do not consider that Council’s statutory obligations to notify and consult with the applicants about the planning proposal provided for in Div 3.4 of Part 3 of the EPA Act and Part 1 of Schedule 1 to the EPA Act extended so far as to providing the BCA Report to DPE.

216. I find that Council complied with its statutory obligation to notify and consult with the applicants as follows. In correspondence to the applicants’ Mr Stevens dated 29 March 2021, Mr Tull advised that Council’s application to extend the date for the Gateway Determination had been refused on the basis of advice to councils that the Government was committed to accelerating planning decisions in line with updated planning proposal guidelines which were expected to be released shortly (see above at [87]). Mr Tull advised Mr Stevens that it had been “emphasised by DPIE that any future planning proposals for the area need to align with the recommendations and conclusions of the Southern Joint Regional Planning Panel ‘Pre-Gateway & Planning Proposal Review’ dated 10 March 2015.” Mr Tull acknowledged the significant work done, but advised “there are several issues in the current draft that require further consideration”.

217. One month later, by letter dated 28 April 2021 to Mr Stevens, provided by email of the same date, Dr Howe referred to the correspondence of 29 March 2021, and confirmed a change in circumstances beyond Council’s control in relation to the need to finalise the planning proposal. Dr Howe also advised that the application to DPE to extend the Gateway Determination had been refused, and that the relevant DPE coordinator had informed Council that plans needed to be put in place to ensure the outstanding planning proposal was completed by the end of 2021. Dr Howe wrote (emphasis added):

Council acknowledges that a significant amount of work has recently been commissioned by [sic] towards addressing many of the issues raised by Council and the JRPP relating to this land, and Council remains committed to continue to work with Lyon Group to finalise a zoning scheme and development standards for the whole site. Please note that finalisation of the 2017 planning proposal does not prevent a future planning proposal being lodged to amend the zoning or lot size standards that may be applied through this process.

218. By email dated 11 August 2021, Council informed the applicants of its report and recommendation in relation to the May 2021 Planning Proposal which was to be considered at Council’s meeting on 18 August 2021. The applicants were advised that a copy of the report was available on Council’s website, and of the opportunity afforded them “to present to Councillors on this matter on 18 August 2021 outside the usual Public Forum.”

219. Mr Stevens responded on the same day. Ms Thomson’s reply by email dated 12 August 2021 attached Council’s letter to DPE dated 6 August 2021 in relation to the applicants’ concern about a presumption against recently rezoned land in the planning proposal process. Council sought clarification as to whether finalisation of the current planning proposal would “materially affect the owner’s prospects of achieving a future planning proposal” should one be endorsed by Council and the Secretary. Council’s 6 August 2021 letter to DPE advised:

To date the owner of the land has not produced a planning proposal that Council has been able to support. Council acknowledges that the owner has made significant progress towards a planning proposal that Council could endorse, including lodgement of a new planning proposal in this last couple of weeks, the timeframe for completion of that work is unclear. Council has been proceeding with the current planning proposal because the land is deferred from BVLEP 2013 and the proposed zones and lot sizes were endorsed by the Southern Joint Regional Planning Panel.

220. On 11 August 2021, Ms Lees responded that she “would like to confirm that any decision on this proposal does not prevent the submission of a new planning proposal for the land in the future” (emphasis added). On 17 August 2021, Ms Thomson sent the applicants the memo provided to senior Council officers and elected representatives containing background information on the May 2021 Planning Proposal and the planning proposal submitted by the applicants which said that Council had had “an initial review”, but advised that “several more detailed specialist reports or additions to existing reports and plans may be required”.

221. The transcript of Council’s meeting on 18 August 2021 records that following a question from Councillor Fitzpatrick seeking clarification about “an environmental study” not provided to the councillors, Dr Howe confirmed that Council had received an ecological study in relation to a new planning proposal by the Lyon Group which Council officers were reviewing, but that the planning proposal before Council sought to address the JRPP’s requirements (and DPE’s requirements), and to “present a clean slate for the Lyon Group’s subsequent planning proposal to be considered by Council and agencies in due course”.

