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

No judgment structure available for this case.

Land and Environment Court

of New South Wales

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

PARTIES:
APPLICANT:
Calardu Penrith Pty Ltd
FIRST RESPONDENT:
Penrith City Council
SECOND RESPONDENT:
Pipven Pty Ltd

FILE NUMBER(S): 40913 of 2009

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- whether council development consent invalid - whether council acted ultra vires because consent power was vested in a regional planning panel by reason of a jurisdictional fact that the capital investment value was more than $10 million - whether council failed to take into account objector's submission as to economic impact of the development - whether council failed to take into account impact of the development upon a shared parking arrangment that was the subject of its own earlier development consents as modified - whether council formed the opinion required by the definition of "bulky goods" in a local environmental plan as a pre-condition of development consent - whether council's decision was infected by apprehended bias - whether council failed to accord procedural fairness to an objector

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Law Enforcement (Controlled Operations) Act 1997
Local Government Act 1919
Penrith Development Control Plan 2006
Penrith Local Environmental Plan 1996 (Industrial Land)
Penrith Local Environmental Plan No 201 (Rural Lands)
State Environmental Planning Policy (Major Developments) 2005
State Environmental Planning Policy No 34 – Major Employment-Generating Industrial Development

CASES CITED: Alumino Australia Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1995) 88 LGERA 388
Anderson v Director-General Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, 166 FCR 54
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Barrick Australia Ltd v Williams [2009] NSWCA 275, 168 LGERA 43
Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1
Casa v City of Ryde Council [2009] NSWLEC 212
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401, 135 LGERA 257
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dowe and Gedeon v Commissioner of the New South Wales Crime Commission [2007] NSWCA 296
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Enfield City Corporation v Development Assessment Commission [2000] HCA 5, 199 CLR 135
Gedeon v Commissioner of the New South Wales Crimes Commission [2008] HCA 43, 236 CLR 120
Harvey and Tubbo v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165, 160 LGERA 50
Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185
Hot Holdings Pty Ltd v Creasy [2002] HCA 51, 210 CLR 438
Kioa v West (1985) 159 CLR 550
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207
Livesey v New South Wales Bar Association (1983) 151 CLR 288
McGovern v Ku-ring-gai Council [2009] HCATrans 48.
McGovern v Ku-ring-gai Council [2008] NSWCA 209, 72 NSWLR 504
Minister for Local Government v South Sydney City Council [2002] NSWCA 288, 55 NSWLR 381
Sun Newspapers Ltd v Federal Commissioner of Taxation (1938) 61 CLR 337
Sutherland Shire Council v Finch [1970] HCA 49, 123 CLR 657
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Williams v Minister for Planning [2009] NSWLEC 5, 164 LGERA 204
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707

DATES OF HEARING: 17-18 February 2010
9-10 March 2010

DATE OF JUDGMENT:
1 April 2010

LEGAL REPRESENTATIVES: APPLICANT:
Mr A Galasso SC with Mr M Wright (barrister)
SOLICITORS:
Mallesons Stephen Jaques

FIRST RESPONDENT:
Mr J Ayling SC
SOLICITORS:
Sparke Helmore
SECOND RESPONDENT:
Mr J Griffiths SC with Ms M Allars (barrister) and Mr A Stafford (barrister)
SOLICITORS:
Norton Rose

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

1 April 2010

40913 of 2009

CALARDU PENRITH PTY LIMITED v PENRITH CITY COUNCIL & ANOR

JUDGMENT

CONTENTS

Paragraphs

Introduction 1-3

Background 4-27

Ultra Vires 28-94

Economic Impact 95-115

Shared Parking Arrangement 116-124

Bulky Goods Opinion 125-135

Apprehended Bias 136-161

Procedural Fairness 162-181

Conclusion 182

INTRODUCTION
1 HIS HONOUR:

The applicant, Calardu Penrith Pty Ltd (Calardu), challenges the validity of a development consent granted on 9 November 2009 by the first respondent, Penrith City Council, to development application DA 09/0746 lodged by the second respondent, Pipven Pty Ltd (Pipven), for “alterations and additions to existing Bulky Goods Retail Centre” on land owned by Pipven at 13-23 Patty’s Place, Jamisontown, being Lots 10 and 11 in DP 1046110 (Pipven Land).

2 Calardu presses the following grounds of invalidity:

(a) the council acted ultra vires in determining the development application because under clauses 13B and 13F of State Environmental Planning Policy (Major Development) 2005 ( Major Development SEPP ) power to do so was vested solely in a regional planning panel by reason of the capital investment value of the development being more than $10 million;
(b) the council failed to take into account Calardu’s submission as to the economic impact of the development, as required by s 79C(1)(d) of the Environmental Planning and Assessment Act 1979 (EPA Act);

(c) the council failed to take into account the impact of the development upon the shared parking arrangement that was the subject of its own earlier development consents as modified, as required by s 79C(1)(b) of the EPA Act;

(d) shops trading principally in bulky goods were permissible with development consent under the Penrith Local Environmental Plan 1996 (Industrial Land) if the council formed the opinion required by paragraph (b) of the definition of “bulky goods” therein, but the council did not form that opinion;

(e) the council’s decision was infected by apprehended bias;

(f) the council failed to accord Calardu procedural fairness.

3 I do not accept any of the grounds and propose to dismiss Calardu’s summons.

BACKGROUND

4 The Pipven Land has an area of approximately 7 hectares. The bulky goods retail development thereon is known as the Penrith SupaCenta (SupaCenta) and has an area of approximately 27,561m².

5 Calardu owns the adjacent land at Mulgoa Road, Penrith, being Lots 1, 2, 4 and 5 in Strata Plan 72448 (Harvey Norman Land). It is generally to the south and south-east of the Pipven Land and has an area of approximately 7.3 hectares. On the Harvey Norman Land are Harvey Norman, Domayne and Bunnings stores which, together with other businesses and related car parking, operate as the Penrith Homemakers Centre or the Harvey Norman Homemakers Centre. The Harvey Norman Homemakers Centre has an area of approximately 34,156m².

6 The SupaCenta and the Harvey Norman Homemakers Centre together make up the Penrith Regional Bulky goods Centre, one of the largest bulky goods centres in greater Sydney.

7 The Pipven Land and the Harvey Norman Land share a common boundary and common vehicular access via Wolseley Road and Gibbes Street, Jamisontown.

Development Consents 1998-2002

8 On 14 December 1998 the council granted development consent to erect the Harvey Norman Homemaker Centre on the Harvey Norman Land.

9 On 2 July 2002 the council granted development consent for the construction of the Penrith Mega Centa (now known as the SupaCenta) on the Pipven Land.

10 In December 2001, concurrent applications under s 96 of the EPA Act were made to modify the Harvey Norman Homemaker Centre and the SupaCenta. An effect of the concurrent modification applications was to create an integrated car parking area of 825 at grade car parking spaces (consisting of approximately 340 car parking spaces in front of the SupaCenta and 485 car parking spaces on the adjoining Harvey Norman Homemaker Centre car park) and a shared roundabout, built astride the common boundary, for improved heavy vehicle circulation for the benefit of each of the Harvey Norman Homemaker Centre and the SupaCenta.

11 In February 2001 the council approved the concurrent modification applications. The Harvey Norman Homemaker Centre and the SupaCenta were constructed with the following common elements:

(a) integrated car parks in the centre of the area made up by the two centres; and
(b) heavy vehicle access to the Harvey Norman Homemaker Centre via a roundabout constructed across the common boundary between the two centres.

12 Located generally to the west of the existing SupaCenta is an under-utilised basement parking area.

13 In the period from 2001 until 2009, both centres operated with these common arrangements with the effect that they operated in an integrated fashion in terms of car parking and vehicular access.

