Bungendore Residents Group Inc v Palerang Council (No 3) - [2007] NSWLEC 251

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Bungendore Residents Group Inc v Palerang Council and Anor (No 3) [2007] NSWLEC 251

PARTIES: APPLICANT
Bungendore Residents Group Inc
FIRST RESPONDENT
Palerang Council
SECOND RESPONDENT
Navaroo Constructions Pty Ltd

FILE NUMBER(S): 40302 of 2005

CORAM: Pain J

KEY ISSUES: Judicial Review :- whether clause in LEP is a precondition to exercise of power to grant deveopment consent - whether "detailed analysis" provided to the Council as required by LEP - whether regard had to clause in DCP requiring site plan - whether designated development requiring an environmental impact statement - whether failure to take into account mandatory relevant consideration under LEP of existence of practical building precinct

LEGISLATION CITED: Associations Incorporation Act 1984
Community Land Development Act 1989
Community Land Management Act 1989
Environmental Planning and Assessment Act 1979 s79C
Environmental Planning and Assessment Amendment (Designated Development) Regulation 2007
Local Government Act 1919
Local Government Act 1993 s68
Shoalhaven Local Environment Plan 1985 cl 9(3)
Yarrowlumla Council Development Control Plan (2005)
Yarrowlumla Local Environment Plan 2002

CASES CITED: Bungendore Residents Group Inc v Palerang Council & Anor [2006] NSWLEC 557;
Bungendore Residents Group Inc v Palerang Council & Anor (No 2) [2007] NSWLEC 67;
Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13 July 1993, unreported);
Centro Properties Limited v Hurstville City Council & Anor (2004) 135 LGERA 257;
Clifford v Wyong Shire Council (1996) 89 LGERA 240;
Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135;
Coffs Harbour City Council v Arrawarra Beach Pty Limited [2006] NSWLEC 365;
Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365;
Franklins Ltd v Penrith City Council & Anor [1999] NSWCA 134;
Gee v Council of the City of Sydney & Ors [2004] NSWLEC 581;
Hospital Action Group v Hastings Municipal Council (1993) 80 LGERA 190;
Kindimindi v Lane Cove Council (2006) 143 LGERA 277;
King v Great Lakes Council (1986) 58 LGRA 366;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985-6) 162 CLR 24 ;
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435;
Parramatta City Council v Hale & Anor (1983) 47 LGRA 319 Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor (1999) 110 LGERA 130;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74;
Skouteris v Auburn City Council And Anor [2005] NSWLEC 207;
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254;
Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55;
ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190;
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376;
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707;
Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 21 August 2006
22 August 2006
23 August 2006
11 September 2006
12 December 2006 (Mention, Notice of Motion to reopen case)
9 February 2007 (Hearing on Notice of Motion to reopen case)
15 February 2007 (Judgment on Notice of Motion)
2 April 2007 (Hearing on further ground)

DATE OF JUDGMENT:
15 May 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr J Johnson
SOLICITORS
Environmental Defenders Office
FIRST RESPONDENT
Submitting appearance
SECOND RESPONDENT
Mr C Leggat SC
SOLICITORS
Harris & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

15 May 2007

40302 of 2005 Bungendore Residents Group Inc v Palerang Council and Navaroo Constructions Pty Ltd (No 3)
JUDGMENT

1 Her Honour: The Applicant is an association incorporated under the Associations Incorporation Act 1984. It commenced these Class 4 proceedings challenging the decision of Palerang Council to grant numerous development consents to the Second Respondent and seeking declarations of invalidity of those consents and consequential orders. The Council has filed a submitting appearance save as to costs and did not appear at the hearing.

2 The land to which the development consents relate is within the Palerang Council local government area at Bungendore. Palerang Council was proclaimed on 11 February 2004 with the amalgamation of part or all of the former Yarrowlumla, Tallaganda, Gunning and Mulwaree local government areas. Palerang Council was originally named Eastern Capital City Regional Council.

3 On 6 January 2005 the Council granted to the Second Respondent the following development consents, subject to conditions:

(i) Notice of Determination of Development Consent 2004/DEV – 007 for a 47 lot subdivision of the land comprised in Lots 19, 20, part Lot 21 and 22 in deposited plan (DP) 1062506

(ii) Notice of Determination of Development Consent 2004/DEV – 008 for a 44 lot subdivision of the land comprised in Lots 19, 20 and 22 in DP 1062506

(iii) Notice of Determination of Development Consent 2004/DEV – 00118 for a 44 lot subdivision of the land comprised in Lots 19, 20 and 22 in DP 1062506, and

(iv) Notice of Determination of Development Consent 2004/DEV – 00119 for a 47 lot subdivision of the land comprised in Lots 19, 20, part Lot 21 and 22 in DP 1062506

4 DEV-118 is very similar to DEV-008 except that it has slightly different road widths. DEV-119 is very similar to DEV-007 except that it has slightly different road widths.

5 Lots 19, 20 and 22 in DP 1062506 are owned by the Second Respondent. Lot 21 is owned by Graham Raymond Hawke and Pamela Jane Hawke who gave owners’ consent to the Second Respondent lodging development applications in relation to part of Lot 21. Lots 19, 20, 21 and 22 are collectively known as 70-74 Trucking Yard Lane, Bungendore (“the land”). The Hawkes were asked during the hearing whether they wished to be joined as a party in these proceedings and declined.

6 The land is subject to the Yarrowlumla Local Environment Plan 2002 (“the YLEP”). It is zoned 2(v) Village under cl 9 of the YLEP. The development the subject of the development applications is permissible with consent of the Council. The land is not connected to the existing water supply and sewer in Bungendore. As each proposed lot the subject of the development consents had an area exceeding 1,000m2, the Council had the power to grant consent provided that it complied with cl 22(3) of the YLEP.

7 Each development application lodged by the Second Respondent sought approval for a community title subdivision proposed to be created under the Community Land Development Act 1989 and the Community Land Management Act 1989. Included with each application was a community plan of subdivision and a Community Management Statement.

8 Each application was also accompanied by a detailed Statement of Environmental Effects ("SEE") which had appended to it the Water Cycle Management Study prepared by Martens & Associates Pty Ltd, consulting engineers (“the Martens report”) dated 16 September 2004. In accordance with that study, the Second Respondent proposed that each lot be connected to a waste management system operated and managed by the community association.

9 The waste management system comprises a sewage management scheme and a reclaimed water management scheme. A private sewage treatment plant (“STP”) will be constructed on Lot 1 being the community lot in each subdivision. Each lot will be connected to the STP. The community lot will also house the control shed for the STP and contain:

(a) a reclaimed water storage tank in which reclaimed water is temporarily detained following treatment, and

(b) a stormwater capture and treatment tank in which stormwater is temporarily detained and treated and which will also be used as a reserve water supply tank and for fire fighting purposes

10 A dwelling house erected on a lot will be supplied with potable water from a 125kl tank on the lot and be connected to the community waste management system. Waste water generated within the subdivision will be disposed of following treatment using sub-surface irrigation via a reclaimed water irrigation field to be constructed on each lot. The reclaimed water irrigation field can be in one or more parts on each lot and will have a minimum area of 175m2 on each lot.

Process before the Council

11 The two development applications (DA 2004/DEV-0007 and DA 2004/DEV-00119) for a 47 lot subdivision were lodged with the Council in July 2004 and September 2004 respectively. The two development applications for a 44 lot subdivision (DA 2004/DEV-0008 and DA 2004/DEV-00118) were lodged with the Council in July 2004 and September 2004 respectively. The DAs were supported by a SEE which included the Martens report. A solar assessment report of Mr Newbold, urban planner, considering the solar rating of allotments in the context of the YLEP and DCP controls for setbacks, inter alia, was also included. The SEE stated that the building envelopes for the lots were not shown as the development applications did not include the erection of dwellings.

12 Dr Martens addressed a Palerang Council councillors’ meeting and a public meeting about the proposed waste management system on 29 November 2004. Mr Guy Boncardo of the NSW Department of Commerce addressed the meeting and regarded favourably the system proposed by Dr Martens.

13 A Peer Review of the Water Cycle Management Study for DA 2004/DEV-007 dated 13 December 2004 by the NSW Department of Commerce was provided to the Council which identified some matters the Council should consider in its deliberations.

14 In a short letter dated 15 October 2004, the Southern Area Health Service expressed some concerns in relation to all four DAs because the STP was located in close proximity to several residential blocks in the proposed subdivision with potential noise and odour effects. The minimum required area for reclaimed water disposal on residential allotments was considered inadequate.

15 The Council planning officer’s single report dated 21 December 2004 for all four DA's was prepared for a Council meeting on 21 December 2004. This referred to relevant planning instruments and material provided by the Applicant. A summary and analysis of the Peer Review by the NSW Department of Commerce was also provided, and it also considered briefly the Southern Area Health Service letter.

16 The development consents were granted subject to conditions by the Council on 6 January 2005.

Development consent conditions common to all four consents relevant to the parties’ arguments

Final design

Reason: to allow for minor variations to the subdivision layout which become necessary as a result of the detailed final survey and to ensure that the boundaries and building envelopes, when surveyed and drawn on the final subdivision plan, are consistent with the requirements of the local environmental plan, development control plan and the approval.

…

Building Envelopes & Effluent Re-Use fields

The applicant shall include the location of the effluent re-use fields on the final subdivision plans, and amend the community manage [sic] statement to Council’s satisfaction, preventing the erection of structures thereon, or other activities that would lead to soil compaction of these areas of the site.

Reason: To ensure that the sites for future dwelling houses and other buildings are determined and assessed prior to registration of the new lots. To ensure that effluent re-use areas are clearly defined, and ensure that their function remains unimpeded by other activities and improvements on the new allotments.

Further applications for dwellings shall include a 130 KL water tank to provide a potable water supply for dwellings. Minimum roof capture areas for potable water shall be not less than 250m2.

Reason: To ensure that adequate potable water supply is provided to future development of the new lots.

