Bungwahl Action Group Incorporated v Minister for Planning

[2006] NSWLEC 392

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION:

Bungwahl Action Group Incorporated v Minister for Planning & Others [2006] NSWLEC 392

PARTIES:

APPLICANT
Bungwahl Action Group Incorporated

FIRST RESPONDENT
Minister for Planning

SECOND RESPONDENTS
Matthew Goodall
Kellie McBride

FILE NUMBER(S):

41268 of 2005

CORAM:

Talbot J

KEY ISSUES:

Development Application :- whether proper consideration of relevant factor - whether noise impact taken into account - whether assessment of noise deferred by condition of consent.
Development Application:- whether consent of Minister ultra vires.
Environmental Planning Instruments:- Effect of repeal and transitional provisions in respect of state significant development.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 71 - Coastal Protection
State Environmental Planning Policy (State Significant Development)

CASES CITED:

Cameron v Nambucca Council (1997) 95 LGERA 268;
Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257;
Kindimindi Investments Pty Ltd v Lane Cove Council & Anor (2006) 143 LGERA 277;
Minister for Aboriginal Affairs v Pek-Wallsend Ltd (1986) 162 CLR 24;
Weal v Bathhurst City Council (2000) 111 LGERA 181

DATES OF HEARING:

14/06/2006, 15/06/2006

 
DATE OF JUDGMENT: 

07/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr T F Robertson SC
with Ms L M Byrne (barrister)
SOLICITORS
Stacks Forster

FIRST RESPONDENT
Mr P R Clay (barrister)
SOLICITORS
Department of Planning

SECOND RESPONDENT
Ms J Reid (solicitor)
SOLICITORS
Pike, Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

13 July 2006

41268 of 2005 Bungwahl Action Group Incorporated v Minister for Planning & Others

JUDGMENT

1 Talbot J: On 19 July 2005, the first respondent as Minister for Planning granted development consent to Simon Carroll as agent for the second respondents in respect of development application 173-7-2004 for:

(1) Staged tourist facility comprising in Stage 1:
(a) Construction of three (3) bunk buildings, each with three (3) bedrooms.
(b) Construction of dining pavilion.
(c) Construction of amenities block.
(d) Installation and construction of on-site sewage management system and disposal area.
(e) Upgrading of Horse Point Road and Dogwood Road to the main point of access to the property.
(f) Construction of bus parking area and internal access roads.
(2) Stage 2 comprising:
(a) Construction of six (6) ensuite cabins.
(b) Construction of reception / café / shop building.
(c) Installation and construction of on-site sewage management system.

2 The proposed development was described in the Development Application as:

tourist facility comprising six (6) ensuite cabins, three (3) bunk buildings, dining pavilion, amenities block and effluent disposal system (note: staged development as shown on site plan).

3 In a Supplementary Ecological Assessment Report annexed to the Bushfire Threat Assessment included with the development application, the proposed development is described as “tourist accommodation consisting of six self contained cabins and surf camp with bunkhouse accommodation and amenities. In addition there is a café, shop and reception area”. The Flora and Fauna Assessment, also accompanying the development application, describes the proposal as “tourist accommodation and surf camp”.

4 The parties agree that the development proposed falls within the definition of tourist facility, permissible with consent in the zone, although the applicant says the Minister failed to take into account the proposed use of the land, which it characterises as “surf school and entertainment complex”. Permissibility is not an issue in this case.

5 The applicant, Bungwahl Action Group Incorporated, asserts that the consent is void on the ground that there was a failure to take into account mandatory relevant considerations on two inter-related bases:

1. The Minister as consent authority failed to take into account the proposed use of the land for the purposes of a surf camp and entertainment facilities.

2. No noise assessment of the proposal was conducted by the proponents nor requested by the Minister’s assessment officer.

6 It is also asserted that the consent is void as the decision to grant the consent was ultra vires because the Minister did not have power to grant consent to the application. It is appropriate to deal with the ultra vires ground first because if the applicant’s argument is accepted the other issues do not arise.