14 Part of the Pipven Land (namely, Lot 10 in DP 1046110) and the Harvey Norman Land are zoned 4(b) Special Industry under the Penrith Local Environmental Plan 1996 (Industrial Land). The remaining part of the Pipven Land is zoned Rural 1(a) under the Penrith Local Environmental Plan No 201 (Rural Lands).

Pipven’s 2008 Development Consent

15 On 7 November 2007 development application DA 07/1418 was lodged with the council for redevelopment of the Pipven Land. It sought approval (among other things) for an increase in the retail floor space for the SupaCenta of approximately 27,000m².

16 Calardu has alleged that it did not receive notification of this development application. That is not an issue in these proceedings.

17 On or about 16 July 2008 the council granted consent to this development application under delegated authority (2008 consent). The development for which consent was granted was described by the council’s delegate as a “two staged redevelopment of existing bulky goods retail centre”.

18 On or about 1 June 2009 a third party certifier approved an application made on Pipven’s behalf for a construction certificate.

19 In or about May 2009 Pipven and its builder, Broxtan Pty Ltd, commenced the development the subject of the 2008 consent by demolishing and removing that part of the existing roundabout which had been constructed across the boundary of the Pipven Land and the Harvey Norman Land, carrying out site works including erecting ancillary structures such as fences and gates enclosing the area of the proposed work, pouring a concrete slab on the eastern side of the existing building at the Supacenta, and installing drainage and plumbing.

20 As a result of the carrying out of these works, approximately 269 car parking spaces were removed from use and the shared car parking arrangement was dismantled. These spaces were on the SupaCenta site, but were spaces utilised as part of the integrated car park between the two centres.

21 Calardu alleges that it did not become aware of the grant of the 2008 consent until that work commenced in or about May of 2009. Again, that is not an issue in these proceedings.

22 On or about 25 June 2009 Calardu commenced proceedings in this Court (No 40418 of 2009) challenging the validity of the 2008 consent and the construction certificate approval and seeking orders for the demolition and removal of all work then carried out in purported reliance thereon.

23 On 24 July 2009 I granted an adjournment of those proceedings pursuant to s 124(3) of the EPA Act pending determination of a proposed further development application, and vacated the hearing dates of 10-14 August 2009 upon undertakings from Pipven: Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 at [19]. Relevantly, Pipven undertook to surrender the 2008 consent upon the final determination by grant of consent to the proposed further development application.

Pipven’s 2009 Development Consent

24 On 5 August 2009 Pipven lodged development application DA 09/0746 with the council. It proposed:

(a) a single storey extension to the SupaCenta of approximately 6,468m ² increasing the total gross floor area to approximately 34,029m ² ;
(b) the division of the extension into ten new tenancies (separated by partitions and divisions) and the creation of mall space;
(c) a nominal increase in the total available parking for the SupaCenta from 695 spaces to 750 spaces (the development application is for an additional 6,468m ² with a reduction of 250 car parking spaces from that approved under the 2001 consent for the Pipven Land);
(d) re-arrangement of internal access including service access;
(e) associated signage and landscaping.

25 The accompanying Statement of Environmental Effects noted that:

“The general use of the proposed extension will be for bulky goods retailing and ancillary purposes. Specific uses will be subject to separate applications if and when required.”

26 On 9 November 2009 the council consented to DA 09/0746: “Alterations and additions to existing Bulky Goods Retail Centre” (2009 consent). The notice of determination stated that the 2009 consent would commence to operate on 13 November 2009.

Surrender of Pipven’s 2008 Development Consent

27 On or about 7 December 2009, the 2008 consent was surrendered by instrument of surrender, pursuant to a condition of the 2009 consent and cl 97 of the Environmental Planning and Assessment Regulation 2000.

28 The first ground on which Calardu challenges the validity of the 2009 consent is expressed in its summons as follows:

ultra vires

29 This ground reflects one of the objections to the 2009 development application lodged on Calardu’s behalf with the council that the development had a capital investment value in excess of $10 million and therefore, under the Major Development SEPP, the consent authority was the Sydney West Joint Planning Panel.

30 Section 80(1) of the EPA Act vests in a council jurisdiction to determine a development application. Section 23G of the EPA Act provides for joint regional planning panels (regional panels):

“ 23G Joint regional planning panels

31 The Minister is empowered to constitute a joint regional planning panel for part of the state: s 23G(1) EPA Act. Pursuant to s 23G(1), the Minister constituted the relevant regional panel, the Sydney West Joint Planning Panel.

32 The functions of a regional panel include any of the council’s functions as a consent authority that are conferred upon it by an environmental planning instrument, and the regional panel must exercise those functions to the exclusion of the applicable council: s 23G(2)(a) and (5B) EPA Act. Part 3 of the Major Development SEPP (an environmental planning instrument) deals with regional development and confers on a regional panel certain of the council’s functions as a consent authority, including the function of determination of development applications for developments to which Part 3 applies: cl 13F(1)(a). Developments to which Part 3 applies include “development that has a capital investment value of more than $10 million”: cl 13B(1). “Capital Investment Value” is defined non-exhaustively in cl 3(2)(a).

33 Clause 13B of the Major Development SEPP provides:

“ 13B General development to which Part applies

development that has

a

capital investment value of more than $10 million

(i) affordable housing, air transport facilities, child care centres, community facilities, correctional centres, educational establishments, electricity generating works, electricity transmission or distribution networks, emergency services facilities, health services facilities, group homes, places of public worship, port facilities, public administration buildings, public ferry wharves, rail infrastructure facilities, research stations, road infrastructure facilities, roads, sewerage systems, telecommunications facilities, waste or resource management facilities, water supply systems, wharf or boating facilities,

34 Clause 13F provides:

“13F Council consent functions to be exercised by regional panels

A regional panel for a part of the State may exercise the following consent authority functions of the council

the determination of development applications

(3) The council remains the consent authority for development to which this Part applies, subject to the exercise by regional panels of functions conferred on them by this clause.”

35 The expression “capital investment value” in cl 13B is defined non-exhaustively in cl 3(2)(a) as follows:

“ 3 Definitions and key concepts

A New Tax System (Goods and Services Tax) Act

36 It can be seen from cl 13F(2) that when a development has a capital investment value of more than $10 million, the council retains some functions ancillary to the determination of the development application, such as receipt and assessment.

37 Calardu contends and the respondents dispute that:

(a) it is a jurisdictional fact for the Court to determine, on the evidence before it, whether the development had a “capital investment value of more than $10 million” as stated in cl 13B(1)(a);
(b) on the evidence before the Court, the development had a capital investment value of more than $10 million;
(c) therefore, under cl 13F(1)(a) only the regional panel had power to determine the 2009 development application and the council acted ultra vires in purporting to determine it.

Jurisdictional Fact

38 The leading cases on jurisdictional fact include:

Colonial Bank of Australasia v Willan

Gedeon v Commissioner of the New South Wales Crimes Commission

Dowe and Gedeon v Commissioner of the New South Wales Crime Commission

Enfield City Corporation v Development Assessment Commission

Australian Heritage Commission v Mount Isa Mines Ltd

Sutherland Shire Council v Finch

Timbarra Protection Coalition Inc v Ross Mining

Woolworths Ltd v Pallas Newco Pty Ltd

Barrick Australia Ltd v Williams

Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources

39 The concept of jurisdictional fact as explained in these authorities may be analysed as follows (refining a little my analysis in Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 at [102], quoted in Casa v City of Ryde Council [2009] NSWLEC 212 at [62]):

Gedeon

Enfield

Timbarra

Dowe

Timbarra

Colonial Bank

Timbarra

Woolworths

Timbarra

Woolworths

Anvil Hill

Timbarra

Barrick

Australian Heritage Commission

Timbarra

Enfield

Sutherland Shire Council

Woolworths

Anvil Hill

Barrick

Sutherland Shire Council

Timbarra

Woolworths

Enfield

Woolworths

Timbarra

Woolworths

40 The present case is unusual in that it concerns the question of which of two administrative bodies (the council or a regional panel) had a particular statutory function. The parties were unable to refer me to an equivalent case.