Water Cycle Management
Reclaimed Water Re-use System Design Requirements
23 The effluent management system shall be constructed in accordance with the Water Cycle Management study, prepared by Martens & Associates, dated 16 September 2004, submitted with the application, as amended by Council’s conditions and shall incorporate the following:

23.1 Completion of the Effluent Management System is required, prior to the release of the approved linen plans.

23.2 Total field area shall not be less than 175 square metres for each allotment.

23.4 Reclaimed water shall be pumped from the non-potable storage tank to allotments via a series of 50mm (minimum diameter) polyethylene distribution mains to re-use fields in each allotment storage. A separate series of distribution mains is to be provided for additional non-potable external use at individual allotments.

23.5 A pressurised irrigation system shall be used to evenly disperse reclaimed water over the entire re-use fields.

23.6 A 25mm manifold is to be installed along the edge of each re-use field with distribution laterals running from it.

23.7 Reclaimed water distribution mains shall be fixed in place through burial to depth of not less than 100mm.

23.8 Reclaimed water shall be distributed to a series of small aggregate filled micro trenches constructed parallel to the site contours. In this regard the applicant shall submit a detailed contour plan to Council, prior to the final design of the system.

23.9 Micro trenches shall be 200-300mm wide and a minimum depth of 300mm. Micro trenches shall be filled with 200mm of durable aggregate (10-20mm covered by geotextile layer, then backfilled with 100-150mm of topsoil to allow for settling). In situ topsoil is to be used wherever practical.

23.10 Irrigation laterals shall be centrally placed within the aggregate fill.

23.11 Micro trenches shall have centres spaced at maximum 1.5 metre intervals area.

23.12 Micro trenches shall generally not encroach closer than 6 metres if up gradient and 3 metres down gradient of buildings, driveways and drainage channels. In the event that lesser distances are necessary, the written clearance of the consulting engineer (Martens & Associates) will be required in each case.

23.13 Pressure compensating drip line shall be used for distribution of the reclaimed water within the micro trenches. Only products designed specifically for subsurface applications of reclaimed water shall be used in the micro trenches. The use of drilled poly pipe for reclaimed water re-use is not approved; as such systems may experience uneven reclaimed water distribution and incur intrusion of roots resulting in clogging.

23.14 Prior to release of the approved linens, written clearance from the consulting engineer (Martens & Associates), certifying that the systems have been installed in accordance with his specifications is to be submitted to Council.

23.15 All allotments shall be provided with access to additional reclaimed water supplies for garden irrigation. However such access is to be via subsurface irrigation systems, and not by means of any above ground reticulation, which are considered to present too great an environmental health risk in residential subdivision of this kind.

23.16 In the event that an alternative irrigation system is determined as more appropriate, the approval is required to be formally modified pursuant to S-96 of the Environmental Planning and Assessment Act, 1979.

Reason: Maintain environmental health standards, and ensure that effluent re-use areas do not adversely affect general residential amenity.
Restriction to User

51 The applicant is to include under a Section 88B Instrument attaching to the title of the proposed lots a ‘Restriction as to User’ prohibiting vehicular access across the boundaries of the lots to Hoskintown Road. Any existing entrances onto Hoskinstown Road from the proposed lots shall be fenced off and closed.

Reason: Requirement to restrict unsafe access from/to Hoskinstown Road.

A minimum 6m wide bitumen surfaced laneway with adequate drainage shall also be provided from the cul-de-sac off proposed Road 3 to serve proposed Lots 20, 21 and 22 in order to comply with Traffic Committee requirements.

The alignment and configuration of the laneway shall be designed to cater for large rigid trucks (eg furniture delivery concrete trucks) to enter and exit each of the lots and the laneway in a forward direction.

This may require some indenting of the laneway at the proposed entrances to the lots. The laneway shall be sited on the eastern side of lots 20 and 21 to avoid detrimental headlight conflicts on Hoskintown Road.

17 Conditions 16 and 20 were amended by order of this Court on 29 June 2006 but I will not consider these amendments in relation to the issues in this judgment.

18 There are six grounds of challenge argued by the Applicant.

A. There was no adequate detailed analysis as required by cl 22(3) of the YLEP in existence at the time the Council granted the development consents.

B. The Council failed to have regard to a detailed analysis which considered the location of proposed dwellings in relation to each other and in relation to the irrigation field areas in breach of cl 22(3) of the YLEP.

C. The Council failed to have regard to a relevant factor being cl 22(3) of the YLEP.

D. The Council’s decision to approve the development consents was unreasonable in the Wednesbury sense.

E. The Council failed to have regard to whether each allotment had a practical building precinct; cl 16(2)(h) YLEP.

F. The Council failed to have regard to cl 10.1(2)(iii) of the Village DCP when it approved the development consents.

G. The development applications were for designated development and no mandatory environmental impact statement was provided as part of the development applications.

Relevant legislation

19 Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) requires that a relevant environmental planning instrument, here the YLEP, must be considered in the assessment of a development application by a Council when determining whether development consent ought be granted.

20 In the YLEP clause 10(5), the objectives of the 2(v) Village zone are identified as:

(a) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community,

(b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land,

(c) to control village development so as to achieve the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets.

21 Clause 21 of the YLEP states:

Consent must not be granted to a subdivision of land within Zone No 2 (v) unless the consent authority is satisfied:

(a) that the subdivision is consistent with the character of the area in which it is proposed having regard to existing density, landscape and nearby development, and

(b) that the subdivision does not take in unsuitable areas such as floodplain land, and

(c) that the development achieves the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets, and

(d) that, where connection of a proposed allotment to a sewer is not possible, the allotment will be suitable for on-site effluent disposal without adverse effect on ground or surface water quality.

22 There is no challenge to the Council’s consideration of the development consents under cl 21 of the YLEP.

23 The challenge relates in part to cl 22 of the YLEP. Clauses 22(1) and (3) of the YLEP are the relevant provisions governing allotment size requirements for subdivision in the Village Zone:

(1) Consent may be granted to the subdivision of land within Zone No 2(v) so as to create an allotment that the consent authority is satisfied is intended to be used for the purpose of a dwelling only if the allotment has an area of 450 square metres or more in the sewered areas of Zone No 2(v) and 2,000 square metres or more in the unsewered areas of Zone No 2(v).

(2) …

(3) Despite subclause (1), consent may be granted to a subdivision of land within Zone No 2(v) to create allotments of less than 2,000 square metres, but not less than 1,000 square metres, in the unsewered areas of Zone No 2(v), but only if the consent authority has had regard to a detailed analysis, including consideration of:

(a) slope, and
(b) ground cover, and
(c) soil permeability, and
(d) transpiration factors, and
(e) proximity of proposed dwellings to flow lines, and
(f) the location of proposed dwellings in relation to proposed waste disposal systems and to each other.

24 Clause 27(1)(b) of the YLEP provides:

The land on which it is proposed to erect a dwelling house within Zone No 2(v) must:

…

(b) be a lot in a subdivision consented to in accordance with clauses 21 and 22 . . .

25 Yarrowlumla Council Development Control Plan (2005) – 2(v) Village Zone (the Village DCP) is also applicable. Relevant clauses of the Village DCP include:

This DCP aims to:

The objectives of this Development Control Plan are:
...

e) in relation to subdivision:

· to establish guidelines for the subdivision of existing allotments within the villages; and

· to provide for a range of allotment sizes;

...

The setback distance is the minimum distance between a building wall and the block boundary.

For single dwellings and dual occupancies the minimum setbacks shall be as follows:

front boundary -7 m
side boundary - 0.9 m
rear boundary - 0.9 m
side street boundary - 3 m

Any subdivision in the 2(v) zone must comply with the requirements of clauses 21 and 22 of the YLEP 202.

Development approval must be obtained from Council prior to the subdivision of any land with the exception of some boundary adjustments, which are exempt development.

In designing the subdivision layout the aims and objectives outlined in this development control plan should be adhered to.

The following matters must be addressed when seeking development consents to subdivide land: Attention to the following requirements in the submission of the application will ensure that the approval process is carried out expeditiously:
. . .

2. A site plan 1:1000 scaled (three copies) of the land to which the application relates must accompany the application, indicating the following:

iii. proposed building envelope for the new lots complying with setback requirements;

Other matters dealt with in the Village DCP include overshadowing (cl 9.6), privacy (cl 9.7), aural privacy (cl 9.8), streetscape (cl 9.9) and energy efficiency (cl 9.10).

Evidence

26 Mr Hynes, town planner, swore an affidavit dated 22 March 2006, relied on by the Second Respondent. He sets out the documentary evidence available to the Council. He also considers the Council’s consideration of three issues:

In my experience, it is standard practice in local government in New South Wales when assessing development applications for subdivision such as that proposed by the applicant, to have regard to the fact that:-

(a) the development applications comprised subdivision applications and that future development applications were required to be lodged with and assessed by Council before the location of any dwellings on the land could be finally determined; and

(b) the location of building precincts was a matter that could be readily ascertained from the subdivision plan itself when the plan was considered in the context of the Martens’ reports and the community management statement forming part of the SEE together with the other documents referred to in paragraph 19 and the matters detailed at paragraph 26 above, the LEP and the DCP.

27 The Applicant relied on the affidavit of Ms Ketelby, urban and environmental planner, sworn 24 April 2006, in reply to Mr Hynes’ evidence.

(a) the site dimensions and setbacks

(b) the location and dimensions of the total field area

(c) limits on encroachment of total field area from buildings, driveways and drainage channels

(d) the 33 per cent FSR limit under the YDCP

(e) the footprint dimensions of the house/garage, other buildings

(f) any applicable restrictions arising from the requirements of the YDCP, including overshadowing, privacy, noise intrusion, streetscape, fencing, among other provisions

(g) the rainwater, drainage channels and firefighting tank footprint dimensions and location

(h) the distance to the nearest hydrant, the location and dimensions of driveways (and truck turning areas on Lots 20 – 22) and whether a fire truck can get to within 10m of the required 5,500L firefighting tank

(i) any required lot landscaping.

She considered only categories (a), (d) and (f) were met. In her opinion the final gradient of the land and the location and footprint dimensions of the house, garage and any other buildings, the driveway and any drainage channels on each lot had to be known in order for the practical building precinct on each lot to be known. A further complication is Condition 20 which aims to prevent structures being built which would cause soil compaction of the effluent re-use fields. Further the boundary of several lots was unknown at the time development consent was granted because of the uncertainty about the access to Lots 19, 20 and 21 in light of Condition 52.