Ultra Vires

7 At the date of lodgement of the development application on 22 July 2004 the effect of cl 10(1) and (2) of State Environmental Planning Policy 71 – Coastal Protection (“SEPP 71”) was that the proposed tourist facility was state significant development and the Minister was the consent authority. When State Environmental Planning Policy (State Significant Development) 2005 (“SEPP (SSD)”) was made on 25 May 2005, SEPP 71 was amended by the omission of cl 10 by the operation of cl 13(1). Clause 13(2) of SEPP (SSD) provided, in effect, that on 26 May 2005 clause 13 was repealed.

8 However, cl 14 of SEPP (SSD) provides:

14 Transitional provisions

(1) This Policy does not apply to or in respect of the determination of a development application that was made, but not finally determined, before the commencement of this Policy.

(2) If at any time after the commencement of this Policy, development that is not State significant development becomes State significant development, this Policy does not apply to or in respect of the determination of a development application in respect of that development that was made, but not finally determined, before that time.

9 The applicant alleges that as a consequence of the repeal of cl 10 of SEPP 71 on 25 May 2005 the development was no longer state significant development and the power of the Minister to grant consent had been revoked when the Minister purported to grant consent on 19 July 2005.

10 The Minister relies upon cl 14 of SEPP 71 as a saving provision to the effect that, for the purposes of the determination of the development application, cl 10 of SEPP 71 was not repealed on 25 May 2005. I agree with the Minister that based on the ordinary meaning of cl 14(1) the better view of the purpose of the transitional provision was to preserve the status quo, including the power of the Minister to determine a development application. Clause 13 is part of SEPP (SSD) and therefore does not apply to the subject development application which had been made but not determined before the commencement of the policy. Accordingly the development application remained to be considered and determined as state significant development pursuant to SEPP 71 under s 76A(9), which was not repealed until after the development application was determined. SEPP 71 continued to apply in respect of the development application.

11 Clause 14(1) has a continuing effect on all development applications made before the commencement of SEPP (SSD) irrespective of whether they were for state significant development before, or became state significant development after, the commencement of SEPP (SSD). Clause 14(2) has a continuing effect on all development applications made before or after the commencement of SEPP (SSD) where the development becomes state significant development after SEPP (SSD) commences but before the development application is determined. The clause therefore provides a logical comprehensive scheme for the purpose of maintaining the status quo in respect of undetermined development applications after any change in the standing of the development in terms of state significant development related to the making of SEPP (SSD). In each case the consent authority remains the same notwithstanding a change in standing of development as state significant development.

12 While ever the development remained state significant development under SEPP 71 the Minster was the consent authority by dint of s 76A(9).

13 Without abandoning the construction of cl 14 proffered, that SEPP (SSD) had no application to the subject development application, including the effect of cl 13, the first respondent says that the combined effect of cl 13 and s 34 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) is:

(a) the development remains State Significant Development;

(b) the Minister had power to determine the development application pursuant to Section 76A(9) EPA Act;

(c) the unrepealed provisions of SEPP 71 apply to the consideration of the development application; and

(d) the mechanical or other provisions of SEPP (SSD) do not apply by virtue of Clause 14 of SEPP (SSD).

14 Section 34(4) at the relevant time provided:

The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect:
(a) the previous operation of the instrument or anything duly suffered, done or commenced under the instrument,
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument, or
(c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability,
and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred.

15 Firstly, it is said, (a) maintained the previous operation of the declaration that the development was state significant development. Secondly, the declaration created a right or privilege that was acquired under the instrument within the meaning of (b). I am not sure that the latter claim is correct as a matter of proper construction. Ultimately it is not necessary to reach a final conclusion in respect of either argument. The question is resolved by the continuing effect of cl 14 of SEPP (SSD).

16 Clause 13 as part of SEPP (SSD) does not apply in respect of the determination of the subject development application. That leaves clause 10 of SEPP 71 in place.

17 The construction adopted by the applicant in my view would leave the pending development application in a planning limbo. If the argument is correct SEPP (SSD) would not apply per force cl 14(1). Clause 10 of SEPP 71 would not apply by dint of cl 13(1) (of SEPP (SSD)). It is not appropriate to construe a planning instrument in a way that has an impractical and irrational consequence. Taking a purposive approach, there is a reasonable and sensible alternative available.