222. The transcript of the meeting also records that Dr Howe said:

Dr Howe: … if the Council defers the Council planning proposal, then the Lyon Group planning proposal would need to address the matters that the JRPP determined in 2015. So in that sense it would be a retrograde step for the Lyon Group, because they would have to address those matters which is essentially the planning proposal before you today, before they can progress to the planning proposal that they ultimately wish to see realised for the site.

Cr Bain: So the long and short of it is, if we don’t operate within the timeframe set out by the New South Wales Government, they’ll have to start at the very beginning again.

Dr Howe: Through you, Mr Mayor, that’s correct.

223. I am satisfied that the actions referred to above at [216]–[222] establish that Council complied with its statutory obligations to notify and consult with the applicants provided for in Div 3.4 of Part 3 of the EPA Act and Part 1, Schedule 1 to the EPA Act.

224. To the extent that it is contended that Council was subject to and failed to discharge a common law duty of procedural fairness in the context of its approval decision, I do not consider that, in the present matter, any such duty extended so far as to providing the BCA Report to DPE. The applicants were notified of their opportunity to address the councillors prior to making the approval decision, and advised of the opportunity to submit a new planning proposal in the future.

225. Accordingly, I dismiss Ground 6.

Conclusion

226. For the reasons given above at [121]–[136], I decline to grant leave under r 59.10 UCPR to extend the time for the applicants to advance Grounds 1 and 2 against the Minister. Accordingly, Grounds 1 and 2 are dismissed on the basis that they are time-barred. In any event, Grounds 1 and 2 are dismissed for the reasons set out at [145]–[164].

227. For the reasons given above at [165]–[180], Ground 3 is dismissed on the basis that in making the Endorsement Decision, Ms Lees did not fail to take into account the matters stipulated in condition 1 of the Gateway Decision.

228. For the reasons given above at [181]–[193], Ground 4 against Council is dismissed on the basis that if Council was required to take into account the relevant considerations as alleged by the applicants, it did in any event take those considerations into account in making its approval decision.

229. For the reasons given above at [194]–[196], Ground 5 against Council is dismissed on the basis that the timing of Council’s decision did not render it ultra vires, invalid and of no effect.

230. For the reasons given above at [197]–[225], Ground 6 against Council is dismissed on the basis that if Council owed a common law duty of procedural fairness in making its approval decision, it did not deny the applicants procedural fairness. Further, Council complied with its statutory obligations of notification and consultation in Div 3.4 of Part 3 of the EPA Act and Part 1 of Schedule 1 to the EPA Act.

Orders

231. The Court makes the following orders:

1. The summons, as further amended on 17 April 2023, is dismissed.

2. Each of the parties to provide written submissions, no longer than 10 pages in length, on the question of costs by Wednesday, 10 May 2023.

Addendum made on 10 May 2023

232. On 10 May 2023, the solicitor for the first and third respondents, with the consent of the applicant, informed the Court, that the applicant and first and third respondents had reached agreement on the question of costs, and requested I vacate order (2) of my orders of 3 May 2023 as it related to the first and third respondents and order that the applicant pay the costs of the first and third respondents in the amount of $50,000 by 11 July 2023.

233. Also on 10 May 2023, the solicitor for the second respondent, with the consent of the applicant, informed the Court that the applicant and second respondent had reached agreement on the question of costs, and requested I vacate order (2) of my orders of 3 May 2023 as it related to the second respondent and order that the applicant pay the requested the Court order, with the consent of the applicant, that the applicant pay the second respondents costs on the ordinary basis as agreed or assessed. Accordingly, I make the following orders.

234. The Court orders that:

1. Order (2) of the orders of Pritchard J delivered on 3 May 2023 is vacated.

2. The applicants pay the costs of the first and third respondents in the amount of $50,000 by 11 July 2023. 

3. The applicants pay the costs of the second respondent on the ordinary basis as agreed or assessed.

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Endnotes

Amendments

10 May 2023 - Addendum made on 10 May 2023 at [232]-[234].

Decision last updated: 10 May 2023