Byron Bay Everglades Resort Pty Ltd v Byron Shire Council
[2000] NSWLEC 81
•05/29/2000
Land and Environment Court
of New South Wales
CITATION: Byron Bay Everglades Resort Pty Ltd & Anor v Byron Shire Council & Anor [2000] NSWLEC 81 revised - 13/06/2000 PARTIES: APPLICANT
RESPONDENT
Byron Bay Everglades Resort Pty Ltd & Anor
Byron Shire Council & AnorFILE NUMBER(S): 40139 of 1999 CORAM: Cowdroy J KEY ISSUES: Environmental Planning Instruments :- draft local environmental plan - amendment to local environmental plan - no specific criteria required to be considered by council when resolving to make local environmental plan - reasonableness of resolution to make local environmental plan dependent on knowledge of council - public exhibition of local environmental plan not incomplete or misleading - resolution to recommend Local Environmental Plan for gazettal reasonable where Part 3 of the Environmental Planning and Assessment Act 1979 has been satisfied - council complying with provisions of Part 3 of the EP&A Act and therefore providing procedural fairness to landholders affected by local environmental plan - absence of environmental study as required by Direction pursuant to s 117 of the EP&A Act not necessarily resulting in invalidity of draft local environmental plan. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 ;
Minister for Aboriginal Affairs and Anor v Peko-Wallsend limited and Ors (1986-87) 162 CLR 24;
Carltona Limited v Commissioner of Works [1943] 2 All ER 560 ;
Sean Investments v MacKellar (1981) 38 ALR 363 ;
Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ;
Leichhardt Municipal Council v Minister for Planning & Director of Planning (1992) 78 LGERA (CA) 306 ;
John Brown Lenton & Co Pty Limited v Minister for Urban Affairs Planning and Ors [1999] NSWLEC 213, unreported;
Vanmeld Pty Limited v Fairfield City Council and Anor (1998-1999) 101 LGRA 297;
Parramatta City Council & Anor v Hale & Ors (1981-82) 47 LGRA 319 ;
Monaro Acclimatisation Society & Anor v the Minister for Planning & Anor, (Stein J, NSWLEC, 2 March 1989, unreported);
Canterbury District Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 ;
Brooks v Minister for planning and Environment (1988) 68 LGRA 91 ;
Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and planning (1996) 90 LGERA 341;
Gibson v Skibs A/S Marina and Orkla Grobe A/B and Smith Coggins, Ltd. [1966] 2 All ER 476 ;
Luu v Renevier (1989) 91 ALR 39;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
Belongil Progress Association Inc v Byron Shire Council & Anor [1999] NSWLEC 271 ;
The City of Parramatta v Pestell (1972-1973) 128 CLR 305;
DATES OF HEARING: 14/3/00, 15/3/00, 20/3/00, 21/3/00, 22/3/00 DATE OF JUDGMENT:
05/29/2000LEGAL REPRESENTATIVES:
FIRST & SECOND APPLICANT
Mr J Webster (Barrister)SOLICITORS
Halliday & StainlayFIRST RESPONDENT
Mr J Maston (Barrister)SECOND RESPONDENT
Mr P Clay (Barrister)SOLICITORS
FIRST RESPONDENT
SECOND RESPONDENT
Wilshire Webb
Legal Services Branch DUAP
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40139 of 1999
CORAM: Cowdroy J
DECISION DATE: 29 May 2000
Byron Bay Everglades Resort Pty Limited
& First Applicant
Jerry Lee Bennette
Second Applicant
Byron Shire Council
First Respondent
&
Minister for Department of Urban Affairs and Planning
Second Respondent
JUDGMENT
Background
1. The first applicant, Byron Bay Everglades Resort Pty Ltd (“Everglades”) is the registered proprietor of land known as Lot 2 in Deposited Plan no 549394 (“the Everglades land”). The second applicant Mr Jerry Lee Bennette (“Mr Bennette”) owns land which adjoins the Everglades land. The applicants seek a declaration that the draft Byron Local Environmental Plan 1988 (Amendment No 10/98) hereafter referred to as “Amendment 75” is invalid.
2. If implemented Amendment 75 would amend the Byron Local Environmental Plan 1988 (“the LEP”) by altering most of the zoning of the Everglades land. Such land presently has three zonings namely, 2(t) Tourist Area Zone, 7(a) Wetlands Zone and 7(b) Coastal Habitat Zone. Amendment 75 would amend the existing zoning by increasing the 7(a) Wetlands Zone and 7(b) Coastal Habitat Zone and by substantially reducing the 2(t) Tourist Zone. In addition, Amendment 75 would amend cl 42 of the LEP relating to the zoning boundaries of land zoned 7(b) Coastal Habitat Zone.