41 The respondents submit that the question whether the capital investment value of the development was more than $10 million is not a jurisdictional fact for the following reasons:

(a) first, cl 13F(1) of the Major Development SEPP delimits the council’s jurisdiction and does not stipulate a criterion the satisfaction of which enlivens a regional panel’s powers: Gedeon ;
(b) secondly, the determination of capital investment value is part of the council’s function of assessing the development application under cl 13F(2)(d) and therefore the determination is in the exercise of a power rather than something preliminary to it;
(c) thirdly, the concept of capital investment value is complex, requiring an exercise of judgment;
(d) fourthly, having regard to the great inconvenience of a revolving door jurisdiction where conditions may increase or decrease the capital investment value of a development between receipt and determination of a development application, cl 13B(1)(a) should be construed as though the expression “development that has a capital investment value of more than $10 million” means “development that in the opinion of the council has a capital investment value of more than $10 million”. The council’s opinion then cannot be challenged except on the ground of Wednesbury unreasonableness.

42 I do not accept the respondents’ submission.

43 In my view, the respondents’ first point is incorrect. It is based on the distinction drawn in Gedeon between a criterion the satisfaction of which enlivens the exercise of a statutory power, which is a jurisdictional fact, and a delimitation on a statutory power, which is not a jurisdictional fact but a prohibition. Gedeon was a successful appeal from the NSW Court of Appeal’s decisions in Dowe and Gedeon. The Court of Appeal had to consider whether authorities to conduct a controlled operation granted under s 6(1) of the Law Enforcement (Controlled Operations) Act 1997 were invalid. The Act provided:

(a) may authorise a law enforcement officer for the law enforcement agency concerned to conduct the operation …

44 The Court of Appeal by majority held that the question whether conduct is likely to seriously endanger health or safety was not an objective jurisdictional fact which must be determined on the basis of evidence adduced before a court, but was a subjective matter for final determination by the chief executive officer: at [32] – [33] per Spigelman CJ (Handley AJA agreeing at [89]). They regarded s 7(1)(b) as “an emphatic instruction to the decision-maker” which did not amount to a jurisdictional fact other than in the sense of satisfaction of the chief executive officer: at [32]. Basten JA agreed that it was not a jurisdictional fact at [73], but dissented in the result. His Honour considered that the authorities to conduct a controlled operation could not properly have been granted because of the prohibition imposed by s 7(1)(b) and therefore were invalid: at [86].

45 The case went to the High Court which agreed with Basten JA and made a declaration that the authorities to conduct a controlled operation were invalid: Gedeon at [60]. The High Court held:

“[43] The expression ‘jurisdictional fact’... [g]enerally … is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

[44] The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 429-430:
‘The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.’

[45] An instance in the LECO Act is the requirement in s 6(1) that the chief executive officer first have considered an application made under s 5 for the authority to conduct a controlled operation. The text of these provisions is set out earlier in these reasons.

[46] Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently. The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer. There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in paras (a), (b) and (c). That is the force of the expression ‘must not be granted’ in s 7(1). It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6.

46 Gedeon is distinguishable. The statutory provision there was expressed as a prohibition delimiting executive power. Because the authorities were granted in breach of the prohibition, they were invalid. In the present case there is no expression of a prohibition delimiting the council’s power. Rather, the power to determine development applications is vested either in a council or in a regional planning panel according to (relevantly) the capital investment value of the development. If that value exceeds $10 million, the regional panel’s power to determine is enlivened.

47 Even if the respondents’ first point were correct, it is difficult to see how it assists the respondents because if the provision were to be construed as a delimitation on a council’s functions by way of a prohibition, then if the council granted the 2008 consent contrary to the prohibition, the consent would be invalid on the Gedeon reasoning.

48 As for the respondents’ second point, I disagree that determination of capital investment value is part of the council’s function of assessment of a development application under cl 13F(2)(d) and therefore that the determination is in the exercise of power rather than something preliminary to the exercise. In my opinion, the “assessment” of a development application means assessment of the merits of the application and is not concerned with determining the jurisdictional question whether the function of determination of the application is vested in a regional panel under cl 13F(1)(a) or in the council. That determination is both distinct from and extrinsic to the assessment process.

49 The respondents’ third point may be accepted as a relevant consideration but I do not regard it as particularly weighty in the present context. The complexity of the concept of capital investment value and the judgment for which it calls is no greater than that which is involved when this Court is called upon to determine the jurisdictional fact which is a condition precedent to the statutory requirement that a species impact statement must accompany a development application, namely, whether the development is, or is likely to, significantly affect threatened species: s 78A(8)(b) EPA Act. Notwithstanding, the Court of Appeal has classified that fact as jurisdictional: Timbarra. There will be room for differences of opinion as to the capital investment value but this does not mean that the matter was intended to be conclusively determined administratively rather than judicially: Sutherland Shire Council at 666.

50 As for the respondents’ fourth point, I cannot agree that cl 13B(1)(a) should be construed as though its requirement is for the formation of an opinion by the council that the development has a capital investment value of more than $10 million. In Sutherland Shire Council, a provision of the Local Government Act 1919 provided that the Minister could give a direction to a council to pay compensation to a servant whose services had been terminated if a report under the Act exists which is favourable to the servant. The provision read:

“In any case where the council decides to terminate the services of the servant notwithstanding that the report of the person holding the inquiry is substantially favourable to the servant, the Minister, on the application of the servant...may, after such inquiry as he deems sufficient, direct the council to pay to the servant as from the date of termination of his services compensation...”

51 The issue was whether it was for a court or the Minister to finally determine whether the report was "substantially favourable" to the employee. Gibbs J (with whom the other members of the court agreed) held that it was for the court, at 666:

“Before the Minister gives a direction, he must satisfy himself that this condition has been fulfilled and it is therefore true to say that the Minister is required to form an opinion as to whether the report is substantially favourable. However it does not follow that his opinion when formed is conclusive. The Minister must also form the opinion that the council has decided to terminate the services of the servant, and that the servant has made application within fourteen days, but he cannot acquire the power to give a direction by forming an erroneous opinion on those matters. The subsection does not state that the Minister may give a direction if in the opinion of the Minister the report is substantially favourable. No difficulty would have existed in framing the subsection to make the opinion of the Minister the governing consideration if that had been intended.”

52 His Honour noted the discretion of the Minister to make appropriate inquiries, but considered that neither the existence of the power to inquire nor the breadth of the discretion supported the view that the condition precedent imposed by the section had been satisfied where it could be established in a court that the Minister erroneously considered that the report was substantially favourable to the servant: at 666-667

53 Similarly, cl 13B(1)(a) does not state that Part 3 of the Major Development SEPP applies if in the opinion of the council the development has a capital investment value of more than $10 million. No difficulty would have existed in framing that provision to make the opinion of the council the governing consideration if that had been intended. The provision, read naturally, treats the question as an objective one: it refers to a development that has a capital investment value of more than $10 million, that is, more than $10 million in fact and not merely in the opinion of the council. Moreover, in contrast to the language of cl 13B(1)(a), other clauses of the Major Development SEPP do adopt the opinion of a decision-maker as the criterion. Clause 6(1) declares a project to be a project to which Part 3A of the EPA Act applies if it is a development that “in the opinion of the Minister” answers a listed description. Clause 6A says that “development that, in the opinion of the Minister is described in Schedule 5, is also declared to be a critical infrastructure project”. Similarly, see cl 9A(1). In further contrast, State Environmental Planning Policy No 34 - Major Employment-Generating Industrial Development (SEPP 34), which the Major Development SEPP replaced, made the Minister the consent authority if the development “in the opinion” of the Minister had a capital investment value of $20 million or more.