18 I am satisfied that the overall intention was for undetermined applications to be assessed and finally determined under the pre-existing regime. It is not necessary to engage the assistance of s 34 to enhance that result.

19 I find that at the date of determination of the development application the Minister was the correct consent authority under s 76A(9) of the EPA Act.

Failure to take into account relevant considerations

20 There are two interrelated issues raised in respect of this ground.

21 Firstly the applicant contends that the Minister failed to take into account the proposed use of the land for the purposes of a surf camp and entertainment facilities.

22 Secondly the issue of noise assessment is raised in two different ways namely:

1. The Minister as consent authority failed to take into account the impact of noise from the proposed development.

2. The Minister as consent authority deferred consideration of the impact of noise from the proposed development by the imposition of condition B14 of the consent which provides as follows:

Operations Management
B14. Plan of Management
Prior to the issuance of a construction certificate, a plan of management for the operation of the tourist facility shall be submitted to and approved by council. The plan shall address, but not be limited to, the following matters:
(1) hours of operation of the café/restaurant;
(2) noise management objectives for the whole of the development;
(3) noise levels of external speakers. The plan of management shall require any external speakers to be controlled by a PE cell to avoid associated noise outside daylight hours;
(4) presence of on-site management and facilities to accommodate a full-time on-site manager.

23 The applicant relies on an observation made by the assessment officer who reported to the Minister in the following terms:

The proposed development is for a tourist facility and whether or not the facility is used for a surf school in the future is not a matter which is relevant to this development application.

24 No legal consequence is said to follow from the use of the land as a surf camp and entertainment venue. It is not claimed that the development application is not for a use which is permissible with consent. The proposal falls within the definition of a “tourist facility”.

25 The arguments can be distinguished from Weal v Bathhurst City Council (2000) 111 LGERA 181 where the resolution of the acoustic impacts for a rail freight terminal was effectively left to the Environment Protection Authority. The conditions of consent provided that the consent would not operate until the applicant satisfied the council that relevant approvals had been obtained from the EPA.

26 The Minister relies upon the following facts as relevant to the consideration of the development application:

(i) The Statement of Environmental Effects does not identify the potential for acoustic impacts.

(ii) In the course of referrals to authorities including the local council and the public notification process issues of acoustic impact from the use of the premises was raised. The parties who raised it included Department of Environment and Conservation (NSW), the local council and many local objectors. That occurred principally during the period August/September 2004.

(iii) On 22 December 2004 Allen Bright of DIPNR wrote to the proponent identifying issues to be dealt with by the proponent. Acoustic issues were identified by Mr Bright. The letter also refers to a site inspection planned to take place on 14 January 2005.

(iv) On 1 March 2005 the proponent provided additional information to DIPNR including a “plan of operation”. The letter outlined measures the effect of which was intended to control or ameliorate potential acoustic impacts.

(v) The Plan of Operation, prepared on 15 January 2005, included amongst its objectives:


“This document aims to give an overview of standard operational procedures with a view to:

> minimise the environmental impact;

> minimise noise;

> educate customers to uniqueness of area;

> ensure smooth, efficient and consistent operation of tourist facility.”

In the section under the heading “Minimise Noise” the following:


“To ensure a pleasant stay for all guests, minimal impact on neighbours and minimal impact on native fauna, the following management items are proposed:

> Operating hours restaurant

Restaurant hours to comply with licensing conditions. Suggest that general service will cease at 9.30pm with a selection of snacks available until 10.00pm.

> Public announcement equipment (PA)

The PA system will not be required to operate on the northern side to the tourist facility (family and local clientele).
At certain intervals during a group stay a PA system may be used for the purpose of informing customers of the daily itinerary. This will be available to teachers and tour guides on an as required basis. Decibel reading should be such that the use of the PA system is not audible by guests in the northern area of tourist development (including neighbours).

> On-site management

A designated manager will always remain on-site. Should a situation arise where there is excessive noise emanating from any area of this tourist facility, the management will be on-call to control the situation.”