28 Dr Martens swore two affidavits and also gave oral evidence. He is an environmental engineer specialising in on-site sewage management systems. His company produced the Water Cycle Management Study which was attached to the SEE for all four DAs. In his affidavit sworn 9 June 2006 he sets out his involvement in addressing water cycle management issues, including sewage management and reclaimed water re-use, for the proposed subdivision of the land at 74-76 Trucking Yard Lane, Bungendore. His aim was to design a system which would provide an adequate supply of water and conform with water sensitive urban design principles. All sewage would be treated on site with appropriate standards and guidelines including the Council’s planning controls. Dr Martens attended two meetings on 29 November 2006 where he presented information about the proposed water cycle and waste disposal system to the councillors and then the public. He attests in some detail to the information he presented at the meetings and attaches copies of documents which he drew and referred to (par 14-20) at the two meetings. These documents include hand drawn sketches of aspects of the proposed scheme such as the irrigation fields.

29 He sets out his approach to the determination of a practical building precinct at par 28-29. His evidence is that the 0.3m – 0.6m setbacks (Condition 23.12) are conservative and can be between 0m and 1m (par 30-31). He agreed in cross-examination that whether the setbacks should be reduced depended on whether the water quality was high. That depended in turn on the effective operation of the system including proper maintenance and monitoring. The 175m2 irrigation fields can be located in more than one field and can be “free form” in shape.

30 In arriving at a determination that the total field area on each lot is not less than 175m2, Dr Martens took into account numerous matters he specifies at par 33(a)-(k) of his first affidavit. He states that it was in his own commercial self-interest to ensure that his advice would result in each lot having a practical building precinct so that it was suitable for sale as a residential lot.

31 In response to Ms Ketelby’s view (at par 26) that in granting development consent the Council needed to be able to locate proposed dwellings in relation to proposed field irrigation areas, Dr Martens’ view was:

… I do not agree that one would need to have locations of proposed dwellings in relation to proposed field areas marked on a plan with flow lines. A consideration of these matters can relevantly be dealt with by a description of words and in fact was described in such a manner with relevant plans. Although there may be no single plan in the Martens’ reports which identifies location of actual dwellings with regard to “flow lines”, I had prepared plans which satisfied me in relation to these issues being the temporary CAD diagrams that I prepared prior to the Martens’ reports being drafted. I also described the effect of these plans at the meetings held in Bungendore and by illustrating that description when I prepared the sketches being exhibits “DMM1” and “DMM2” by drawing irrigation fields that adjoined each other.

32 In his affidavit dated 22 August 2006 Dr Martens attested to further information he gave orally at the Council and public meetings at Bungendore on 29 November 2004. He states that he said the location of effluent disposal fields on each lot can only be determined when the house for that lot is located and designed. The fields will be constructed after the house is built. Further he stated that the soil would not be destroyed if a truck was driven over it. He also undertook a quick (three minute) “back of the envelope” assessment of whether a typical lot was capable of having a typical sized dwelling house and an irrigation field of 175m2 and concluded that they did. He states that identifying whether each lot was capable of having located on it a typical dwelling house and an irrigation field was a simple procedure, as outlined at par 28 of his earlier affidavit. He agreed in cross-examination that the Martens report does not provide any information of where a dwelling would go on the individual subdivided lots.

33 A fundamental disagreement between the experts is whether the water re-use irrigation fields on each lot will be built before or after a dwelling is constructed. Dr Martens considers the usual process is that the micro trenches will be built after a dwelling is constructed and consequently will not have any effect on the construction of a dwelling on a lot (see par 45). The usual approach is that approval for the construction of re-use irrigation fields on each lot is given after development consent has been obtained for the erection of a house on the lot. Application is made under s 68 of the Local Government Act 1993 (the LG Act 1993) usually in conjunction with an application for the issue of a construction certificate for the erection of the dwelling. Construction of the irrigation fields after a dwelling is built means these can be located where the home owner wants them. There is also no difficulty with structures impacting on the irrigation fields leading to soil compaction. Ms Ketelby’s understanding (par 37 of her affidavit of 24 April 2006) is that the development consent conditions require that the irrigation fields be built first before a dwelling is constructed.

34 Ms Ketelby stated in oral evidence that she was unaware when she swore her affidavit dated 24 April 2006 that the irrigation field of 175m2 could be located in one or more separate fields and be free form in shape. It was also suggested to her in cross-examination that there were eleven pieces of relevant information known to the Council which enabled it to determine the practical building precinct which she did not agree with. It also became clear in cross-examination that she agreed there was no need for a separate fire fighting tank (34(g)) and that fire hydrants would be on the footpath and there would be ready access to these (34(h)).

35 An affidavit dated 26 June 2006 of Mr Coady, town planner and traffic consultant, attests that the proposed 6 m laneway (Condition 52) can cater for long medium and long large trucks as identified by the relevant Australian standards, including the types of trucks that are likely to require access to Lots 20, 21 and 22.

36 A Director of the Second Respondent, Mr Gremmo, swore two affidavits dated 28 July 2006 and 21 August 2006. These are relevant to the exercise of discretion by the Court. A further affidavit of Mr Gremmo, sworn 22 March 2006, was read but I do not need to refer to this further in this judgment.

37 An additional affidavit relied on by the Applicant was sworn by Catherine Moore, councillor, dated 9 June 2006, in which she stated that at the meetings on 29 November 2004 addressed by Dr Martens she did not recall any indication being given of where the proposed houses or the irrigation fields would go in the subdivision.

Applicant’s grounds of challenge

A. No detailed analysis under cl 22(3) YLEP - jurisdictional fact

38 The size of the lots created under the development consents was less than 2,000m2 in the unsewered areas of Zone No 2(v) Village. Accordingly cl 22(3) had to be complied with by the Council when it granted the development consents. The Applicant submitted there was no adequate detailed analysis as required by cl 22(3) of the YLEP in existence at the time the Council granted the development consents. The Applicant’s counsel argued in oral submissions that the Court should first determine whether there was a “detailed analysis” before deciding the jurisdictional fact or precondition arguments.

1. Was there a “detailed analysis” which considered the matters listed in cl 22(3)?

39 The Applicant argued that the threshold issue to determine was whether a “detailed analysis” had been provided to the Council as required by cl 22(3). The Applicant argued that it was plain from the words of the YLEP that the location of proposed dwellings must be known and form part of that detailed analysis.

40 The Council required by Condition 20 that the information on the location of proposed dwellings be provided after consent had been granted but before the linen plans were released. The reason given for this condition was “to ensure the sites for future dwelling houses are determined and assessed prior to registration …” (reasons for Condition 20). This condition demonstrates that one of the key listed elements, cl 22(3)(f), was not part of any analysis to which Council had regard, because it explicitly defers the consideration of the location of proposed dwellings in relation to each other and in relation to proposed waste disposal systems to a future time, after consent for the subdivision had been granted.

41 In order to constitute a detailed analysis which considers the location of proposed dwellings in relation to the irrigation fields and to each other, there must be an indication of where the proposed dwellings are to be built on each block and where the proposed irrigation fields for each lot are to be built. No such analysis exists. Despite the assertions to the contrary by the Second Respondent at par 31 of its defence, even taking the definition of “detailed analysis” at its widest to include any information before the Council when it made its decision, there was no information on the locations of dwellings and irrigation fields across the subdivision. The Second Respondent purported in its SEE not to be under any obligation to specify the location of proposed dwellings or irrigation fields at all. The SEE which accompanied each DA stated that:

… the building envelopes are not shown as the development application does not include the erection of dwellings on the subdivided lots

42 As to submissions by Dr Martens at the public meeting on 29 November 2006, the evidence of Councillor Moore is that the specific location of dwellings on proposed lots was not presented. The Council planner’s evidence in his report of 21 December 2004 was that the applicant for consent had provided no information about the location of dwellings. The Council adopted his recommendation that a condition of consent be imposed in an attempt to remedy this deficiency so that consideration could be given after consent had been given, but before the linen plan was registered.

43 Conditions 16 and 20 of the development consents demonstrate that the Council deferred consideration of the location of proposed dwellings. Condition 20 required a s 88B instrument be prepared restricting the erection of buildings to within the precincts determined in accordance with Condition 16, with the precincts to be surveyed and pegged on the ground prior to release of the linen plan. Further the location of the effluent re-use fields was to be marked on the subdivision plans.

44 Further, the planners’ report to Council dated 21 December 2004 states in the section dealing with cl 16 of the YLEP that:

…the applicant has not provided any information on the building precincts, however this can be addressed as a condition of approval.

45 Accordingly, there was no detailed analysis which considered the matter identified in cl 22(3)(f).

2. Identifying a jurisdictional fact

46 No material before the Council included consideration of the location of proposed dwellings in relation to each other and in relation to waste water disposal systems: see cl 22(3)(f). This was a failure to satisfy a jurisdictional prerequisite to the exercise of power by the Council. In the absence of such a study, consent could not be granted because the Council was unable to inform itself of a relevant jurisdictional fact.

47 The issue of whether such a requirement is a jurisdictional fact depends on the proper construction of the instrument in which it is found, having regard to the context of the instrument in which it is found and the purpose or object underlying it, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (Timbarra) at [37], Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 (Woolworths v Pallas Newco) at 30. If the factual reference is preliminary or ancillary to the exercise of power, the conclusion is likely to be that the formulation is a jurisdictional fact (Timbarra at [44] per Spigelman J, Woolworths v Pallas Newco at [46] – [49] per Spigelman CJ and at [141] – [142] per Handley JA, Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 at [6] – [11] per Handley JA)).