54 Finally, in the absence of clear words, it seems an unlikely construction that where an administrative function is vested in one administrative body if a specified value does not exceed $X but is otherwise vested in another administrative body, that the former (or either) administrative body should be the final arbiter of which of them has jurisdiction. Assume, for example, that a regional panel and a council both purported to determine a development application on the basis of their differing opinions as to the capital investment value of the development. In the absence of clear words, it is difficult to see why the opinion of one rather than the other should have been intended to be the criterion of jurisdiction. The more likely intention is that it is for the Court to determine objectively.

55 The provision of the earlier SEPP 34 to which I have referred was considered in Alumino Australia Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1995) 88 LGERA 388 where the Minister notified that he had the required opinion. In a merits appeal to this Court from a deemed refusal of the application, objectors argued that whilst that opinion was open to the Minister at the time that he formed it, the capital investment value had fallen further below $20 million at the time of the appeal and therefore the Minister ceased to be the consent authority and the Court had no jurisdiction to determine the appeal. The preliminary question before the Court was whether its jurisdiction to hear the appeal could be removed by a change to the development resulting in reduction of the capital investment value below $20 million, because the functions of the Minister no longer existed. Talbot J held that the formation of an opinion about the reduced capital investment value was disconnected from, and not at the heart of the subject matter of, the deemed refusal. The Court could not in the appeal perform a function of the Minister of revisiting the opinion on the capital investment value. Even if this conclusion were wrong, his Honour considered that once the Minister formed the requisite opinion, the Minister’s jurisdiction crystallised and remained good, whatever variations thereafter occurred in the calculation of the capital investment value. Once the Minister formed the opinion, he became the sole repository of the power to determine the development application, subject to the appeal to the Court. If the Minister subsequently formed the opinion that the capital investment value was less than $20 million, that could not be a relevant consideration in determination of the substantive development application. If a different construction were adopted, an applicant would be trapped in a continuous revolving door between two alternative consent authorities.

56 In my opinion, upon the proper construction of cl 13B(1), a capital investment value of a development that exceeds $10 million is a criterion the satisfaction of which enlivens the exercise of a regional panel’s function of determining the development application. Accordingly, it is a jurisdictional fact. If the criterion is satisfied, then the council’s determination of the 2008 consent was made without the necessary statutory authority.

Whether capital investment value of development exceeded $10 million

57 The question that then arises is whether, on the evidence now before the Court, the capital investment value of the development exceeded $10 million.

58 Under cl 13B(1)(a) the time as at which there should be a determination of whether the development has a capital investment value of more than $10 million, in my view, is when the development application is lodged. That is supported by the fact that cl 13B(1)(a) speaks in the present tense, indicating that the value is taken not to change. It is a sensible construction because it avoids a revolving door to jurisdiction which otherwise would arise if capital investment value could fluctuate between the time of lodgement and the time of determination. In the present case, the point is not of practical concern because there is no suggestion that there was any such fluctuation.

59 The estimates in evidence of the parties’ quantity surveyors as to the capital investment value of the development are as follows (excluding GST):

Mr Mee for Calardu	$12,891,159
Mr Boyd for Pipven	$ 7,769,331
Mr Woollam for the council	$ 7,810,155

60 Their estimates (or those of their firms) in generally lesser amounts were before the council when it granted the 2009 consent.

61 The two largest and most contentious items included in Mr Mee’s estimate, which together are essential to his conclusion that the capital investment value exceeded $10 million, were:

(a) works carried out pursuant to the earlier 2008 consent that was surrendered in the circumstances described at [22] – [27] above, which he valued at $1,645,489; and
(b) tenancy fit-out works that would be the subject of future development consents, which he valued at $1,316,045.

62 Mr Boyd and Mr Woollam did not include those two items in their estimates. Had they done so, their estimates would increase to over $10 million. The only evidence as to the quantum of those two items is the evidence of Mr Mee which I accept in that respect.

63 Inclusion or exclusion of those items depends upon the proper construction of cl 3(2)(a) of the Major Development SEPP, set out at [35] above.

64 The works completed pursuant to the 2008 consent were essential for the building proposed by the 2009 consent to be established and operate. No doubt these works would have been the subject of the same development application and consent except for the peculiar circumstances of the challenge to the validity of the 2008 consent at a time when some work had been carried out thereunder, and Pipven’s undertaking to surrender that consent if a fresh development consent were granted.

65 The description of the development in the 2009 development application stated that it was for “alterations and additions to the existing bulky goods retail site”. There followed a description of the building works which included reference to “a single storey ground floor extension (comprising 6,468m² GFA) of the existing bulky goods retail centre…on a partially constructed reinforced concrete slab”. That slab was constructed pursuant to the 2008 consent, which was subsequently surrendered as a condition of the 2009 consent. After describing the building works, the development application noted that:

“The general use of the proposed extension will be for bulky goods retailing and ancillary purposes. Specific uses will be subject to separate applications as and when required.”

66 A council officer’s report before the council when it granted the 2009 consent stated:

“The use of the proposed tenancies would be subject to separate assessment and approval for their respective use for the purposes of consistency of the ‘bulky goods’ definition. Notwithstanding, the proposed tenancies have been designed to ensure consistency with the land use with respect to the layout of each tenancy allowing sufficient area for large areas for handling, storage and display of goods.”

67 The expression “capital investment value” is not defined in any dictionary. It is employed in cll 245N and 275 of the Environmental Planning and Assessment Regulation 2000, in several other state environmental policies and in a Queensland statute to which it is unnecessary to refer.

68 Several things may be observed about the definition of “capital investment value” in cl 3(2)(a) of the Major Development SEPP (set out at [35] above):

69 The respondents submit that “capital investment value” as defined in cl 3(2)(a) means:

70 I do not accept the respondents’ second and third submissions. They require there to be read into the definition words that are not there. However, even if the definition were construed as referring to “costs necessary to establish and operate the development the subject of the development application”, in my view they would include the costs already incurred pursuant to the 2008 consent. That development and those works included the partially constructed reinforced concrete slab referred to in the development application. Those works were for the purpose of this particular development: an extension of the bulky goods warehouse. In my opinion, the cost of those works were “necessary to establish and operate the development” within the definition in cl 3(2). Accordingly, they should be included in the assessment of the quantum of capital investment value.

71 In my opinion, costs have to be of a capital nature in order to come within the definition. The presence of the word “capital” in the defined expression suggests that that is so, and is reinforced by the fact that the items listed in the second inclusion of the definition appear to be of a capital nature. Therefore I accept the respondents’ first submission.

72 The parties were unable to assist me with any authority directly on point as to whether tenancy fit-out costs are of a capital nature. They include in the present case items such as tenancy floor and wall finishes and suspended ceilings. General guidance is provided by the classic judgment of Dixon J in Sun Newspapers Ltd v Federal Commissioner of Taxation (1938) 61 CLR 337 at 359:

“The distinction between expenditure and outgoings on revenue account and on capital account corresponds with the distinction between the business entity, structure or organisation set up or established for the earning of profit and the process by which such an organization operates to obtain regular returns by means of regular outlay, the difference between the outlay and returns representing profit or loss.”

“There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment or periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment.”