3. The Everglades land is located at Broken Head Road, Byron Bay and has already been the subject of litigation in this Court. In proceedings no 10131 of 1997 Everglades’ architects instituted a class one appeal (“the appeal”) following the refusal of Byron Shire Council (“the council”) of a development application for the construction of thirty-three holiday cabins and a manager’s cabin on the Everglades land (“the approval”). On 14 September 1998, Senior Commissioner Jensen upheld the appeal for a staged development of the Everglades land comprising the erection of three holiday cabins and a manager’s cabin, pursuant to s 91AB(1)(c) of the Environmental Planning and Assessment Act 1979 (“the Act”). Such provisions are now contained in s 80(4), s 80(5) of the amended Act.
4. Following the hearing of the appeal both the council’s barrister and the environmental expert retained by council Mr David Milledge contacted Councillor Coman who had been present throughout the hearing to advise her that the Everglades land should be rezoned. On 21 September 1998, Councillor Coman conferred with Mr David Kanaley, the council’s Director of Environmental Services and sought his assistance to draft the terms of a resolution which she wished to submit to council for the rezoning of the Everglades land.
5. At the council meeting on 22 September 1998 Councillor Coman moved her proposed resolution for the rezoning of the Everglades land. Councillor Coman informed council that there was an urgent need to rezone the Everglades land in view of its possible sale. Debate followed in the course of which she said:-
This comes out of the court case here at the Everglades where it was discovered that some of the zonings were inappropriate, that the map if you like needed to be re-drawn for the site and also that under our LEP whilst zones 7A and 7K and so on are protected there is need for some additional protection for the 7B Coastal Habitat Zone.
6. At the conclusion of the debate council resolved as follows:-
1.
[Not relevant]
2. That in light of the evidence presented to the recent court case, Council resolves pursuant to sections 54(1) and 74(1) of the Environmental Planning and Assessment Act, 1979 to prepare a draft Local Environmental Plan to rezone the ‘Everglades’ site Lot 2 DP 549394, Broken Head Road, Byron Bay from the existing zones to a zone or zones more appropriate and better reflecting the characteristics of the site, including 2(t) (Tourist Area Zone) and Environmental Protection Zone(s). A Local Environmental Study is not necessary as the proposal is to ensure the protection of high conservation value coastal lands consistent with the NSW Coastal Policy 1997 and the North Coast Regional Environmental Plan 1988.
3. That Council further resolves pursuant to sections 54(1) and 74(1) of the Environmental Planning and Assessment Act, 1979 to include in the draft Local Environmental Plan an amendment to clause 42(1)(b) of the Byron LEP 1988 to protect 7(b) (Coastal Habitat Zone) by inserting 7(b) in the zones listed in that clause.
4. That pursuant to section 54(4) of the Environmental Planning and Assessment Act, 1979, that the Secretary of the Department of Urban Affairs and Planning be notified of Council’s decision.
5. That Council exhibit the draft Local Environmental Plan pursuant to section 66 of the Environmental Planning and Assessment Act 1979.
6. That following exhibition, the draft Local Environmental Plan be reported to Council for consideration of submissions pursuant to section 67 of the Environmental Planning and Assessment Act, 1979.
First challenge: relevant considerations
7. The applicants claim that in adopting such resolution (“the initial resolution”) council took an irrelevant fact into consideration namely that the development consent for the Everglades land had been granted by this Court. Additionally it is submitted that council failed to take into consideration other factors of relevance namely various reports held by council, survey data and the potential environmental impact of the initial resolution. As a consequence the applicants submit that the decision of council to make the initial resolution was so unreasonable that it was not open to the council to so resolve. On these grounds the applicants seek a declaration that the said resolution is invalid.
8. Part 3, Div 4 of the Act makes provision for the preparation of a draft local environmental plan. Section 54(1) provides:-
A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area.
9. Once a resolution pursuant to such section is made the process to make a local environmental plan is initiated. Part 3 Div 4 does not specify any pre-conditions or criteria for the making of an environmental planning instrument. Section 24 of the Act provides that a local environmental plan must inter alia be made ‘ for the purposes of achieving the objects of the Act’ . Subject only to this constraint a council is not bound to have regard to any specific matter before making a resolution pursuant to s 54(1).
10. In Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986-87) 162 CLR 24, Mason J (as he then was) stated at 39:-
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 181, 196-197.
Conversely since the Act does not require council to consider any specific matter in adopting a resolution pursuant to s 54(1) it follows that a council is entitled to consider any matter, provided it observes the overriding consideration of reasonableness and the requirement of s 24 of the Act.
11. Applying these considerations, the council in the exercise of its discretion pursuant to s 54(1) of the Act was entitled to consider the fact that a staged development approval had been given for the Everglades land. In The City of Parramatta v Pestell (1972-1973) 128 CLR 305 Barwick CJ at 315 determined that council’s resolution was founded upon an erroneous opinion and accordingly ‘ could not have been the opinion required by the statute’ . In contrast, it could not be said that council’s opinion to adopt the initial resolution was made otherwise than with proper considerations in accordance with its statutory discretion pursuant to s 54(1) of the Act.