48 Another indicator is whether the formulation contains words involving the mental state of the decision maker, such as satisfaction, belief, opinion, which are words which suggest that the formulation is not one of jurisdictional fact (Timbarra at [42]). Another indicator is whether an exercise of contestable value judgment is required on a matter of potentially significant disputation (Timbarra at [88], Woolworths v Pallas Newco at [62]). This requires consideration of the extent to which there are issues of fact and degree in determining the existence of the jurisdictional fact or requirement (Woolworths v Pallas Newco at [56]). However, even if such an exercise of broad judgment is required, this does not necessarily mean that the requirement is not jurisdictional (cf Timbarra, see also Woolworths v Pallas Newco at [60]). A further indicator that a factual reference is jurisdictional is if it ensures that detailed information is available to the primary decision maker (Timbarra at [76]).

49 Applying the principles to this case, as the land was within an unsewered area of the Village zone and created lots less than 2,000m2, cl 22(3) required that regard be had to a detailed analysis which included consideration of six matters of particular relevance to the disposal of waste. Unless the Council had before it an adequate detailed analysis (in the sense of complying with the requirements of cl 22(3) of the YLEP), it had no power to grant consent and was acting ultra vires.

(i) Preliminary or ancillary factual reference – Consent for subdivision of land in the unsewered area of the village zone may be granted but only if the Council has regard to the required analysis. The language cannot relevantly be distinguished from that considered in Corporation of the City of Enfield v Development Assessment Commission And Anor (2000) 199 CLR 135, of “… must not be granted … unless …” (see Handley JA in Warehouse at [8]), or indeed from the terms of the provisions considered in Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365 (Stein JA, Mason P and Handley JA concurring) ( Currey ), Franklins Ltd v Penrith City Council& Anor [1999] NSWCA 134 (Stein JA, Powell and Giles JJA concurring) ( Franklins ) and Manly Council v Hortis (2001) 113 LGERA 321 (Powell, Giles Fitzgerald JJA) ( Hortis ).

(ii) Absence of words suggesting a necessary mental state of the decision maker –

(i) cl 17 contains no mental element of Council

(ii) cl 18(1) states that “Consent must not be granted … unless the authority is satisfied …” a jurisdictional requirement (see Currey, Franklins and Hortis)

(iii) cl 18(2) contains both types of requirement and clearly distinguishes between them: a clearly factual requirement (cl 18(2)(a)) and a matter for the opinion of the consent authority (cl 18(2)(b))

(iv) cl 18(3) includes the jurisdictional language discussed in Currey, Franklins and Hortis.

(iii) A value judgment is not required – There is arguably an element of judgment to be made as to whether an analysis which has been obtained or provided is “detailed”. However, subclauses (a) to (f) in cl 22(3) of the YLEP provide objective particulars of what that detail must contain. The checklist of various matters which the detailed analysis must address contains no scope for the application of a value judgment.

(iv) Provision of detailed information to the decision maker – The requirement that detailed relevant information, in the form of the requisite detailed analysis, be provided to a decision maker is a clear indicator of that requirement being a jurisdictional fact. Clause 22(3) was intended to ensure that before any weighing process took place, the detailed information required to enable the Council to undertake that process was before the Council.

(v) Other matters – In this case, cl 22(3) provides that land in the unsewered areas of the zone must not be made available for subdivision into lots smaller than 1,000m2 unless information on the key listed factors is available. The requirement to have detailed technical information to hand and to have regard to it before any weighing of the merits of the application took place also furthered the objects of the YLEP.

B. Failure to have regard to detailed analysis of cl 22(3) of the YLEP – condition precedent

50 In addition, the Applicant submitted the Council failed to have regard to a detailed analysis which considered the location of proposed dwellings in relation to each other and in relation to the irrigation field areas in breach of cl 22(3) of the YLEP. This was a failure to satisfy a jurisdictional prerequisite to the exercise of power by the Council. In the absence of regard being had to a detailed study which fitted the description in cl 22(3), consideration could not turn to a weighing of the merits of the application and consent could not be granted.

51 Currey, Franklins and Hortis were relied on to support this submission.

Second Respondent’s submissions

52 The Second Respondent submitted in complete answer to grounds A and B that as the Council had regard to a “detailed analysis” as referred to in cl 22(3) the issue of whether this was a jurisdictional fact (ground A) or a precondition to the exercise of power (ground B) did not arise. The relevant analysis was supplied by Dr Martens as identified in his evidence and demonstrated that the location of the building envelopes was satisfactory in relation to the location of the waste disposal systems and to each other.

53 The Second Respondent submitted that the Council was not required to consider the precise location of a proposed dwelling on each lot in order to have regard to a detailed analysis as required by cl 22(3)(f) of the YLEP. Even if the Court so held, that requirement was satisfied in any event on the evidence available. Further, the location of the proposed dwellings on the land did not need to be marked on a plan but could have been and relevantly was identified for the benefit of Council with a description of words by Dr Martens, who made reference to plans when doing so. In addition, the drawings prepared by Dr Martens and the words he used when addressing the meetings at Bungendore convened by Council on 29 November 2004, when considered in conjunction with the Martens report, assisted the Council in undertaking the analysis required by cl 22(3)(f) of the YLEP.

54 As there is no definition in the YLEP of “waste disposal system” it is not clear that in order to satisfy cl 22 there needs to be consideration of “irrigation fields”. The ordinary meaning of that term in the context of subdivision of land relates to sewage produced by humans. The sewage treatment plant including all component tanks is to be constructed in-ground as identified on the Preliminary Component Specifications plan in the Martens Report and the connections to every lot on the subdivision are shown.

55 A consideration of the terms of Condition 20 of the conditions of consent for DA 2004/DEV-001118 and DA 2004/DEV-0119 reveals that Council undertook the analysis required by cl 22(3)(f) of the YLEP.

56 Further, the Council’s compliance with cl 21 of the YLEP which is mandatory is not challenged by the Applicant. That contains four mandatory matters including cl 21(d) relating to suitability of on-site effluent disposal. It must be assumed that the Council complied with that clause of the YLEP so that is was satisfied that the proposed allotments were suitable for on-site effluent disposal without adverse ground or surface water quality effects.

57 Originally the Applicant’s argument was that in order to comply with cl 22(3) the Council must have had a site plan before it. The Applicant conceded in argument that it is possible to have a detailed analysis which includes a description in words. A plan is not the only way the requirements of the clause can be met. (I note that the Applicant argued the evidence did not disclose that such a description was provided given that this was not a uniform linear subdivision and that the lot shapes and boundaries varied.)

A/B. whether detailed analysis a jurisdictional fact or precondition to exercise of power

58 The requirement to have regard to a detailed analysis is not a jurisdictional fact or precondition to the exercise of power by the Council. Rather cl 22(3) is a matter that the Council must consider as part of its merit assessment of a particular application. There is no definition of “detailed analysis” in the YLEP. The Council determines what constitutes a detailed analysis.

Finding on A and B

A. No detailed analysis of cl 22(3) ofYLEP/B. Failure to have regard to detailed analysis

1. Jurisdictional fact/precondition to exercise power

59 I consider I should first determine whether cl 22(3) is a jurisdictional fact and/or a precondition to the exercise of power. The Applicant’s submissions referred to both as a failure to satisfy a jurisdictional prerequisite to the exercise of power by the Council.

60 The Applicant’s counsel stated the two grounds A and B were very similar and there was some overlap in the presentation of the two grounds, particularly in the application of Franklins, Currey and Hortis. I do not consider the grounds are interchangeable. I agree with the distinction drawn in the Second Respondent’s submissions that if a fact is in issue that is an essential preliminary step to the decision making process that is a jurisdictional fact. If a precondition to the carrying out of the power to grant consent is in issue then the enquiry is that undertaken in Currey, Hortis and Franklins. The Second Respondent considered the cl 22(3) issue raised by the Applicant’s two grounds A and B was more appropriately characterised as falling within the latter category, which I agree with. I will therefore determine this issue in relation to ground B in the Applicant’s submissions rather than ground A as the analysis relied on in relation to jurisdictional fact is not apposite given the wording of cl 22(3) and the provisions of the YLEP.

61 In relation to whether cl 22(3) is a “condition precedent” which must be met by the Council before it can undertake a merits review as required by s 79C of the EP&A Act, I agree with the Applicant’s submissions based on the Court of Appeal decisions in Currey, Franklins, Hortis that it is.

62 In Currey the Court of Appeal considered cl 119 of the Sutherland Local Environmental Plan which prohibited the council from consenting to development on land within a foreshore building line unless it was satisfied in relation to certain matters. Clause 119 was referred to in a council officer’s report. Stein JA (Mason P and Handley JA concurring) considered the clause operated before any merit consideration, applying Clifford v Wyong Shire Council (1996) 89 LGERA 240. Reference to cl 19 in the planning officer’s report to the Council was insufficient to discharge the Council’s obligation to consider the clause (at 375).

63 In Franklins the Court of Appeal had before it cl 32(2) of the Penrith Local Environmental Plan (1994) which provided:

Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land. [Emphasis added]

64 At [23] Stein JA (Powell and Giles JJA concurring) considered that cl 32(2) had the effect that the development was prohibited unless the Council formed the opinion required by that clause. At [28] his Honour stated:

… What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an 'essential condition' or preliminary to the exercise of the power,

(1995) 184 CLR 163 at 179 and

[1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. …

65 In Hortis, the Manly Local Environment Plan (1998) provided in cl 117 that:

The Council shall not grant consent to the carrying out development unless it is satisfied that the development will not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area"

66 At [28] the Court of Appeal (Powell, Giles and Fitzgerald JJA) held that this clause was “relevantly similar” to the preconditions in Currey and Franklins. The question was whether the Council was "aware that any detrimental effect on the development of the Foreshore Scenic Protection Area was not merely a factor for it to consider when deciding whether or not grant the applications but an absolute bar to a decision to issue the approval”, see [30]. Currey and Franklins were applied in holding that the absence of express reference to the clause in the information available to the Council and the extent of that information were likely to cause the Council to overlook the nature of clause 117.

67 Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 was also referred to in argument. In that case the Court of Appeal was considering an appeal based on cl 9(3) of the Shoalhaven Local Environment Plan 1985 which provided:

Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on or of land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out

68 Ipp AJA (Spigelman CJ and Sheller JA agreeing) stated at [7]:

Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the 3(g) zone. A failure to form such an opinion would result in the grant being invalid:

[1999] NSWCA 134.