73 Under these general principles, I consider that tenancy fit-out costs are of a capital nature.

74 However, in the present case, in my view, tenancy fit-out costs are not costs of the subject development and therefore they do not come within the definition. The subject development is for alterations and additions to the existing bulky goods retail centre. That development includes that which was done under the 2008 consent but stops short of any specific tenancy development use in the future. Those tenancy fit-out costs are not “costs necessary to establish and operate” the subject development. The tenancy fit-out costs are those that would be incurred for specific tenancy uses pursuant to future development consents. The 2009 development application stated that: “Specific uses will be subject to separate applications if and when required”. Tenancy fit-out costs may vary substantially according to the purpose for which a tenant may wish to put a particular tenancy. This reinforces the conclusion that the developments to which such costs relate are defined by reference to the development described in future development applications relating to particular tenancies and are not part of the subject development.

75 Calardu alternatively submits that the 2009 development application was a staged development application so far as concerns not only tenancy fit-outs but also works done under the 2008 consent and, therefore, cl 13G applies such that those costs must be included when calculating capital investment value. I do not accept the submission.

76 Clause 13G provides:

“ 13G Staged development functions

77 The expression “staged development application” is a term of art found in s 83B of the EPA Act, which provides:

“ 83B Staged development applications

78 Calardu proposes a construction of “staged development” in cl 13G of the Major Development SEPP which is unconfined by s 83B of the EPA Act. In my view, the proposed construction in untenable. As the Major Development SEPP is a subordinate legislative instrument, in the absence of a contrary definition cl 13B can only be referring to a s 83B staged development.

79 Section 83B(2) is fatal to Calardu’s contention because the proponent did not request the subject development application to be treated as a staged development application. It may well be, but it is unnecessary to decide, whether s 83B(1) is also fatal.

80 In my opinion, for these reasons tenancy fit-out costs should be excluded in calculating the capital investment value of the development.

81 I have held that the costs of the work carried out under the 2008 consent in the sum of $1,645,489 should be included in the capital investment value. This increases Mr Boyd’s assessment to $9,414,820 and Mr Woollam’s assessment to $9,455,644.

82 The exclusion of tenancy fit-out costs in the sum of $1,316,045 reduces Mr Mee’s assessment of capital investment value from $12,891,159 to $11,575,114. Mr Mee’s assessment should be reduced by a further $690,000 to $10,885,114 for the following items dealt with in the experts’ joint report, which received little or no attention in the parties’ submissions:

(a) Mr Mee included an amount of $115,000 described in the experts’ joint report as “DA consent conditions”. These works were not part of the development described in the development application. They were imposed by conditions of consent which required works not contemplated in the development described in the development application. In my opinion, they should be excluded;
(b) there is an item which Mr Mee included described in the expert’s joint report as “Section 73 headwork contribution” for $25,000. It appears that there is no evidence to support this amount and that it was dealt with under the 2008 consent when it was determined to be nil. In my view, it should be excluded;
(c) Mr Mee included finance costs of $550,000 that Mr Boyd and Mr Woollam did not. I do not accept that they are costs necessary to establish and operate the development nor that they are of a capital nature. They should be excluded.

83 A couple of other items of contention between the experts also received little or no attention in the parties’ submissions but it is unnecessary to decide them because they are insufficient to increase Mr Boyd’s or Mr Woollam’s estimate to in excess of $10 million or to reduce Mr Mee’s estimate to less than in excess of $10 million.

84 Since, after my adjustments, Mr Mee’s capital investment value assessment exceeds $10 million and Mr Boyd’s and Mr Woollam’s assessments do not exceed $10 million, it is necessary to consider which (if any) of their assessments the Court should adopt.

85 Mr Mee’s estimate of the capital investment value was based upon his assessment of fair and reasonable rates applied to his measured quantities.

86 Against the background of the design and construct contract between Pipven and its builder, Broxtan Pty Ltd, for the development the subject of the 2008 development consent in the sum of $7,699,939, Mr Boyd and Mr Woollam placed reliance on Broxtan’s October 2009 indicative estimate of $6,253,704 for the completion of the works, which took into account changes to the scope of works in the 2009 development application.

87 Originally, in August 2009, someone else in Mr Boyd’s firm wrote a letter to Pipven containing a forecast cost to complete the works of $6.2 million. That figure increased to $6,959,327 for the capital investment value in Mr Boyd’s letter to Pipven of 16 October 2009. That letter responded to Mr Mee’s estimate in a letter to Calardu of 2 October 2009. Copies of those three letters were provided to the council before it made its determination.

88 Mr Boyd explained in his letter that he had met with Pipven’s contractor, Broxtan, and reviewed the documentation accompanying the 2009 development application and the scope of the works amendment, and that Broxtan had indicated that the costs to carry out the works the subject of that application were in the order of $6,253,704. Mr Boyd did not rely entirely on Broxtan’s cost to complete estimate. He carried out a review process incorporating estimates prepared by his firm in relation to the previous development application, Broxtan’s accepted tender for the 2008 consent and Mr Mee’s estimate. After adding other development costs excluded by Broxtan and applying his own elemental rates to Broxtan’s quantities and substituting some estimates that he regarded as more accurate, he concluded that the capital investment value was $6,959,327. Ultimately, in the joint expert’s report in these proceedings, that figure evolved to $7,769,331.

89 In Mr Woollam’s report to the council of 9 October 2009, he estimated construction costs at $8,990,000. The main component of that estimate was the proposed retail extension with an area of 6,307m² to which he applied a rate of $1,200 per square metre to arrive at a total for that component of $7,568,400.

90 However, Mr Woollam in a letter of 4 November 2009 to the council, indicated that he had reduced his estimate. He wrote that he had attended a meeting on 30 October 2009 with Mr Boyd representing Pipven and that the aim of the meeting was to establish and clarify the current documentation available for the proposed work, the scope of the work, the cost estimates prepared by Pipven’s contractor, Broxtan, and the status of the existing contract with Broxtan so that a realistic “capital investment value” could be determined. Mr Woollam wrote that Broxtan had prepared a fully measured and fitted cost estimate which reflected their tender sum. He wrote that he proposed to use Broxtan’s indicative cost estimate of 15 October 2009 as a basis for calculating capital investment value, and that his previous estimate of 9 October 2009 “should be disregarded as the construction cost for the building component was based on a rate per square metre of building area. The scope of work is now better defined and a contractor’s contract sum exists and is supported by a measured cost estimate and full documentation. The contractor’s document is a far more accurate method of determining the cost of construction and should be used as the basis for calculating the Capital Investment Value”. Mr Woollam took Broxtan’s indicative cost to complete of $6,253,704 and added certain other costs to arrive at capital investment value of $7,216,741. In the joint experts’ report in these proceedings, that figure evolved to $7,810,155.

91 Mr Mee suggested hypothetical difficulties with using a contractor’s price, including that it might not make provision for all reasonable costs but he conceded that he did not know whether that was so in this case as he had not seen the builder’s documentation that the other quantity surveyors had seen.

92 In assessing costs “necessary to establish and operate the development” as required by the definition of “capital investment value”, it is realistic, in my view, to attach considerable weight to contractually agreed costs or similar if they are available and appear to be reliable. Here the earlier contractually agreed costs with Broxtan were available as well as Broxtan’s indicative estimate for completion of the works and varied works. The latter was consistent with the former and was reviewed by and accepted as reasonable, and formed the basis of the assessments, by the respondents’ quantity surveyors. In the circumstances, I prefer their assessments to Mr Mee’s assessment, subject to adding the cost of work completed under the 2008 consent to their assessments. It is unnecessary to express a preference as between Mr Boyd’s estimate and Mr Woollam’s estimate because in either case, the capital investment value of the development does not exceed $10 million.

93 Accordingly, in my opinion, the capital investment value did not exceed $10 million, or at least it has not been proved that it did. Therefore, it was the function of the council and not the regional planning panel to determine the 2009 development application.