12. For the same reasons as discussed above the discretion invested in the council pursuant to s 54(1) of the Act did not as the applicants submit require council to turn its collegiate mind to the technical information concerning the Everglades land held by Mr Kanaley before its adoption of the initial resolution. For this reason the first ground of challenge fails.
Second challenge: reasonableness of the initial resolution
13. The applicants claim that the council failed to inquire into the attributes of the Everglades land and the effect of its rezoning proposal before making the initial resolution. Additionally it is submitted that council took into consideration an irrelevant fact; namely the court’s approval and failed to consider numerous fact relevant to Amendment 75. Accordingly the applicants submit that the council’s decision to adopt the initial resolution was so unreasonable that it was not open to the council to so resolve: see Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230.
14. In Elliot v Southwark London Borough Council [1976] 1 WLR 499, Megaw, James and Geoffrey Lane LJJ in their joint judgment at 507 observed:
- It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.
15. In Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178, Toohey J observed that the statute in question did not create an obligation to inquire and accordingly a determination thereunder could not be unreasonable merely because the decision maker did not make inquiries. Council has an unconfined discretion pursuant to s 54(1) of the Act. Since a council is not required to consider any particular facts when making a resolution pursuant to such section, it follows that council does not have a statutory obligation to make the inquiries specified by the applicants.
16. Nevertheless council must exercise its power pursuant to s 54(1) reasonably which requires it to possess sufficient knowledge to understand the initial resolution: see Parramatta City Council & Anor v Hale & Ors (1981-82) 47 LGRA 319 at 335. It follows that if council did not possess such knowledge it may have been required to make further inquiries or to consider ‘ other factual material likely to be of critical importance’ : Luu v Renevier (1989) 91 ALR 39 at 50 per Full Federal Court of Australia: see also Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170.
17. When the initial resolution was made the council had considerable knowledge of the Everglades land. Council’s file relating to such land was available at the meeting. Prior to the adoption of the initial resolution Councillor Coman conveyed to council the advice she had received from Mr Milledge and from the council’s barrister each of whom had inspected the Everglades land. Council members had also inspected such land prior to council’s refusal of the development application the subject of the appeal.
18. In Hospital Action Group Association Inc v Hastings Municipal Council 80 LGERA 190 at 195, Pearlman J drew inferences from the history of a development application to ascertain the collegiate knowledge of a council. Similarly in these proceeding it can be inferred that the council was familiar with the Everglades land arising from the application to develop such land, the council’s refusal of development consent and from the appeal.
19. In addition Mr Kanaley possessed an environmental study which had been prepared in July 1995 by Resource Design and Management Pty Ltd which concluded that the Everglades land was flood prone and likely to contain acid sulfate soils. Mr Kanaley also held a 1995 Local Environmental Study of the Everglades land which dealt with the vegetation and the possibility of acid sulfate soils. The study concluded:-
Overall it is considered that the land is significantly constrained for the purposes of further development given the drainage problems, the significant vegetation on the site, its conservation value, and the desirability of providing adequate buffers to this vegetation.
20. Counsel for the first respondent sought to invoke the principle in Carltona Limited v Commissioner of Works [1943] 2 All ER 560 at 563 namely that a minister who is entrusted with administrative functions may act through a duly authorized officer of his department. The principle is relied upon to demonstrate that council is deemed to have had the benefit of Mr Kanaley’s detailed knowledge of the Everglades land when it made the initial resolution. Such principle has also been considered in other authorities: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 38; O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11.
21. The information of which Mr Kanaley was aware was not crucial to council’s decision to adopt the initial resolution: contrast Luu v Renevier at 50; HelenaValley/Boya Association (Inc) v State Planning Commission; Ex parte HelenaValley/Boya (1990-1991) 71 LGRA 407 at 430. Within the context of s 54(1) council had sufficient knowledge of the Everglades land arising out of the development application and the appeal to understand the significance of its resolution to make Amendment 75: contrast Parramatta City Council & Anor v Hale & Ors at 335 wherein the council did not possess sufficient information to understand the significance of its decision. It was not essential for the council as a collegiate body to have had a detailed knowledge of the technical reports which were held by Mr Kanaley. It follows that the application of the Carltona principle does not arise.
22. Taking into consideration the knowledge which council possessed relating to the Everglades land it could not be said that council’s initial resolution pursuant to s 54(1) was so unreasonable that council, properly advised would never have so resolved. This ground of challenge fails.
Third challenge: alleged failure to exhibit draft LEP as required by the Act
23. The applicants submit that the council failed to exhibit Amendment 75 as directed by the second respondent (“the Minister”) and was thereby in breach of the requirements of s 65, s 66(1)(b)(ii) and s 66(1)(d) of the Act. Section 65 authorizes exhibition of a draft local environmental plan with the Director’s approval subject to any conditions as may be imposed. Section 66 (1)(b)(ii) requires a council, upon receipt of the certificate pursuant to s 65 to publicly exhibit a copy of any State environmental planning policy, regional environmental plan, or relevant direction pursuant to s 117 of the Act applying to the land the subject of the draft local environmental plan. In summary, s 66(1)(d) makes provision for a council to exhibit any information that may assist in the understanding of a draft local environment plan.