The circumstances of this case are similar to those in Coffs Harbour City Council v Arrawarra BeachPty Limited [2006] NSWLEC 365 in which Talbot J applied Franklins at [42] -[44].

69 The wording of cl 22(3) supports the conclusion that it is a condition precedent to the exercise of the power to grant consent by the Council as it states that consent may only be granted if the consent authority has had regard to a “detailed analysis”. Clause 22(3) sets out in (a) to (f) those matters to which regard must be had in the “detailed analysis”, providing specificity to what should be in a detailed analysis. Clause 27 states that a dwelling house must be on a lot in a subdivision consented to in accordance with cl 21 and 22. It is a matter which the Council must have regard to before it can grant consent to a subdivision of unsewered land in the Village Zone which is less than 2,000m2 and more than 1,000m2. It is a precondition to the exercise of the Council’s power to grant development consent in this circumstance and the reasoning in the cases set out above supports such a finding.

70 The Second Respondent argued that a value judgment is required to be undertaken as to what precisely was required to be analysed by the Council under cl 22 of the YLEP. The wording of cl 22(3) refers to having “regard to a detailed analysis which includes consideration of ...”. There is no definition of detailed analysis in the YLEP. Clause 22(3) is not exhaustive of what the consent authority is required to undertake a detailed analysis of as it refers to “including (a) to (f)”. The Council therefore has to exercise its own judgment, a subjective consideration (see Skouteris v Auburn City CouncilAnd Anor [2005] NSWLEC 207). Further, cl 22(3) was taken into account as part of the Council’s merit consideration. I do not agree with that construction of cl 22(3) within the context of the YLEP given cl 21, 22 and 27 as stated in the previous paragraph.

2. Did the Council have regard to a “detailed analysis” as required by cl 22(3) so that the precondition is satisfied

71 The next issue to determine is whether the Council had regard to a “detailed analysis” as required by cl 22(3). There is agreement by the parties about the material available to the Council before making its decision to approve the development consents but disagreement whether that material satisfied the requirement for a detailed analysis in cl 22(3) of the YLEP. The Second Respondent argued that the information available to be taken into account by the Council is an answer to the Applicant’s challenge in relation to this ground (and the challenges based on cl 16 of the YLEP (ground E) and cl 10 of the DCP (ground F) to which I will come) because it constituted “a detailed analysis” in any event.

72 In the absence of a definition of a “detailed analysis” I agree with the Second Respondent that a “detailed analysis” is not necessarily a noun but can encompass a subjective action. It could be presented to or undertaken by a council in more than one way. It is not necessary to have a single document purporting to be a “detailed analysis”. It could be a process of detailed analysis which could include all the relevant factors identified at (a) to (f).

73 An alternative reading suggested (in the interests of thoroughness) by the Applicant’s counsel, is that cl 22(3) does not require the detailed analysis to consider each of the factors listed in (a) to (f), but rather requires the Council to consider each of these factors, leaving at large the contents of the detailed analysis. I agree this is not the natural reading of the clause.

74 I note that the Second Respondent argued that because “waste disposal system’ is undefined in the YLEP there is no requirement to consider the irrigation fields on individual lots under cl 22(3), just the sewage treatment plant and its connection to individual lots. The preferable view is that “waste disposal system” should be considered as including the irrigation fields as these are part of the waste disposal system. Condition 23 refers to the Effluent Management System being constructed in accordance with the Water Cycle Management Study prepared by Martens and Associates and refers explicitly to the irrigation fields to be constructed at 23.2, 23.9-12. The irrigation fields are part of the waste disposal system for the purposes of cl 22(3).

Evidence before the Council

75 There is no specific oral or written evidence from any councillor about how cl 22(3) was considered in the Council’s decision making process. The Court has in evidence before it the documentary and other information relied on by the parties in support of their arguments. As already noted the parties agree what information was before the Council but disagree whether this satisfied cl 22(3). The affidavit of Mr Hynes identifies relevant material and the Court was provided with a large bundle of documents containing the material referred to by Mr Hynes which was before the Council.

76 The evidence of Dr Martens concerning the meetings on 29 November 2004 as detailed in both his affidavits shows that a lot of detailed information about the proposed waste management system was provided to the Council. That material included information about what would generally occur on individual lots in terms of the irrigation fields but did not include an analysis of every lot in the proposed subdivisions. The Second Respondent’s written submissions referred to Annexures B and C to Dr Martens’ first affidavit, being copies of hand drawings prepared by Dr Martens (also referred to above in par 31, summary of Dr Martens’ evidence). These identify the location of proposed dwellings on some lots, drawn roughly by hand, as indicated by the notation “houses” and the proposed waste disposal systems comprising the sewage treatment plant marked “STP”, together with other components of that system including tanks, pipelines, effluent disposal fields and a control shed. The Martens report and Dr Martens’ presentations on 29 November 2004 provided considerable detail and explanation of the system proposed by him as it was intended to operate generally on individual lots. There was not a description in words or on a plan of every lot of the proposed irrigation fields and dwelling house locations. He admitted in cross-examination that no plan or description of dwelling house locations was provided.

77 The Council planner’s report dated 21 December 2004 sets out cl 22 and states that:

The proposed allotment sizes are less than the 2000m2 minimum, however the applicant has submitted a comprehensive analysis in accordance with [cl 22] item (3). The analysis indicates that the property can be subdivided as indicated, with no significant impacts on the environment. The average allotment size in this application is approximately 1127m2 and therefore comply

with the requirements of this clause.

78 The part of the planner’s report (6.1) relied on by the Applicant which refers to no information being provided is concerned with building precincts as referred to in cl 16(2)(h) of the YLEP, a separate ground raised by the Applicant. The information required by the YLEP for both grounds does overlap. The material before the Council needs to be assessed in light of the development consent conditions imposed before a finding can be made.

Meaning of development consent conditions

79 Part of the parties’ arguments concerned the effect of the Council’s consent conditions. Ultimately that is a matter the Court must consider and make a finding about. It was accepted by the Second Respondent in final submissions that Condition 23 requires that the irrigation fields must be built before the linen plan for the subdivision is registered and, I surmise, before any house is built. Condition 23 does have that effect. The process that condition requires is different to the process of building the irrigation fields as envisaged by Dr Martens, whose evidence was that usually dwellings would be constructed before the irrigation fields were built so that the fields could be located in places suited to the individual lot owner. That process is not reflected in Condition 23 and Conditions 16 and 20.

80 Condition 20 requires the Applicant to prepare a s 88B instrument under the Conveyancing Act 1919 restricting the erection of buildings to within building restriction precincts delineated on the subdivision plan. Further, the building restriction precincts are to be surveyed and pegged out on the ground prior to the release of the linen plan. The condition also requires the Applicant to include the location of the effluent re-use fields on the final subdivision plans, inter alia. Condition 16 states that final allotment boundaries and the location of building restriction precincts are to be determined at the time of survey to the satisfaction of Council staff.

81 The Applicant submitted that Conditions 16 and 20 mean that the final lot boundaries and building restrictions are to be determined after development consents were granted by the Council. These matters should have been determined before the development consents were granted. The Second Respondent relied on the amended form of Conditions 16 and 20 made by the Court on 29 June 2006 but these fall outside the issues in this part of the proceedings as the original development consents are challenged.

82 According to the Second Respondent construction of the reclaimed water irrigation field on a lot would occur after approval is obtained from Council under s 68 of the LG Act 1993 for that work, and following the erection of a dwelling house on a lot. The Applicant disputes this is the effect of the development consents and I agree with the Applicant’s interpretation of the effect of Conditions 16, 20 and 23.

83 The Applicant also raised through Ms Ketelby’s evidence (see par 27) the effect of Condition 52 which requires different access arrangements to Lots 20, 21, and 22 across Lot 19 to those proposed by the development applications which provided for these lots to have main road access.

Expert evidence

84 Both parties have sought to rely on expert opinion evidence in these judicial review proceedings. The Applicant’s town planning evidence of Ms Ketelby was in reply to that of Mr Hynes, and not relied on as evidence in chief. The Applicant argued that the town planning evidence of Mr Hynes is irrelevant and consequently so is most of Ms Ketelby’s evidence. The only reason for Ms Ketelby’s evidence was to ensure a reply to Mr Hynes.

85 Dr Martens’ expert evidence has potentially two functions if taken into account. Firstly, as the expert hydrological engineer who designed on behalf of the Second Respondent the waste management systems to be used in the subdivisions in issue, he prepared the Martens report included in the SEE and provided further written and oral information to the Council which informed its decision to approve the development applications under challenge. His evidence in that regard is essentially factual and is not disputed by the Applicant. I take it into account on that basis.

86 He also expresses his opinion as an expert about the adequacy of the material provided to the Council and consequently that the Council did have sufficient material before it to make a decision which complied with cl 22(3) of the YLEP. He also expresses a view about the building process for the waste management system given effect by the development consents. Evidence of this nature is less relevant in judicial review proceedings.

87 Expert evidence can have only a limited role to play in judicial review proceedings which are concerned with the decision making process of the Council, not with the merits of particular decisions. I considered relevant authorities on this issue particularly Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13 July 1993, unreported), King v Great Lakes Council (1986) 58 LGRA 366 and ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190, in Woolworths Limited v WyongShire Council & Ors [2005] NSWLEC 400 at [166] – [169]. The six bases on which expert evidence may be able to be taken into account in judicial review proceedings as identified in Caldera by Talbot J are:

1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed.

2. To show what a council acting reasonably ought to have done.

3. To achieve an understanding of the environmental consequences of the action or inaction of the council.

4. To explain factors, principles or materials relevant to the determination.

5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witness to explain what was before the council.

6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. (

65 ALR 549 at 563

No. 40033 of 1985 Stein J 3 October 1985 Unreported and

88 Only category 6 could apply in relation to this ground. Mr Hynes’, Dr Martens’ and Ms Ketelby’s evidence is potentially relevant as to whether there was information which could or should have been obtained by the Council before making its decision to grant the development consents, namely more information to satisfy cl 22(3)(f). Weighing up the expert evidence when this is conflicting renders it of limited utility. The principal issue for the Court to consider is, given the requirement of cl 22(3), what was before the Council. An expert’s opinion that the Council had or did not have sufficient information before it to properly consider a particular matter is less relevant. I therefore find the evidence of Mr Hynes and Dr Martens and also Ms Ketelby of limited assistance.