94 For these reasons, I do not accept this ground of challenge.

95 The second ground on which Calardu challenges the validity of the development consent is expressed in its summons as follows:

“In purporting to grant the Consent the First Respondent failed to take into account the submission of the Applicant as to the economic impact of the proposed development.”

96 Consideration of the likely economic impacts of the proposed development in the locality and of submissions was mandatory under s 79C(1)(b) and (d) of the EPA Act:

“79C Evaluation

Matters for consideration—general

97 Carlardu submits that the council merely recorded the existence of Calardu’s submission on economic impact without any assessment or consideration of its content or nature and that this constituted failure to take into consideration the economic impacts. That is, the council only paid lip service to it.

98 I do not accept the submission.

99 When a challenge to a decision is made, the task of the Court is to determine whether “the challenger has discharged the onus of proving that the council failed to consider a matter of such significance that it justifies the Court’s intervention, taking care to ensure that the review proceedings do not become a review of the merits of the relevant decision”: Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401, 135 LGERA 257 at [35].

100 It was once conventional to say that consideration of mandatory, relevant matters had to be “proper, genuine and realistic” but that those epithets had to be applied cautiously lest they encourage a slide into impermissible merits review. However, the Court of Appeal has now said that it is preferable to avoid using that formula, or similar descriptive formulae, but that the relevant matter must be more than merely adverted to or given mere lip service: Anderson v Director-General Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 at [51] – [58]; Williams v Minister for Planning [2009] NSWLEC 5, 164 LGERA 204 at [41].

101 The development application was accompanied by a statement of environmental effects, which annexed an economic impact statement by Pipven’s consultants, Pitney Bowes.

102 BBC Consulting Planners on behalf of Calardu lodged an objection to the proposal in September 2009, accompanied by an economic impact assessment report by Carlardu’s consultants, MacroPlan Australia. One of the stated reasons for the objection was that “the Penrith Regional Bulky Goods Centre will incur significant economic losses from the extension of the centre”. Particulars were provided.

103 The council commissioned HillPDA to independently review Pitney Bowes’ economic impact statement, including assessment of the economic impact on the Harvey Norman Homemaker Centre.

104 HillPDA’s report of 29 September 2009 found that the impact on the Harvey Norman Homemaker Centre in the first year of opening could be slightly higher than that forecast by Pitney Bowes, but the scale of the impact was not unreasonable and was unlikely to be significant and the greatest impact, to the Harvey Norman store, was considered to be acceptable.

105 A supplementary statement of environmental effects prepared on behalf of Pipven by City Plan Services responded to the submissions that had been received, including Calardu’s submission.

106 A large report by council officers was before the council when it granted the 2009 consent. Calardu’s submission as to the economic impact on the Homemakers Centre was listed as an issue to be considered. The council report analysed the economic impact of the development in some detail, commencing as follows (at 2):

“…Key issues raised in objections of the proposal include:-

Traffic, Parking and Access;
Architectural Design;
Economic Impact;

The above key issues as well as others raised in the submissions have been addressed and a summary of the submissions and submission responses can be found as Attachment 1 [sic 11] to the Business Paper. This attachment is referred to throughout this report.

…

Council has engaged external consultants to undertake an Independent Peer Review of the subject Development Application with respect to the economic impact, traffic and parking and Council’s assessment process. HillPDA and AECOM were engaged respectively. The independent peer review for the economic and traffic aspects and assessment process of the proposal have been conducted with each consultancy concluding that the subject Development Application is satisfactory.

107 The council report noted (at 6) that an economic impact statement prepared by Pitney Bowes dated August 2009 accompanied the development application.

108 The council report included a section entitled “Economic Impact”, which quoted extensively from the reports of Pitney Bowes and HillPDA (at 32-34). This section concluded with the following comments by the council officer:

“Having regard to the comments made by HillPDA, the proposed development is considered to be satisfactory with respect to economic impact.

109 A section of the council report dealing with submissions made in relation to the development noted (at 35):

“Council had engaged external consultants to undertake an Independent Peer Review of the subject Development Application in respect to the economic impact, traffic, parking as well as a review of the planning assessment process. HillPDA and AECOM were engaged respectively. The independent peer review for the economic and traffic aspects of the proposal have been conducted with their comments discussed throughout this report.”

110 The council report listed many “key issues raised in the objections to the proposal”, including Calardu’s objection that: “It will have a significant economic impact on existing tenancies of Penrith Homemaker Centre and Supacenta”.

111 It was then stated that those “issues have been addressed in detail with comments also made by [Pipven]. This address is provided as Attachment 1 [sic 11] to the business paper. It is considered that the issues raised in respect of the proposal have been addressed and does not warrant refusal of the subject application”. Attachment 11 to the council report is a lengthy tabular summary of submissions which identifies each issue raised, Pipven’s comment on each issue and the council’s comment on each issue. Items 23, 26 and 28 in attachment 11 identified the economic impact issues raised by Calardu’s submission, Pipven’s comment and the council’s comment. The council’s comment in each case was:

“Council engaged the services of HillPDA to conduct an independent review of the Economic Impact Assessment report which accompanied the subject application. HillPDA raised no objection to the Economic Impact Assessment Report prepared by Pitney Bowes and concluded that the proposed could be supported.”

112 Calardu concedes that except for that council comment it would be difficult to conclude that there was failure to take into account a relevant consideration, but says that the comment demonstrates the council failed to take into account Calardu’s submission because council did not refer to it.

113 I disagree. The council report is not a statement of the council’s reasons for its decision. It would have been open to Calardu to have requested a statement of the council’s reasons using the processes of the Court, but it did not do so. The council report summarises the various submissions received including, relevantly, the submission put on behalf of Calardu.

114 Having regard to the material to which I have referred, in my opinion Calardu has not discharged its onus of proving that the council failed to take into consideration Calardu’s submission relating to the economic impact of the development.

115 Accordingly, I do not accept this ground of challenge.

116 The third ground on which Calardu challenges the validity of the development consent is expressed in its summons as follows:

Environmental Planning and Assessment Act

117 Calardu’s submission is expressed more simply that the council failed to take into account the impact of the development upon the integrated carparking arrangement that was the subject of its own consents, as modified.

118 That integrated car parking arrangement, pursuant to council’s earlier approval of concurrent modification applications, was explained at [10] -[11] above.

119 Once again, Calardu’s submission focuses heavily on the council officer’s report.

120 In my view, relevant matters summarised in the council report, including in attachment 11 thereto, provide a complete answer. The council report noted that under the earlier concurrent modifications, there was an expression of “car parking across the site boundary to maximise on-site parking” (at p 4). Attachment 11 lists each issue raised by the submissions received and next to each issue summarises Pipven’s comment and the council’s comment. Item 15 is “Shared parking between each centre is lost”. Item 19 is: “Fails to consider the implications of the development on the shared access and parking arrangements in place through the terms of the approval to the Supa Centre (DA 01/0231 as modified) and the Penrith Homemaker Centre (DA 986035 as modified)”. Item 20 is: “It is made on the false premise that the Supa Centre and the Penrith Homemaker Centre are separate and self-sufficient developments when in fact they include common and shared elements including parking and access arrangements”. In relation to each of those items, the council’s comment is:

“Historically, there have been no formal arrangements between the two sites by way of an easement for shared parking. Accordingly, no shared parking existed or would have been lost as a result of the proposed development. Notwithstanding, a number of pedestrian linkage points are proposed which will maintain access between both sites.”

121 Item 24 in attachment 11 to the council report includes Pipven’s comment that: “Thus in summary the proposed extensions to the SupaCenta would not result in adverse parking impacts on the adjacent Homemaker Centre, customers would continue to be able to park at either centre and visit the other, and improvements are proposed to the basement carpark to make it even more attractive to customers”.