(vi) On 24 March 2005 Ian Cohen MLC made a submission directly to the Minister, including amongst his issues of concern the noise impacts of people attending the proposed premises.

(vii) A briefing note dated 13 April 2005 to the Minister with a draft response to Ian Cohen identified that submissions had been received concerning noise pollution and the Minister was advised:

“The issues raised in DA 173-1-2004 have been adequately resolved in negotiations with the Applicant. Assessment of the development application is nearing completion. A recommendation of consent with conditions addressing the above concerns is anticipated.”

(viii) On 24 May 2005 the Minister wrote to Ian Cohen MLC including the following:

“Thank you for bringing these concerns to my attention. I can assure you that the matters you have raised and in particular the significant values of Smiths Lake are appreciated by the Department of Infrastructure, Planning and Natural Resources (DIPNR) and will be carefully considered in the assessment of this proposal.”

(ix) The s.79C evaluation included in the report to the Minister deals with the issue of noise as follows:


“2.2 Social and economic impacts

2.2.1 Noise and amenity concerns

Any noise and amenity impacts of the development can be mitigated through the presence of a full-time on-site manager and the preparation of a plan of management for the operation of the development, which will provide for specific opening hours and management control techniques to ensure that the residential amenity of adjoining land owners is protected at all times.”

(x) The planning assessment report provides the following material:


“6.2.10 Noise and amenity impacts

Issue: Concern that noise, visual and environmental pollution will impact on residential amenity. Risk of anti-social behaviour and vandalism resulting form the development.

Raised by: Objectors

Consideration: Any noise and amenity impacts of the development can be mitigated through the presence of a full-time on-site manager and the preparation of a Plan of Management for the operation of the development, which will provide for specific opening hours and management control techniques to ensure that the residential amenity of adjoining land owners is protected at all times

The cabins will be visible from the Lake and its foreshores and are considered to be an appropriate low scale, single storey character and will sit comfortably in the setting. The proposed development is an eco-tourism facility and a combination of signage and literature for guests and information packs for tour group leaders will educate guests about the unique nature of the area and ways to protect the environment.

Resolution: A draft condition of the development consent requires the applicant to prepare, lodge with Council, and abides by a Plan of Management governing the use and operation of the development. The plan of management will address matters including hours of operation of the café/restaurant, noise management objectives and the presence of a full-time on-site manager. This condition will ensure any adverse impacts of occupants on other guests of the facility, and on surrounding residents in general, are minimised and managed.”

27 It is clear from the above that the issue of noise impacts was clearly raised before the Minister made his decision.

28 Apart from condition B14, to which I will return in due course, the conditions of consent required preparation of a Noise and Vibration Management Plan, set compliance standards during construction, stipulated that noise associated with the operation of any plant machinery or other equipment on the site should not exceed 5 dB(A) above the background noise level when measured at the boundary of the site, and imposed a three-monthly compliance report procedure.

29 The Plan of Management contemplated by condition B14 is clearly a reflection of the Plan of Operation proposed by the proponent. Condition B14 summarises the measures itemised in the Plan of Operation.

30 Reports to the Minister assessed the potential for noise impact and made recommendations for management of the operation of the development in that respect.

31 The Minister therefore clearly had the issue of noise before him together with suggested means of alleviating the impact. The proposed plan of management was identified as a means of dealing with the issue of noise impact. Although the final detail was left to be determined by the council the implementation of the measures was considered to be adequate to ensure that the impacts of noise from the general activities on the site were properly addressed. These were essential facts the Court of Appeal found missing in Weal (at [89]). It was accepted by Giles JA that it was open for the consent authority to provide a condition that necessary approvals be obtained from another authority such as the EPA provided that the consent authority itself gave proper consideration to the relevant environmental impact.