Conclusion

89 The effect of the development consent conditions in requiring the irrigation fields to be constructed before the linen plan is significant in determining whether a “detailed analysis” was available to the Council. This must be considered in light of what material was before the Council. Dr Martens‘ belief, as told to the public meeting on 29 November 2004, that the irrigation fields would be built after dwelling houses were constructed does confirm the view of the Applicant that the location of dwelling houses in relation to the irrigation fields was not a matter he, or the Second Respondent, considered needed to be made known at this stage of the development consent process for these subdivisions. This is reflected in Dr Martens’ evidence at par 33 of his first affidavit that issues such as soil compaction of irrigation fields did not arise because dwellings would be constructed first.

90 Reviewing all the material available to the Council and taking into account that the development consent conditions require that the irrigation fields be constructed before dwellings are built, suggests that the Council did not have before it a detailed analysis which identified sufficient information whether by description or by a plan to meet cl 22(3)(f) for each lot of this subdivision. While it did have extensive information generally about the operation of the waste management system in relation to lots as identified in the evidence of Dr Martens, plans of the layout and the lot sizes of the subdivision and Mr Newbold’s solar analysis, cl 22(3)(f) requires that there be a detailed analysis within each lot and the relationship between proposed lots in relation to any waste disposal system by the Council before it could proceed to grant development consent.

91 In the context of cl 22 of the YLEP it is not sufficient to impose Conditions 16 and 20 which require the specification of building restriction precincts (Condition 16) and preparation of a s 88B instrument restricting the erection of buildings to the building restriction precinct (Condition 20) given that Condition 23 requires the effluent management system irrigation fields to be constructed before the linen plans are released and therefore before a dwelling house is built. As identified above, that is contrary to the process advised by Dr Martens at the public meeting on 29 November 2004.

92 While not decisive of this issue, further uncertainty about the location of dwelling houses in relation to waste disposal systems arises because of the changed access to three lots across another lot by virtue of Condition 52 which varies the layout of the proposed subdivisions from those proposed by the Applicant. For these reasons I consider cl 22(3)(f) has not been complied with and the Applicant is successful on this ground.

C. Failure to have regard to a relevant factor (a detailed analysis)

Applicant’s submissions

93 The Applicant argued that if the Court finds that cl 22(3) does not contain a jurisdictional requirement or is not an essential precondition to the grant of development consent, the Council failed to have regard either to the requisite detailed analysis or to the location of proposed dwellings in relation to each other and in relation to the irrigation field areas in breach of cl 22(3) of the YLEP. It therefore failed to have regard to a relevant factor, the consequence of which is that the decision to grant development consent is invalid. This ground of challenge does not arise given my finding that cl 22(3) does contain a precondition to the exercise of power to grant consent (Ground B).

D. Unreasonable

94 Alternatively, if the Court determines that it was a matter for the Council to determine whether it had had regard to a sufficient detailed analysis or considered the location of proposed dwellings, then Council’s determination that the detailed analysis was a detailed analysis within the meaning of cl 22(3), or that it had had sufficient regard to the location of dwellings as required by that clause, was unreasonable in the Wednesbury sense. This ground no longer arises given my finding on Ground B.

95 The next two grounds of challenge by the Applicant are firstly in relation to cl 16(2)(h) of the YLEP concerning whether a practical building precinct exists on each lot and, secondly, in relation to cl 10.1 of the DCP concerning the provision of a site plan showing proposed building envelopes. These are related to the central issue raised by the Applicant of whether there was a “detailed analysis” under cl 22(3)(f), namely that no information about the location of proposed dwelling houses for each lot has been provided by the Second Respondent in support of these development applications. Evidence considered for ground B is also generally relevant to the cl 16(2)(h) ground.

E. Failure to have regard to whether each lot had a practical building precinct

96 Clause 16(1) of the YLEP provides:

What must be considered before granting consent to development?

(1) Before consenting to development of land, the consent authority must be satisfied that the carrying out of the development is consistent with the objectives of this plan and the objectives of the zone in which the land is situated.

97 Clause 16(2)(h) of the YLEP provided that:

(2) Before consenting to development of land, the consent authority must also consider:

…

(h) in the case of subdivision, whether each allotment to be created has a practical building precinct

98 The term “practical building precinct” is not defined in the YLEP. The Council planner’s report dated 21 December 2004 stated in relation to cl 16 that “the applicant has not provided any information on the building precincts, however this can be addressed as a condition of approval”.

Interrogatories

99 Further to my judgment Bungendore Residents Group Inc v Palerang Council & Anor [2006] NSWLEC 557 three answers to interrogatories were admitted in the Applicant’s case as follows:

1. In determining the subject Development Applications did Council have regard to information or advice in relation to the following matters:

(c) whether each allotment to be created has a practical building precinct.

Response: Yes

2. If the answer to the above is yes …

(a) is the information or advice contained in item 1 of the Council’s report to the Extraordinary Council Meeting 24 on 21 December 2004?

Response: Yes

(b) Did that report contain all the information or advice that the Council had regard to in determining the application?

Response: Yes

100 The Second Respondent relied on par 3(a) of the Verified Statement in Answer to Interrogatories (attached to the affidavit of Mr Glen dated 28 April 2006). In order to give that answer context it was necessary to also tender answers to interrogatories 1 and 2. These all state:

1. In determining the subject development Applications did Council have regard to any information or advice in relation to the following matters:

(a) Whether the subdivision is consistent with the character of the area in which it is proposed, having regard to the existing density landscape and nearby developments

Response: Yes

2. If the answer to the above is yes …

(a) Is the information or advice contained in item 1 of the Council’s report to the Extraordinary Council Meeting 24 on 21 December 2004?

Response: Some of the information or advice is identified and/or summarised in item 1 of the Council’s report to the Extraordinary Council Meeting 24 on 21 December 2004.

(b) Did that report contain all the information or advice that the Council had in regard to in determining the application?

Response: No

3. If the answer to 2(b) is no or yes as to part of the information or advice as to any of the paragraphs 1(a) to (j), in respect to each paragraph:

125 There is no evidence that the Council or its planners did address directly whether there was a practical building precinct on each lot. The Council planner’s report suggests the planner did not. I have already held at par 79 - 82 that Conditions 16, 20 and 23 have the effect the Applicant contends for as set out in its argument at par 102(i) and (ii) in relation to Conditions 16, 20 and 23. I agree with the Applicant that these conditions left the determination of whether there was a practical building precinct to a later stage, after the development consents were granted. Clause 16(2)(h) requires consideration of this issue before consent for development is issued by the Council.

126 The Second Respondent has relied on the extensive information available to the Council to argue there was clearly sufficient material available to the Council for it to have determined there was a practical building precinct. That material and submissions about it can be presented to the Court in relation to the exercise of discretion by the Court as to the legal effect of the failure to comply with cl 16(2)(h) but it is not an answer to the mandatory requirement to consider cl 16(2)(h) in the YLEP. I consider there is a failure to consider cl 16(2)(h) as identified by Giles JA in Weal at 201. The Applicant has discharged the onus of proof it bears to prove there was a failure. It is successful on this ground.

F. Failure to have regard to cl 10.1(2)(iii) of Village DCP

127 Clause 10.1 of the Village DCP relevantly provided that:

The following matters must be addressed when seeking development consent to subdivide land …

2. A site plan 1:1000 scale (three copies) of the land to which the application relates must accompany the application, including the following:

iii. proposed building envelope for the new lots complying with setback requirements

128 Under s79C(1) of the EP&A Act:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

129 The Council planner’s report dated 21 December 2004 states as follows:

Council DCP requirements (Section 79C(1)(a)(iii))

The DCP for Village Zones is applicable. The DCP requires that the principles of ecological sustainability be adhered to with any subdivision, and requires a minimum lot size of 1000m2 and a minimum frontage of 20m. The proposed development complies with these standards.

Potable water for the proposed lots will be provided by on-site collection. No reliance has been placed on Councils

water supply from the development.

Applicant’s submissions

130 The Applicant submitted that the Council failed to have regard to cl 10.1(2)(iii) of the Village DCP. The Village DCP provided detailed provisions concerning development in the Village Zone to achieve the purpose of the YLEP and ensure proper consideration of the impacts of subdivision. Clause 10.1(2)(iii) of the DCP provided that one of the matters which must be provided in a development application for a subdivision to which the DCP applies was:

2. A site plan 1:1000 scale (3 copies) of the land to which the application relates must accompany the application, indicating the following:

…

(iii) proposed building envelope for the new lots complying with setback requirements.

131 The report of the Council's planner dated 21 December 2004 dealt in section (ii) of the report in a few lines with the whole of “Council DCP Requirements”. This section of the report had no consideration of the requirement contained in cl 10.2(iii) of the DCP and it should be inferred that the Council failed to consider it. No document before the Council set out the relevant provision, a consideration of it and a reason for failing to require compliance with it, save for an oblique mention in the SEE at 31 which stated:

In respect of subclause 2(iii) the building envelopes are not shown as the development application does not include the erection of dwellings on the subdivided allotments.

132 Absolute compliance with a DCP is not essential in order for a development consent to be valid. However it is entitled to significant weight in the decision making process.

133 The Council should be aware of the extent of the departure from the provisions of the DCP and give it genuine and realistic consideration. There should be something in the nature of a need or reason to depart from the provisions of the DCP because its application would produce unsatisfactory results. The absence of any consideration of or reason for the failure in the planner’s report to comply with cl 10 of the DCP is evidence of the Council’s failure to consider this matter.

Second Respondent’s submissions

134 The Second Respondent admitted that a site plan showing proposed building envelopes for the new lots complying with setback requirements was not lodged with the development applications. When considered in the context of other documents and information available to the Council the location of building envelopes complying with setback requirements could be readily ascertained from the plans of subdivision lodged which showed the length, width, total area and shape of each lot.