122 Item 26 in attachment 11 to the council report summarises Pipven’s comment on Calardu’s objection, dealing specifically with centralised and shared carparking provisions. It includes the comment: “In all likelihood existing shared parking arrangements will continue after the completion of the proposed expansion. In any case, the CBHK analysis shows that the resultant changes would be immaterial to trading performance at worst, but most likely beneficial”.

123 In item 29 Pipven’s comment in response to material put forward by Calardu was summarised as follows: “The Traffix submission suggests that the proposed extensions to the SupaCenta would have the effect of creating a barrier between the two sites, in terms of the movement of cars and people, as well as the ability to rely on a centralised parking facility. This is not correct for the following reasons”. Then there is a summary of the reasons, which includes the following:

“Currently parking on both sites is provided in a number of discrete areas, eastern at grade (area E), western at grade (area F) and basement car parking (area G) on the Supa Centa site and eastern (area A), southern (area B), western (area C) and northern (area D) car parking on the Homemakers site. All of these areas are interconnected and will continue to be in the future. A plan showing the parking areas is shown in Figure 4. Thus to describe the two sites as having a centralised parking area is misleading. We note that parking on both sites has substantial spare capacity including area D, located on the Homemaker Centre site, adjacent to the proposed extensions. Further information on parking will be provided in our response to parking matters below.

Traffix suggest that the proposed extensions would restrict car access between the two sites. As noted above this is not the case as access between the two sites will continue to be provided via the existing roundabout on Wolseley Street. We note that the proposed extensions will result in improved pedestrian connectivity and this would reduce the potential for people to drive between the two sites.

124 In my opinion, when regard is had to the material that was placed before the council, this third ground must fail.

BULKY GOODS OPINION

125 The fourth ground on which Calardu challenges the validity of the development consent is that shops trading principally in bulky goods were permissible with development consent under the Penrith Local Environmental Plan1996 (Industrial Land) if the council formed the opinion required by paragraph (b) of the definition of “bulky goods” therein, but the council did not form that opinion.

126 The development consent was for the purposes of bulky goods retail.

127 The Land was relevantly zoned 4(b) Special Industry. In that zone development permissible with development consent included shops trading principally in bulky goods. Other shops were prohibited. Schedule 1 of the LEP defined “bulky goods” as follows:

“ bulky goods means large goods which are, in the opinion of the council of such a size and shape as to necessitate:

but does not include agricultural products, beverages, clothing, food, footwear, leisure goods, paper or stationery products, small electrical appliances, electronic goods or toys.”

128 In the present case, the “additions and alterations to an existing bulky goods retail centre” for which consent was granted involves the addition of 10 new bulky goods tenancies in a single storey extension generally to the east of the existing SupaCenta building. The extension relies upon the removal of a large number of at grade car parking spaces. The new bulky goods tenancies are to be serviced by the under-utilised basement car park located at the western end of the existing SupaCenta, at a lower level.

129 Calardu submits that notwithstanding that each of the tenancies was to be the subject of an independent future development consent, the council failed to give any consideration to element (b) of the definition of bulky goods being “easy and direct vehicular access so as to allow for their collection by customers”. Therefore, Calardu submits, the council failed to form an opinion fundamental to satisfaction that the use was one for which consent may be granted.

130 Calardu bears the onus of establishing that the council did not form the requisite opinion. An inference as to whether or not the opinion is formed may be drawn from documentary material evidencing the decision-making process. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 at [69] – [70] Preston CJ said:

“The onus rests on the applicant as the challenger of the Minister’s decision to renew A216 to establish that the Minister did not form the required mental state of satisfaction under s 114(6). The applicant can discharge this onus by reference to the documentary material evidencing the decision-making process if that material is sufficient to allow the Court to draw the inference that the Minister did not form the required mental state of satisfaction…

Austral Monsoon Industries Pty Ltd v Pittwater Council

Mining Act

131 Calardu deals with this ground by reference to the council report.

132 I infer from the council report that the council did form the opinion. The full definition of “bulky goods” is set out in full in the council report (at 13). It appears in the context of a discussion on permissibility, which concludes with the statement: “The proposed development is permissible on the site, only with Development Consent”. I infer from this that the council officers held the opinions in the definition and were advising that the opinions could reasonably be drawn. I think that is the end of the matter.

133 If that is insufficient of itself to draw the inference that the council formed the subject opinion, then I think it is sufficient when it is coupled with relevant matters in attachment 11 to the council report, which lists the issues raised by submissions and Pipven’s comments and the council’s comments on each issue. Item 41 of Attachment 11 is entitled “Poor Architectural Quality and Excellence”. The council comment is that it concurs with Pipven’s response. Pipven’s response refers to bulky goods retail centres and includes the following:

“The SupaCenta design and appearance is a typical example of the bulky goods retailing product…The building type requirements for bulky goods retailing is unique and specific relating to its function for the provision of bulky goods retailing. This retail type allows for items not specifically found in traditional shopping mall centres and is reflected in the definition of “bulky goods” in the Penrith LEP 1996, which refers to large goods necessitating a large area of handling, storage and display and which requires easy and direct vehicular access for collection by customers.”

134 This, in terms, is a reference to paragraph (b) of the definition of “bulky goods”. Pipven’s comments included the comment that: “The tenants have direct address [sic access] to the central mall and also a direct connection to an external loading dock or carpark where large goods can be delivered or collected”. In all of this, the council officers concurred. From all of this I draw the inference that the council held the opinion referred to in para (b) of the definition of bulky goods. The council report contains further references, to which it is unnecessary to specifically go, which further support that conclusion.

135 Accordingly, I do not accept this ground of challenge.

136 The fifth ground on which Calardu challenges the validity of the development consent is expressed in its summons as follows:

“The Second Respondent’s decision to grant the Consent was infected by apprehended bias in circumstances where it had failed to respond adequately or at all to questions raised by the applicant relating to a meeting which had occurred on 23 June 2009 between representatives of the first and second respondent such meeting being characterised by the first respondent as a meeting held for the purpose of settling a dispute in the nature of threatened or anticipated legal proceedings arising out of concerns raised by the applicant with the first respondent in a letter dated 19 June 2009.”

137 Calardu’s submission that the development consent is invalid because it is infected by the council’s apprehended bias has two evidentiary limbs:

138 The test of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power: McGovern v Ku-ring-gai Council [2008] NSWCA 209, 72 NSWLR 504 at [14], [72] and [79]; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 264; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 – 294, 300; Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6] - [7]. No different test applies in the case of local councils; but the test is applied more stringently in the case of judicial decision-makers: McGovern at [32], [71], [75]. The position of elected councillors of a local council, whose functions include the broadly political in representing the views of the local community and those of administrative decision-maker granting development applications in accordance with statutory criteria, are “far removed” from a judicial paradigm: McGovern at [75], [77]. It is therefore necessary to take “a significant degree of care” in applying the fair-minded observer test to a local council: at [77].

139 In addition, since a council is a multi-member body it may be difficult to establish apprehended bias on the part of a council as a whole: McGovern at [60] – [62], [98], [237]. The High Court refused special leave from the Court of Appeal’s decision: McGovern v Ku-ring-gai Council [2009] HCATrans 48.

140 A distinction must be drawn between a person in a decision-making authority with a determinative function, and a person whose involvement in the mechanics of the decision-making process is not determinative. In the latter case, the test of apprehended bias is not met, particularly if the person is an officer who has no more than a peripheral role: Hot Holdings Pty Ltd v Creasy [2002] HCA 51, 210 CLR 438 at [8], [24], [74]; McGovern at [166] – [183]. Thus, application of the fair minded observer test to employed officers of a council who are not vested with delegated power of the council to make the determination in question does not necessarily indicate whether there is apprehended bias on the part of the council.