24. On 12 October 1998 Mr Kanaley wrote to the Regional Director, North Coast, of the Department of Urban Affairs and Planning (“DUAP”) advising of council’s resolution of 22 September 1998, the reasons for its adoption and of council’s intention to use its s 65 delegations to issue a certificate authorizing the exhibition of Amendment 75. The reasons for council’s resolution to make Amendment 75 were stated to be the need to ensure protection of high conservation value coastal lands consistent with the NSW Coastal Policy 1997 (“the Coastal Policy”) and with the North Coast Regional Environmental Plan 1998 (“the REP”). The letter stated that although the REP required an assessment of the impact of zoning changes upon land the subject of such plan, a local environmental study was unnecessary.
25. The Everglades land is subject to the Coastal Policy. Lands affected by the Coastal Policy are subject to Direction S 26 (“the Direction”) which was made by the Minister pursuant to s 117 of the Act. It provides that a council in the preparation of a local environmental plan shall:-
(a) not alter, create or remove existing zonings unless an environmental study relating to the draft LEP has been prepared and considered by Council.
26. On 26 October 1998 the Assistant Director (North Coast) of DUAP responded. Such letter acknowledges that the proposal of council was inconsistent with the Direction because no environmental study was to be carried out, but continued:-
The letter continued:-
However, as the intent of the draft plan is to protect environmentally sensitive coastal land with appropriate zoning controls an environmental study appears unnecessary.
While a formal study is not necessary, Council should exhibit material with the draft plan that shows the various environmental components of the land, identifies current development proposals and proposed measures to mitigate environmental impact, and identifies the intent of the draft amendment and its relationship to the provisions of the Coastal Policy. This information could be based on previous environmental study work, and the work carried out for the recent Court action concerning the land.
27. A certificate was issued pursuant to s 65, signed by Mr Kanaley under the delegated power of the Minister. No conditions were attached to the certificate and it is apparent from DUAP’s letter dated 26 October 1998 that it did not recommend such certificate should be issued with conditions. The observations of DUAP in relation to the public exhibition of Amendment 75 as contained in its letter of the 26 October 1998 were purely advisory: see John Brown Lenton & Co Pty Limited v Minister for Urban Affairs Planning and Ors [1999] NSWLEC 213, unreported.
28. Notices were published advising the public of the exhibition of Amendment 75. It was exhibited between 14 April 1999 and 14 May 1999 in the main foyer of the council administration building, together with a map associated with Amendment 75, a document entitled ‘Appendix 1’; the s 65 certificate; the document entitled NSW Coastal Policy 1997, Strategic Actions relevant to the preparation of Byron Local Environmental Plan 1988 No 10/99 - Everglades and 7(b)-(Coastal Habitat Zone); the Landmark Ecological Services Plan of 1998, and the Court order dated 14 September 1998 relating to the approval.
29. An envelope containing sets of documents comprising Amendment 75 and the supporting documents as specified above (“the core documents”) was available on a shelf which adjoined the noticeboard in the foyer of the council administration building. In addition various documents including State environmental planning policies, directions pursuant to s 117 of the Act and regional environmental planning policies were available for public inspection and contained in a lever arch file on the shelf in the foyer of the council administration building. The contents of the envelope and the lever arch file were clearly marked.
30. Ms Walker, a council officer, testified that each day she checked the sets of core documents contained in the envelope available to the public in the council’s administration building. On no occasion did she find any incomplete. She explained that some of the bundles of exhibited documents which were made available for members of the public were regularly removed but there were always several complete sets of documents available.
31. Mr Greene, a director of Everglades attended the council administration building during the period of exhibition of Amendment 75. He had already been furnished with a copy of Amendment 75, a copy of the advertisement and a map. On exhibition he saw the same documents that had already been provided to him by letter. He did not see a copy of the Coastal Policy 1997. Mr Stephen Connelly a town planner retained by Everglades also attended the exhibition and stated that he observed notices pursuant to s 66 and s 70 of the Act and a s 65 certificate and a zoning map. He did not see any other documents. Mr Bennette did not see Amendment 75 on display. He asked for assistance at the council administration building and was referred to an envelope or folder bearing the notation ‘draft LEP Everglades’ or similar wording.
32. The discrepancy between the evidence of the applicants and the council concerning the exhibited documents is probably explained by the fact that not all of the documents relating to Amendment 75 were displayed on the noticeboard. In addition neither Mr Connelly nor Mr Greene made any inquiries at the council’s administration building relating to the exhibition of Amendment 75 and neither noticed the documents on the noticeboard. Their evidence was vague, and was accordingly unreliable. The council’s evidence provided by Mr Kanaley and Ms Walker relating to the exhibition of Amendment 75 was explicit and comprehensive. The Court accepts their evidence as to the method and content of the documents exhibited in relation to Amendment 75.