135 That information included:

(i) Plans of subdivision

(ii) Setback of dwellings according to cl 9.5 of the DCP

(iii) Irrigation field areas for each lot of 175m2 was specified in the Martens report

(iv) Advice that the irrigation fields could be in a free form shape in two or more locations on each lot was provided by Dr Martens at the public meeting orally and in diagrammatic form

(v) Irrigation fields on a lot could have zero setback from buildings, driveways and public boundaries

(vi) Further, Dr Martens advised that irrigation fields could have nil setback from common lot boundaries and 1m setback from buildings, driveways and public boundaries

(vii) The NSW Department of Commerce representative supported Dr Martens approach at the public meeting

(viii) Site inspection by some councillors prior to determining the application

(ix) The Preliminary Component Specifications Plan in Attachment D (Detailed Watercycle Management Infrastructure Plan) of the Martens report provided details about the proposed system

(x) Dr Martens also displayed an aerial photograph with the subdivision layout plan superimposed, showing existing undefined drainage lines and overland flow path for large storm events

(xi) Maximum FSR was one-third of the allotment size as was clear from the DCP

(xii) Mr Newbold’s solar analysis of each lot was also available to the Council and this provided details of the maximum size of permissible dwellings, the range of permissible floor space, indicative footprints for dwellings and the dimensions of indicative footprints for the lots.

136 “Must be addressed” and “attention will ensure process carried out expeditiously” as used in cl 10 does not suggest that a site plan showing the building envelope for every lot is required. All twelve matters identified in cl 10.1 as relevant to include in a site plan are aimed at determining whether there will be sufficient room for the type of building that might be the subject of a future DA. A site plan is but one way of addressing the requirements in the section.

137 Matters of planning principles are addressed in cl 10 itself. Clause 10.1 sets out those matters to be addressed in the application form.

Finding

138 Zhang v Canterbury City Council (2001) 51 NSWLR 589 considered how a DCP should be given regard in the development assessment process by a Council. Spigelman CJ (Meagher JA and Beazley JA concurring) held at [74] – [75]:

A development control plan is not an “environmental planning instrument”. (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority “must refuse” an application that would “result in a contravention of” such an instrument does not apply to a development control plan. Furthermore, the proscription, by s76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a “non-discretionary development standard” which, if complied with, would take away a consent authority’s discretion under s79C(2).

The consent authority has a wide ranging discretion - one of the matters required to be taken into account is ‘the public interest’ - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a “fundamental element” in or a “focal point” of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative.

139 That decision and the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 was applied in and further principles elucidated in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at 271, 272 by McClellan CJ. How these dicta should be applied in this case needs careful consideration.

140 The Village DCP is lengthy at 46 pages with two appendices. The aims and objectives are identified above at par 25. In relation to subdivision, the identified objectives are the establishment of guidelines for the subdivision of existing allotments within the villages and to provide for a range of allotment sizes. Part 5 cl 10 considers subdivision. The first three paragraphs are set out at par 25 and reflect policies the Council wishes to implement. Clause 10.1 is headed “Subdivision Applications”. It identifies a number of matters which, if complied with, will ensure the application is processed expeditiously. Clause 2 refers to the provision of a site plan and identifies twelve items which must accompany the application. One requirement is cl 10.1(2)(iii) “The proposed building envelope for the new lot complying with setback requirements”. The Applicant accepts that the DCP is not a mandatory requirement but has argued that the Council did not have regard to it as it should in light of Zhang.

141 This issue should be determined in the context of the DCP as a whole. No issue is raised by the Applicant that a policy implemented under cl 10 or any other clause of the DCP was ignored by the Council. The context giving rise to the principle confirmed in Zhang, Ligon and Stockland was that consideration of policies in a DCP must be a focal point of decision-making. The subclause relied on in the Applicant’s argument is a procedural one in that it is addressing the form and content of a development application. The Council is assumed to be familiar with the particular provisions of its LEP, see Schroders v Shoalhaven City Council (1999) 110 LGERA 130 at [25], and by implication its DCP.

142 This ground can be answered by considering the terms of the DCP and I do not consider that the matters raised in cl 10.1 can be considered as fundamental to the application of the DCP. Clause 10.1 sets out procedural requirements to enable the efficient processing of development applications. These are not matters which are required to be the focal point of decision-making in order to demonstrate application of the DCP.

143 It is not necessary to review the evidence and arguments identified by the Second Respondent set out above and the Applicant’s contrary submissions. The Applicant is unsuccessful on this ground.

G. Were the development applications for designated development?

144 Under s 78A(8)(a) of the EP&A Act a development application in respect of designated development is required to be accompanied by an Environmental Impact Statement (EIS). Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) specifies categories of development which are designated.

145 The Court of Appeal handed down its decision in Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323 (RAID) on 23 November 2006 and determined the appropriate approach to whether a project was designated development under the EP&A Act, varying a long standing approach in this Court.

146 RAID changed the law in relation to the determination of designated development under Sch 3 of the 2000 Regulation and the EP&A Act. The Applicant sought and was granted leave by me in Bungendore Residents Group Inc v Palerang Council & Anor (No 2) [2007] NSWLEC 67 to add a further ground in the Points of Claim as follows:

That the Development Applications are in respect of designated development, were not accompanied by an Environmental Impact Statement and the development consents are invalid.

39. DA 2004/DEV-0007, DA 2004/DEV-0008, DA 2004/DEV-00118 and DA 2004/DEV-00119 (“the Development Applications”) include a sewerage treatment plant and water reuse system.

Environmental Planning and Assessment Regulation 2000 (“the Regulation”), which relates to “Sewerage systems of works”.

a) Subclause 4 of Item 29 of Part 1 of Schedule 3 to the Regulation states that sewerage systems or works that release or reuse:

· more than 20 persons’ equivalent capacity; or

· 6 kilolitres per day of sewerage, effluent or sludge, that are (at 4(g):

· located within 500m of a residential zone; or

· within 250m of a dwelling not associated with the development;

are designated development.

b) The development applications included a sewage treatment plant capable of reusing 21 160 L/day of waste water per day:

c) The sewerage system proposed for the Development Applications is located within 500m of a residential zone:

a. the land the subject of the Development Applications is zoned 2(v) Village;

b. “residential zone” is defined in Part 4 to Schedule 3 to the Regulation as “land identified in an environmental planning instrument as being predominantly for residential use, including urban, village or living area zones, but excluding rural residential zones”;

41. The development applications the subject of these proceedings are in respect of designated development.

42. The Development Applications were not accompanied by an Environmental Impact Statement as required by s 78A(8)(a) of the Environmental Planning and Assessment Act 1979.

43. By reason of the matters set out in paragraphs 39-42 above, the Development Consents granted pursuant to the Development Applications, contained at Tabs 9-12 of the Bundle (volume 1) are invalid.

147 When RAID was decided category 29(4) of Pt 1 Sch 3 specified:

(4) Sewerage systems or works that release or reuse more than 20 persons equivalent capacity or 6 kilolitres per day of sewage, effluent or sludge and that are located:

(a) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or

(b) in an area of high watertable, highly permeable soils or acid sulphate, sodic or saline soils, or

(c) on land that slopes at more than 6 degrees to the horizontal, or

(d) within a drinking water catchment, or

(e) within a catchment of an estuary where the entrance to the sea is intermittently open, or

(f) on a floodplain, or

(g) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development.

148 On 1 March 2007 the Environmental Planning and Assessment Amendment (Designated Development) Regulation 2007 (the 2007 Amendment Regulation) was gazetted. This amended Sch 3 and category 29.

149 Category 29 of Pt 1 Sch 3 dealing with sewerage systems was replaced by a new description which retained some of the previous category and made new provisions. The previous provision for sewerage works above a certain size being within 500m of a residential zone (category 29(4)(g)) was removed. The amendments took effect from 1 March 2007 and are not retrospective. If they had applied the relevant processing capacity is that in category 29(1)(a), namely 750kl. The development consents would not therefore have been within category 29.

Applicant’s submissions

150 The proposed developments are designated development as these fall within Pt 1 Sch 3 of the 2000 Regulation and are development applications in respect of “designated development”. The four development applications under challenge include a sewerage treatment plant and water reuse system which reuse more than 6 kl per day of effluent. That is clear from the Martens Report. Those works will be within 500m of the residential zone, the 2(v) Village Zone under the YLEP 2002. The works are also within 250m of dwellings not associated with the development. As the development the subject of the four development applications under challenge is designated development an EIS should have accompanied these as required by s 78A(8)(a) of the EP&A Act. As no EIS was provided all four development consents are invalid.

151 RAID at [179] – [185] was relied on. In RAID the long line of authority in this Court that sewage treatment works were not designated development if ancillary to a dominant purpose was overturned.

152 The 1 March 2007 amendments to Sch 3 are not retrospective and do not affect the Applicant’s legal argument on designated development.

Second Respondent’s submissions

153 The Second Respondent did not disagree with the Applicant’s arguments in relation to the operation of Sch 3 at the time that RAID was decided but argued that the March 2007 amendments to category 29(4) of Pt 1 Sch 3 make clear that Parliament never intended that the Second Respondent’s development applications were for designated development. It is accepted that Tobias JA identifies that the first inquiry to make in relation to whether a proposal is designated development is whether a proposed development falls within Sch 3. The second inquiry identified by Tobias JA in RAID of whether a development application is “in respect of” designated development, requires asking whether the development is significant in the context of the overall development proposed. If considered now, the amended category 29(1)(a) of Pt 1 Sch 3 would be the relevant part of category 29 so that the relevant processing capacity is 750kl. Accordingly, the sewerage system or works would not fall within category 29. This strongly suggests, according to the Second Respondent, that the sewerage system proposed is not significant in the context of this development and is not therefore in respect of designated development.