32 The facts in this case are a far cry from those found in Cameron v Nambucca Council (1997) 95 LGERA 268 where consent was granted subject to a condition requiring a Traffic Impact Study by a qualified consultant prior to the commencement of operations. As was the case in Cameron, there were issues before the Minister in respect of the prospect of acoustic impacts from the development. However in Cameron there was a failure to consider the impact of the traffic generation and the means to mitigate the harm, prior to the grant of consent. There can be no doubt that the Minister was alerted to the fact that there was a live issue in relation to the impact of noise. He addressed that issue in its various aspects in the manner described. Although opinions may differ in respect of their effectiveness, he nevertheless took direct steps to mitigate that harm.

33 Repeating what I said in Cameron, there is no obligation upon a consent authority to resolve all of the issues before granting consent. In this case the Minister provided a means whereby the identified impacts might be resolved or at least mitigated in a way that he considered to be acceptable. Condition B14 is designed “to ensure that the issue is fully explored and managed” (Cameron at 278).

34 It is not the function of this Court reviewing the exercise of the Minister’s administrative discretion to substitute its own decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). Accordingly it is not my position to embark upon a review of the merits of the Minister’s decision. Although care must be taken not to “slide into impermissible merit review” by adopting such epithets as “proper, genuine and realistic” consideration as Basten JA said in Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 at [79], I am satisfied that the Minister gave real, genuine and proper consideration to what he was advised were the likely impacts of noise corroborated by submissions made directly to him and reported to him by the assessment officer.

35 There is a convenient authoritative and informative summary of the principles which govern the approach the Court should take in the event of a challenge that a consent authority has not considered a relevant matter in the judgment of McClellan CJ (as he then was) in Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 at [37]. I am satisfied applying those tests that the Minister gave proper, genuine and realistic consideration to the issues in relation to the impact of noise. He applied conditions that were directed to amelioration of any prospective harm to the environment from the development, particularly in relation to noise. The presumption of regularity is not relevant to the Court’s decision.

36 The applicant has not discharged the difficult onus to satisfy the Court that the relevant discretion has miscarried. It is not always the case that issues in relation to noise can only be addressed and analysed by a formal acoustic report from an expert using scientific instruments to measure likely sound levels and the attenuation thereof. The potential noise sources identified by objectors and others and reported upon were not such that they demanded specialised knowledge or understanding in respect of the nature and extent of the noise. They generally related to activities of human beings enjoying themselves at a resort location. There was no reason to treat the circumstances as unusual or unique. Quite obviously the Minister, and those assisting him to reach a decision, were satisfied that appropriate measures could be introduced by way of administrative control in order to mitigate the adverse impact of noise generated on the site including limits on the use of noise creating plant or equipment, such as a public announcement (PA) system.

37 The proposed use for the purposes of a surf camp does not elevate the proposed use of the site beyond the ambit of the matters placed before the Minister. Issues in relation to the surf camp were clearly raised in the submissions made to the Department and reported to the Minister. It cannot be said that his attention was not directed to this aspect of the development or that he ignored it.

38 I am not satisfied that the Minister failed to take into account a relevant consideration in relation to the exact nature of the activities to be carried out on the site or by failing to properly consider the noise impacts of the development. Moreover the consideration of the effects of noise was not in a relevant sense postponed or deferred by the imposition of the condition of consent.

Orders

39 The applicant has failed to persuade the Court that orders should be made. It is appropriate therefore that the application be dismissed.

40 Each respondent was separately represented. The Minister instructed solicitors and counsel. The second respondents were represented by their solicitors. Both sets of respondents had a relevant interest in the outcome. Firstly, the Minister was entitled to defend the determination that he had made, particularly in regard to the allegation of acting ultra vires. The second respondent confined argument to the allegation of a failure to take into account the relevant considerations, particularly in respect of noise.

41 The proceedings were not, in my view, exacerbated or the time taken extended by separate representation of respondents. Accordingly, in my view, prima facie both respondents are entitled to an order for costs in their favour.

42 However as the issue of costs has not been formally argued I propose to allow an opportunity for any party to make an application for a contrary order within 14 days of the publication of this judgment. If no such application is made then the order I propose that the applicant pay the respondents’ costs will be affirmed.

43 The orders that I make are:

1. Application dismissed.

2. That the applicant pay the costs of both respondents unless any party makes application to the contrary within 14 days.

3. Exhibits may be returned.