33. The Direction and the Coastal Policy were on public display. Whilst such documents were in a folder, they were publicly available and clearly marked with other relevant documents. By virtue of such exhibition the council has satisfied the requirements of s 66(1)(b)(ii) of the Act. These circumstances may be contrasted to the facts in Monaro Acclimatization Society & Anor v the Minister for Planning & Anor , (Stein J, NSWLEC, 2 March 1989) wherein documents related to the draft local environmental plan were available only upon request.
34. Section 66(1)(d) requires the council to ‘ publicly exhibit such other matter as it considers appropriate and necessary to better enable the draft plan and its implications to be understood’ . Accordingly council has a broad discretion to select documents which it will exhibit pursuant to such section. In the absence of any condition attaching to the s 65 certificate concerning the material to be exhibited, the discretion of council contained in s 66(1)(d) is paramount.
35. The applicants submit that the exhibition of Amendment 75 was misleading. Whilst the council may determine which additional documents to exhibit pursuant to, s 66(1)(d), such documents may not mislead the public as to the purpose or function of a draft local environmental plan: Canterbury District Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 at 321. In the present proceedings council exhibited documents relevant to Amendment 75. Documents such as the Court order and the Strategic Action Plan provided a greater understanding of the context of Amendment 75. It could not be said the public exhibition of the additional documents pursuant to s 66(1)(d) of the Act rendered the exhibition of Amendment 75 misleading.
36. The Court is satisfied that by the exhibition of the documents referred to in Mr Kanaley’s and Ms Walker’s evidence the council has fulfilled its statutory responsibilities pursuant to s 65, s 66(1)(b)(ii) and s 66(1)(d) of the Act.
Fourth challenge: reasonableness of second resolution
37. On 19 July 1999 council met and passed the following resolution (“the second resolution”):-
1. That Council resolves a public hearing in accordance with section 68 of the Environmental Planning and Assessment Act, 1979 is not required as requested by Geolink, as the issues raised are not significant and have been addressed by Council.
2. That Council, pursuant to section 68 of the Environmental Planning and Assessment Act, 1979, resolve to permit the draft Byron Local Environmental Plan 1988 (Amendment No 75) and amend the Byron Local Environmental Plan accordingly.
3. That Council, pursuant to section 69 of the Environmental Planning and Assessment Act, 1979, request the Minister for Urban Affairs and Planning to make this Byron Local Environmental Plan 1988 (Amendment No 75).
4. That Council write to JL Bennette, rejecting in the strongest possible terms allegations of corruption made in his submission.
5. That Council write to the landowners reminding them that their development was not approved as the first stage of any larger development as previously claimed.
6. That the Director of Environmental Planning prepare a report on the merits or otherwise of further amending or deleting clause 42.
38. The applicants submit that the second resolution is null and void on the ground of Wednesbury unreasonableness and rely upon the same particulars as provided for the first two challenges.
39. It has been determined that council possessed sufficient knowledge to adopt the initial resolution which began the statutory process of the making of Amendment 75. The second resolution was adopted as the culmination of that part of the process which required council to publicly exhibit a draft local environmental plan (s 66) and to undertake public and inter-governmental consultation (s 62, s 63, s 64, s 66, s 67). Mr Kanaley’s report to council’s policy and planning committee dated 22 June 1999 provides the details of council’s implementation of such steps. In adopting the second resolution council possessed the requisite knowledge and understanding of the second resolution resulting from the process prescribed by Pt 3 Div 4 of the Act. Having satisfied its statutory obligations council acted reasonably in adopting the second resolution: contrast Parramatta City Council & Anor v Hale & Ors at 335; The City of Parramatta v Pestell at 315.
Fifth challenge: alleged denial of natural justice
40. The applicants also submit that the council failed to provide the applicants with a right to be heard in the making of Amendment 75 and thereby denied natural justice to the applicants. The first applicant claims that it was not made aware of the existence of a vegetation report prepared by Mr David Milledge in November 1998 which identified environmental constraints on the land, nor given an opportunity to make submissions in relation to a report that the Everglades land was within a flood zone and that it contained acid sulfate soils. Additionally the first applicant claims it was not notified by council of the council meeting held on 19 July 1999 when Amendment 75 was adopted by council.
41. The second applicant, Mr Bennette submits that he had been erroneously informed by council prior to the making of the second resolution that the amendments to the LEP by Amendment 75 would not affect his land. Mr Bennette says that he would have made a very different submission had the true facts been known to him.
a) Statutory obligation of council
42. Section 62(c) of the Act requires a council, in the preparation of a draft local environmental plan to consult with such persons as the council determines. Such obligation has been held to impose a mandatory duty upon a council: see Leichhardt Municipal Council v Minister for Planning & Director of Planning (1992) 78 LGERA (CA) 306 at 336-338, 340; see authorities referred to in John Brown Lenton & Co Pty Limited v Minister for Urban Affairs Planning and Ors [1999] NSWLEC 213, unreported; Vanmeld Pty Limited v Fairfield City Council and Anor [1999] 46 NSWLR 78 at 90, 113-114, 115.