Finding

154 In RAID Tobias JA (Giles JA and McClellan CJ at CL concurring) stated at [149], [179 – 185], [189]:

… It is common ground that the proposed STP falls within the description set out in category 29(4) of Pt 1 of Schedule 3 and is, therefore, designated development. The question is whether that is the end of the inquiry and, if not, what is the nature of any further inquiry. In my opinion the only further inquiry is whether the application is “in respect of” a sewerage system or work within the meaning of s78A(8)(a) of the EPA Act.
…

Rather, once it is determined or conceded that at least part of the development the subject of a development application falls within one of the categories listed within Pt 1 of Schedule 3 to the 2000 Regulation, such as in the present case, then that part is thereby declared to be “designated development”. As I have noted, the only question then is whether the development application in question is “in respect of” that part of the development which is so declared. In my opinion, that question is not resolved by undertaking a further exercise in characterisation dependant upon whether that part of the proposed development is an independent use of the land to which the application relates or whether it is ancillary to some other part of the development proposed which is the dominant or primary purpose of the application.

As I have already indicated, there is no proper basis for construing s78A(8)(a) as applying to an application

only

in respect of designated development. I agree with the primary judge in Maxwell (at 195 [43]) that it would be contrary to the intent of the legislation now in force to hold that an activity which falls within one of the categories listed in Pt 1 of Schedule 3 should necessarily lose that character because it only forms part of a greater development or is not the main purpose of the development in respect of which the application has been made.

It is of little significance to observe that the critical words in s78A(8)(a) are “in respect of” and not “for”. There is authority in other contexts that the prepositional phrase “in respect of” is of great width and certainly wider than the preposition “for”: Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 87 per Fullager J; Genders v Government Insurance Office of NSW (1959) 109 CLR 363 at 387. Further, in State Government Insurance Office v Crittenden (1966) 117 CLR 412 at 416 Taylor J referred to the observation of Fullager J in Unsworth that the expression “in respect of” was wider than the preposition “for” when considered alone (that is, not in the composite phrase “for and in respect of”). His Honour then adopted the comment of Mann CJ in Trustees Executors of Agency Co Ltd v Reilly [1941] VLR 110 at 111 that
”[t]he words ‘in respect of’ are difficult of definition but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject matters to which the words refer.”

See also, National Vulcan Engineering Insurance Group Ltd v Pentax Pty Ltd [2004] NSWCA 218 at [74] and [123].

181 As is always the case when construing a phrase such as “in respect of”, much depends on the context and the discerned purpose of the legislative provision in which it is used. In the present case, the phrase is used in connection with a provision which requires an environmental impact statement to be prepared where development is declared to be designated development. By definition such development is more likely than other forms of development to have significant environmental impacts on sensitive areas such as wetlands and the like.

It would be a curious and unlikely result and, in my opinion, contrary to a purposive construct of the relevant provision of the EPA Act the objective of which is the protection of the environment, if development which is admitted or found (after being appropriately characterised) to be designated development can escape the legal requirements deemed necessary by the legislature to enable the impacts of that development to be properly assessed by the device, unexpressed in that provision, of characterising that development as subsidiary to some other non-designated development which is regarded as the dominant or primary development proposed in a particular development application. In my opinion, clear words would be required in the EPA Act before such a result could be embraced as a matter of statutory construction of s78A(8)(a).

To adopt and adapt the observation of Menzies J in Genders at 387, while in some cases there may be good reason for confining the meaning of the general words “in respect of”, there is no reason for restricting their amplitude in a statutory provision such as s78A(8)(a). When taken in the context of the objects of the EPA Act set forth in ss5(a)(vi) and 5(c) and in conjunction with provisions such as ss79, 80(9) and 98 which single out designated development for particular attention, it becomes clearly enough that the requirement for an environmental impact statement to accompany a development application “in respect of” designated development was intended to secure for the public good the comprehensive protection of the environment from those forms of development which by their nature, have been declared by the legislature to be likely to significantly impact thereon.

As her Honour said in Maxwell (at 195 [43]) and I repeat:

“The whole basis behind designated development is to ensure that activities that will potentially have greater environmental impact are properly considered through a process of environmental impact assessment.”

It is true that there is some inconsistency in the language used in the provisions to which I have referred. Thus s79 applies to a development application “made for consent to carry out designated development”. Sections 80(9) and 98 speak of a development application “for” designated development. However, I do not regard these differences as requiring the phrase “in respect of” in s78A(8)(a) to be read down or to be construed in the more narrow sense in which the preposition “for” has been in some contexts construed. Section 78A(8)(a) is the primary or governing provision from which the other provisions to which I have referred follow. In the present context, it would not be inappropriate to construe it as an equivalent to “involving”. On that construction the application in the present case was one involving designated development.
…

In my opinion there is force in these submissions. They certainly accord with a purposive approach to the construction of s78A(8)(a) which I favour whereby an application is “in respect of” designated development where a not insignificant part of the development can be so categorised.

155 The parties agreed, and general legal principles provide, that the law as determined in RAID is to apply at the time the development applications were determined by the Council. It is also agreed that the proposed sewerage system at the time of the Council’s decision to approve the four DAs falls within category 29(4) of Pt 1 Sch 3. The Second Respondent argued, however, that the application of the second “test” in RAID, whether a DA was “in respect of” designated development, is whether the works are a significant part of the development. This can be informed by the March 2007 amendments to Sch 3. These make clear that the proposed sewerage system is not significant given that its processing capacity of 21kl is much less than 750kl which now applies as a result of the 2007 Amendment Regulation which removed category 29(4)(g).

156 The sewerage works the subject of these proceedings fall within the description in category 29 of Pt 1 Sch 3 as it was at the time the development applications were considered by the Council. The requirement that the development is “in respect of” designated development as determined by Tobias JA in RAID is broad as is clear from his Honour’s reasoning in [178] – [185] and [189] set out above. As relied on by the Applicant, Tobias JA makes clear that “in respect of” is to be widely interpreted and denotes development which is a “not insignificant” part of the development (at [189]). At [185], he refers to “in respect of” as equivalent to “involving”.

157 The SEE which includes the Martens Report and the other supporting documentation for the four DAs suggests that the proposed sewerage system and works is not insignificant and these applications are therefore in respect of designated developments. The Martens report which formed part of the SEE contains the description of the proposed waste management system. This is summarised above in par 8, 9 and 10. It consists of the STP on the community-owned lot which connects to each individual lot. It also includes the irrigation fields on each lot. If there is debate as to whether the irrigation fields on individual lots are to be included in the definition of sewerage works, even if these are not considered the sewerage works on the community lot and piping throughout the subdivisions is not insignificant and the development applications clearly involve this part of the proposed development. Consequently the development applications were in respect of designated development.

158 The 2007 Amendment Regulation is not retrospective in its application. I do not accept the Second Respondent’s argument that these amendments should inform the decision whether under s 78(8)(a) of the EP&A Act the development applications in issue were “in respect of” designated development. It follows that an EIS should have been lodged as part of the four DAs under challenge as required by s 78A(8)(a). The Applicant is successful on this ground.

Conclusion

159 I have made findings and upheld some of the Applicant’s grounds of challenge, namely Grounds B (cl 22(3)(f) YLEP), E (cl 16(2)(h) YLEP) and G (designated development). The Second Respondent has indicated that it wishes to reopen its case to rely on s 25B of the Land and Environment Court Act 1979 and adduce additional evidence in relation to the exercise of the Court’s discretion to make declarations and orders. Accordingly I will not make any orders or declarations in this judgment.

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Citations

Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251

Most Recent Citation

Bungendore Residents Group Inc v Palerang Council (No 5) [2007] NSWLEC 703

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5

Geoffrey John Lomman v Windbelt Pty Limited [2018] NSWLEC 29

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

Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116

Cases Cited

25

Statutory Material Cited

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Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8

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Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8

CITATION:	Bungendore Residents Group Inc v Palerang Council and Anor (No 3) [2007] NSWLEC 251
PARTIES:	APPLICANT Bungendore Residents Group Inc FIRST RESPONDENT Palerang Council SECOND RESPONDENT Navaroo Constructions Pty Ltd
FILE NUMBER(S):	40302 of 2005
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- whether clause in LEP is a precondition to exercise of power to grant deveopment consent - whether "detailed analysis" provided to the Council as required by LEP - whether regard had to clause in DCP requiring site plan - whether designated development requiring an environmental impact statement - whether failure to take into account mandatory relevant consideration under LEP of existence of practical building precinct
LEGISLATION CITED:	Associations Incorporation Act 1984 Community Land Development Act 1989 Community Land Management Act 1989 Environmental Planning and Assessment Act 1979 s79C Environmental Planning and Assessment Amendment (Designated Development) Regulation 2007 Local Government Act 1919 Local Government Act 1993 s68 Shoalhaven Local Environment Plan 1985 cl 9(3) Yarrowlumla Council Development Control Plan (2005) Yarrowlumla Local Environment Plan 2002
CASES CITED:	Bungendore Residents Group Inc v Palerang Council & Anor [2006] NSWLEC 557; Bungendore Residents Group Inc v Palerang Council & Anor (No 2) [2007] NSWLEC 67; Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13 July 1993, unreported); Centro Properties Limited v Hurstville City Council & Anor (2004) 135 LGERA 257; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135; Coffs Harbour City Council v Arrawarra Beach Pty Limited [2006] NSWLEC 365; Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365; Franklins Ltd v Penrith City Council & Anor [1999] NSWCA 134; Gee v Council of the City of Sydney & Ors [2004] NSWLEC 581; Hospital Action Group v Hastings Municipal Council (1993) 80 LGERA 190; Kindimindi v Lane Cove Council (2006) 143 LGERA 277; King v Great Lakes Council (1986) 58 LGRA 366; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985-6) 162 CLR 24 ; North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435; Parramatta City Council v Hale & Anor (1983) 47 LGRA 319 Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor (1999) 110 LGERA 130; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74; Skouteris v Auburn City Council And Anor [2005] NSWLEC 207; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55; ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	21 August 2006 22 August 2006 23 August 2006 11 September 2006 12 December 2006 (Mention, Notice of Motion to reopen case) 9 February 2007 (Hearing on Notice of Motion to reopen case) 15 February 2007 (Judgment on Notice of Motion) 2 April 2007 (Hearing on further ground)
DATE OF JUDGMENT:	15 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Johnson SOLICITORS Environmental Defenders Office FIRST RESPONDENT Submitting appearance SECOND RESPONDENT Mr C Leggat SC SOLICITORS Harris & Company