43. Vanmeld Pty Limited v Fairfield City Council is authority for the proposition that in making a local environmental plan a council is not subject to the common law duty to afford procedural fairness to any person who might be affected by such plan provided it observes the requirements of Pt 3 Div 4 of the Act. At 113 of the judgment Meagher JA states that Pt 3 Div 4 of the Act ‘ specifies exactly to what extent procedural fairness must be accorded to a ratepayer’ (see also Powell JA at 115). Accordingly the statutory process contained in Pt 3 Div 4 of the Act which includes public exhibition, consultation and the receipt of submissions, modifies the common law requirement of procedural fairness in the making of a local environmental plan: see also Brooks v Minister for Planning and Environment (1988) 68 LGRA 91 at 100; ColesSupermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 359.
44. The Court follows the principles of construction of Pt 3 Div 4 of the Act as established in Vanmeld Pty Limited v Fairfield City Council at 113, 115; Brooks v Minister for Planning and Environment at 100; ColesSupermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning at 359. Accordingly the question for consideration is whether consultation as required by the provisions of Pt 3 Div 4 of the Act took place between the council and Everglades.
b) The Everglades Land
45. Council wrote to Mr Greene as principal of Everglades on 13 November 1998 advising of council’s resolution of 22 September 1998 to rezone his land. Mr Greene thereupon instructed his solicitors Messrs Halliday and Stainlay and on 30 November 1998 they wrote to council raising various issues and requesting a copy of any draft amendment. Mr Kanaley promptly responded on 8 December 1998 and provided a copy of the letter he had sent to Mr Greene and an explanatory diagram of the local environmental plan making process.
46. On 7 April 1999 council again wrote to Mr Greene advising that it was writing ‘to consult with you on the above mentioned draft plan prior to its public exhibition’ . It enclosed a copy of Amendment 75 and accompanying map together with a copy of the advertisement. The letter specifically requested written comments and invited Mr Greene to contact the council if further information was required. In response Geolink, a firm retained by Everglades provided a submission to council by letter dated 14 May 1999. By letter dated 17 May 1999 the council acknowledged the receipt of the submission and Mr Greene was advised by council to consult the Byron Shire News for the date of the council meeting at which the resolution would be considered.
47. On 11 June 1999 another letter was forwarded by council to Mr Greene enclosing the report to council’s policy and planning committee which was to be considered by it on 22 June 1999. The letter also informed Mr Greene that the recommendation of such Committee would be placed before council’s ordinary meeting on 13 July 1999. Whilst Mr Greene has a recollection of receiving the letter but not the enclosure, it appears from his oral evidence that the enclosures were in fact received. The letter indicates that a copy was to be forwarded to Halliday & Stainlay although their files do not reveal that such letter was received.
48. Although Amendment 75 was to be considered on 13 July 1999, other business occupied the entire session and accordingly this item of the agenda was, with other matters adjourned to the next meeting of council. Subsequently council determined to hold a special meeting to deal with the outstanding matters. Mr Greene was not notified on or after 13 July 1999 that the council had postponed consideration of Amendment 75 nor of the adjourned hearing on 19 July 1999. However on 19 July 1999 Mr Bennette became aware of the adjourned meeting by observing a notice displayed at a Shire library. He informed Mr Greene during that day that the council proposed to deal with the rezoning of the Everglades land that evening. The transcript of Mr Bennette’s cross examination records the information that Mr Bennette provided to Mr Greene as follows:-
Mr Greene chose not to attend the meeting and was informed by letter dated 22 July 1999 of council’s second resolution.
Q. Did you tell him what you had seen when you’d been to the library as to the nature of the business that was on the agenda for that night?
A. Yes I did.
Q. What did you say to him?
A. I told him that there was a matter that related to the zoning of his land that it may be of concern to the both of us.
49. Whilst council did not notify Mr Greene of the adjourned meeting of 19 July 1999, such circumstance does not amount to a failure by council to consult. Mr Greene had been repeatedly informed by council that it was proceeding with Amendment 75. At no stage despite the several specific invitations (13 November 1998, 7 April 1999, 17 May 1999 and 11 June 1999) given by council to Mr Greene did he or any person on behalf of Everglades request a meeting or seek further information. Additionally, there is no evidence that Mr Greene or any representative of Everglades attended the council meeting of 13 July 1999 when the resolution to adopt Amendment 75 was to be considered.
50. Correspondence can constitute consultation: Leichhardt Municipal Council v Minister for Planning and Planning and Director of Planning at 337, and council has clearly identified to Mr Greene the nature of changes proposed by Amendment 75 and invited discussion. In Rosemount Estates Pty Ltd v Minister For Urban Affairs and Planning (1986) 90 LGERA 1 Stein J determined that certain letters constituted adequate consultation. His Honour at 29 stated:
In my opinion, the letters of consultation adequately and with reasonable exactitude describe the ‘concept or idea’ which was the subject of the draft policy.
- His Honour’s conclusion was adopted by the New South Wales Court of Appeal in Minister For Urban Affairs and Planning v Rosemount Estates Pty Ltd v (1996) 91 LGERA 31 at 77 per Cole JA.
51. Council furnished to Mr Greene such material as it was obliged to pursuant to Pt 3 Div 4 of the Act. No statutory duty arises requiring council to make available to Mr Greene every document held by it relating to the subject land as part of the consultation process. The council has satisfied its duty to consult pursuant to Pt 3 Div 4 of the Act. Accordingly there has been no denial of natural justice.
c) Mr Bennette’s land
52. On 15 April 1999 Mrs Bennette telephoned council to inquire whether Amendment 75 would affect the land owned by the second applicant. Ms Walker of council provided information that such lands were not affected. A letter was written on the same day to Ms Walker by Mr Bennette wherein he sought to confirm the salient facts of the conversation between Ms Walker and Mrs Bennette. By letter dated 27 April 1999 Ms Walker responded confirming that Mr Bennette’s land, being zoned 2(a) residential under the LEP was not affected by Amendment 75. On 7 May 1999 Mr Bennette provided a submission to council in which he objected to Amendment 75. On 12 May 1999 he provided a second submission concerning the proposal for a zone to be created by amendment to cl 42 of the LEP by Amendment 75, being an area in which development could not take place without council approval (hereafter referred to as a “buffer zone”).
53. Contrary to the detailed submission of council, the Court is satisfied that upon a proper construction of cl 42(1) of the LEP Mr Bennette’s land would be affected by Amendment 75. The relevant subparagraphs of cl 42(1) provide:-
42. (1) this clause applies to land which is-
(a) within 20 metres of a boundary between land within Zone No. 2(a), 2(t), 2(v) or 3(a) and land within Zone No 4(a), 5(a), 5(b) or 7(f2);
(b) within 100 metres of a boundary between any two zones not included in paragraph (a) other than Zones Nos. 7(a), 7(f1), 7(k) and 7(j); ins Amd.1 14/7/89.
(c) within 20 metres of a boundary between a zone referred to in paragraph (a) and any zone referred to in paragraph (b);
(d) not relevant
(2) Subject to subclauses (3) and (4), development may be carried out with the consent of the council, on land to which this clause applies for any purpose for which development may be carried out in the adjoining zone on the other side of the boundary.
- Amendment 75 would amend cl 42 (1)(b) by the insertion of ‘7(b)’ after the word ‘7(a)’.
54. Mr Bennette’s land is zoned 2(a) and under the existing LEP adjoins part of the Everglades land which is currently zoned 2(t). Following the implementation of Amendment 75, Mr Bennette’s land would adjoin that part of the Everglades land zoned 7(b).
55. The point of contention arises concerning the interpretation of sub-clause 42(1)(b) and 42(1)(c). The applicability of each sub-clause to the relevant zones can be found by distinguishing between the use of the words ‘ referred to’ and ‘ included in ’. In Gibson v Skibs A/S Marina and Orkla Grobe A/B and Smith Coggins, Ltd. [1966] 2 All ER 476 Cantley J observed at 478:-
One would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning.
56. Clause 42(1)(c) as amended by Amendment 75 would operate to affect Mr Bennette’s land. His land is zoned 2(a) which is ‘ referred to in paragraph (a) ’ and the adjoining land (following the amendment) would be zoned 7(b) which is also ‘ referred to in paragraph (b) ’. As a consequence a 20 m wide buffer zone between land in zone 7(b) and land in the 2(a) zone would be created. Such buffer would not prevent development. Rather, pursuant to cl 42(3) of the LEP it would require Mr Bennette to apply for development approval for the carrying out of development on land within the buffer zone.
57. In the making of Amendment 75 council was required to afford procedural fairness to landowners affected by such Amendment by adopting the measures provided in Part 3 of the Act. Such procedures include the opportunity to make submissions pursuant s 67 of the Act. Mr Bennette claims that he was deprived of the opportunity to make such submissions and that he would have made very different submissions had he been correctly advised by council of the affect of cl 42. However Mr Bennette admitted in cross-examination that he received legal advice from his solicitor which was contrary to that provided by Ms Walker. With this knowledge he made his second submission to council on 12 May 1999. His understanding of the operation of cl 42 following his solicitor’s advice is recorded in the transcript as follows:-
Q. So it’s trying to show is it you were concerned that within your - in any development on your land you would be required to set back from the common boundary by 20 metres and not do any development up to the boundary, was that a concern?
A. That is my understanding.
It is apparent that Mr Bennette placed no reliance on the information provided by Ms Walker. Mr Bennette’s second submission was made to council in the belief that the advice provided by council was erroneous. In view of the facts, Mr Bennette’s complaint that the misinformation of council subverted the submissions process and thereby denied him procedural fairness cannot be sustained.
Sixth challenge: alleged non compliance with s 68(4) of the Act
58. The applicants submit that the council, when reporting on 29 July 1999 to the North Coast Regional Office of DUAP pursuant to the provisions of s 68(4) of the Act, failed to draw the Minister’s attention to a non-compliance with s 68(4)(d)(i) of the Act which requires a council to submit to the Secretary (not Minister) of DUAP:-
(d) a statement:
(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with;
Annexed to the report of 29 July 1999 (“the report”) was a document prepared by Mr Kanaley for council’s policy and planning committee meeting of the 22 June 1999. Such document (“the annexed document”) contains detailed statements in relation to council’s compliance with s 66 and s 67 of the Act. As to the requirements of s 68 referable to public hearing, the annexed document refers to the fact that the Geolink submission made on behalf of Everglades which called for council to hold a public hearing did not raise issues of significance and that a public hearing pursuant to s 68 was not required. Also contained in the annexed document are extracts of the submissions in relation to Amendment 75 received by council pursuant to s 67 of the Act. Lastly the report itself refers to the exhibition of Amendment 75 together with the development consent (granted by the Court) and a map referable thereto. It follows that there is no substance to the submission that council failed to provide a statement pursuant to s 68(4)(d)(i) of the Act.
59. The applicants also claim that the report did not inform the Secretary of DUAP of council’s consideration of cl 29 of the North Coast Regional Environmental Plan (“the REP”) as required by s 68(4)(d)(ii) of the Act and the inconsistency of Amendment 75 with both cl 29 of the REP and Direction S 26 as required by s 68(4)(d)(iii).
60. Clause 29 of the REP provides that a draft local environmental plan should inter alia:-
(b) not alter or remove existing environmental protection, scenic protection or escarpment preservation zonings or controls within them, without undertaking a detailed analysis to determine whether there will be adverse environmental effects resulting form such action;
61. Direction S 26 requires council in the making of a local environmental plan to give effect to the requirements of the Coastal Policy and to prepare an environmental study where a draft local environmental plan proposes to alter, create or remove existing zonings .
62. In the report council advised that:
A Local Environmental study has not been prepared as it was not deemed necessary because the draft plan implements the intent of the Coastal Policy
63. The annexed document drew attention to the requirement of cl 29 of the REP and of Direction S 26 and clearly identified the inconsistency between such instruments and Amendment 75. Such document also noted that DUAP had not required the council to undertake an environmental study in relation to Amendment 75. Accordingly the council has satisfied the requirements of s 68(4)(d)(ii) and s 68(4)(d)(iii) of the Act.
Seventh challenge: inconsistency with Direction S 26
64. The applicants submit that the council failed to conduct an environmental study pursuant to s 117 Direction S 26, and that the process of making Amendment 75 was thereby flawed.
65. In a letter to DUAP dated 12 October 1998 council stated that the intent of Amendment 75; was to “ ensure the protection of high coastal conservation value coastal lands ” and that therefore an environmental study was unnecessary. DUAP responded by letter dated 26 October 1998 and expressly confirmed that it was not necessary for council to undertaken an environmental study in relation to Amendment 75. In the report prepared by council pursuant to s 68(4) of the Act council again informed DUAP that it had not undertaken an environmental study in relation to Amendment 75.
66. The principle of statutory interpretation formulated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 establishes that non-compliance with a statutory requirement does not necessarily result in the invalidity of the relevant statutory process. For the reasons considered by this Court in Belongil Progress Association Inc v Byron Shire Council & Anor [1999] NSWLEC 271 unreported the failure to provide an environmental study contrary to a Direction made pursuant to s 117 does not necessarily lead to the invalidity of a proposed local environmental plan. The Act specifically contemplates that a draft local environmental plan may be inconsistent with a Direction (see s 69(a) and s 69(b) of the Act). Provided the report to the Minister pursuant to s 69 of the Act draws to the Minister’s attention any inconsistency between a Direction and a draft local environmental plan, such plan will not necessarily be invalid. In relation to Amendment 75 it will be a matter for the Minister to determine whether such plan may proceed to gazettal without an environmental study.
Final challenge: alleged non compliance with s 69 of the Act
67. The applicants submit that the draft report prepared by DUAP for the Minister pursuant to s 69 of the Act fails to comply with s 69(a), s 69(b), s 69(c) and s 69(d) of the Act. The report that has not been forwarded to the Minister. As a result of the matters raised in these proceedings such report may be changed into an entirely different document. This challenge is premature and in these circumstances the Court declines to make any findings in relation to this challenge.
Orders
68. The Court makes the following orders:-
1. The application be dismissed.
2. Costs reserved for determination upon application by any party.
3. The exhibits be returned.
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