141 The knowledge ascribed to the fair-minded observer should not be at the level of sophistication of a judge, lawyer, specially educated or informed citizen, or a party involved in the decision-making process: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 419. Knowledge of the actual circumstances of the case must be attributed to the fair-minded observer: McGovern at [78]. Basten JA said at [81]: “… it may be important not to take particular statements out of context. That may mean also taking into account contemporaneous statements by the decision-maker asserting that particular information had no influence on his or her decision.”

142 As his Honour said at [83], the fair-minded observer test is not a test of what the person who alleges bias thinks of the decision-making process:

“…reference to the views which might be held by a party to a dispute will tend to weaken the objective nature of the test. Thus a party might have a particular belief about the proper decision, perhaps based upon a level of detailed information which should not properly be ascribed to the fair-minded observer. Nor is it necessary to consider whether a party would hold a reasonable apprehension in circumstances where others might not.”

143 An administrative decision-maker, in particular a regulatory agency or local council, does not have to be free from prior involvement in a decision. As Deane J said in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 90:

“acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.”

144 The meeting of 23 June 2009 was occasioned by a letter of 19 June 2009 from Calardu’s solicitors jointly to Pipven, the council and Ticor Development Pty Ltd. After recounting some events, the solicitors wrote that they were instructed to commence urgent Class 4 proceedings in this Court for declaratory and injunctive relief, including a declaration that the 2008 consent is void. They said that Calardu will not immediately commence proceedings if they urgently provided a written undertaking to cease all building works on the site for one week and meet with Calardu in an attempt to negotiate a resolution.

145 The respondents admit that a without prejudice meeting was held on 23 June 2009 which was attended by its representatives and those of Ticor but deny Calardu’s allegations set out at [137 (a)] above. At the time when the meeting was held, the respondents expected to be parties to a proceeding because of the letter received from Calardu’s solicitors.

146 It is necessary to refer to the following further correspondence on which Calardu relies for the first limb of its apprehended bias claim.

147 On 7 July 2009 the council’s solicitors wrote to Calardu’s solicitors in response to the latter’s request for access to documents held by the council. The letter said that the council claimed privilege over a file note dated 23 June 2009 and that “this document comprises file notes made by the council’s solicitor…evidencing without prejudice negotiations between representatives of the council and of Pipven Pty Limited and Ticor Developments Pty Limited held for the purpose of settling a dispute in the nature of threatened and anticipated legal proceedings arising out of the contents of your letter dated 19 June 2009”.

148 On 5 August 2009 Calardu’s solicitors wrote to the council’s solicitors referring to the new development application which Pipven had been directed to submit to the council on or before 5 August 2009 (by order of the Court made on 2 July 2009). The letter expressed Calardu’s concern about the council’s ability to provide an impartial assessment and determination of the new development application. The concerns were said to arise from the council’s conduct in respect of three matters. Each of those matters was then identified and specified information in relation to each was requested. One of those matters was the council’s meeting on 23 June 2009 with representatives of Pipven. A letter from the council’s solicitors of 7 July 2009 was attached confirming the council’s refusal to make known the matters discussed at the meeting. A number of questions were then put in relation to that meeting.

149 The council solicitors’ letter of reply of 10 August 2009 declined to provide the information requested at the meeting of 23 June 2009.

150 On 19 August 2009 Calardu’s solicitors again wrote to the council solicitors putting them on notice that Calardu will rely on the facts stated in their letter of 5 August 2009 and the council’s failure to respond substantially to the questions in their letter to found a claim that any development consent granted by the council with respect to the 2009 development application is tainted by apprehended bias and should be set aside.

151 Calardu submits that the inference should be drawn from the correspondence and the respondents’ refusal to provide Calardu with details of the meeting, that the council and Pipven agreed at the 23 June 2009 meeting that Pipven would lodge a further development application and that Pipven should apply to vacate the hearing of the pending proceedings. Pipven says that those proceedings were then adjourned by the Court on 24 July 2009 on that basis.

152 In fact, on 24 July 2009 Pipven successfully applied for an adjournment on the basis of s 124(3)(a) of the EPA Act, which encourages adjournments in such circumstances where a new development application is to be lodged. The council did not agree to the adjournment nor did they oppose it.

153 No challenge has been made to the appropriateness of the claim for privilege in respect of the meeting.

154 In those circumstances, I am unable to see that a hypothetical fair minded and informed lay observer might think that the council might not bring an impartial mind to the determination of the development application, which was in fact not lodged until August 2009.

155 However, let it be assumed (notwithstanding the privilege claim) that as a result of that meeting the new development application was lodged. There is no evidence to suggest that there was some deal done that if it was lodged it would be rubber stamped. The hypothetical observer would be attributed with knowledge of the copious material that was put before the council to assist its decision-making process. That material points to the process having been conducted properly and in accordance with legal requirements. The hypothetical observer would be aware that the council went so far as to engage external consultants to undertake an independent peer review of the development application with respect to the economic impacts, traffic and parking and council’s own assessment process.

156 I cannot draw any inference of reasonable apprehension of bias from the first limb of Calardu’s case.

157 I turn to the second limb concerning the meeting between the quantity surveyors for Pipven and for the council to which Calardu’s quantity surveyor was not invited. The evidence indicates that the council either requested or encouraged its quantity surveyor to attend the meeting.

158 There is no legal obligation on councils to bring together in meetings advisers or consultants to a proponent (or to a council) and to an objector. It is normal for proponents and councils to meet in the context of consideration and determination of development applications. In my view, it is insufficient to support an apprehended bias claim that a quantity surveyor for an objector, Calardu, was not included in the meeting in this case.

159 Even viewing both limbs of Calardu’s case cumulatively, I do not accept that the apprehended bias ground is made out.

160 Finally, contrary to Calardu’s further submission, matters of claimed legal error raised under certain other grounds of challenge to validity are not matters which might result in a reasonable apprehension of the fair-minded observer. In any event, those grounds are not established.

161 For these reasons, I do not accept this ground of challenge.

PROCEDURAL FAIRNESS

162 The sixth ground on which Calardu contends that the development consent was invalid is that the council denied it procedural fairness in processing the 2009 development application by failing to provide it with the opportunity to consider and comment upon amended plans lodged by Pipven after the close of the objection period on 9 September 2009.

163 In oral argument at the tail of the case, Calardu sought to expand this procedural unfairness complaint beyond the amended plans to encompass certain reports. I uphold the respondents’ objection that it is procedurally unfair to the respondents to have raised it so late and that it falls outside the summons and the points of claim which Calardu has not sought leave to amend.

164 The statutory context is provided by s 79C(1)(d) of the EPA Act which required the council to take into consideration any relevant submissions made in accordance with the Act or the regulations.

165 On 8 September 2009 BBC Consulting Planners on behalf of Calardu lodged a detailed submission with the council in response to notification of the 2009 development application. Relevantly, the submission stated:

(a) “The existing basement car parking spaces are accessed via an internal ramp that is on a steep grade, with inadequate transitions such that scraping occurs in some cases”. There was then a reference to an Australian Standard;
(b) “the basement car parking spaces are not readily accessible internally as walking distances to the escalators are substantial, particularly from the northern area…In addition, the one-way traffic system is not convenient for recirculation to those customers who need to visit the Penrith Homemaker Centre for bulky goods purchases”.

166 Thereafter, Pipven’s consultant, City Plan Services, lodged a supplementary statement in response to submissions or objections received, including those from Calardu. Paragraph 3.5 referred to the topic of inadequacy of plans. Amendments were made in attached basement plans for additional work described as:

(a) re-grade existing vehicular access ramp to comply with Australian Standards;
(b) two new pedestrian ramps to basement.

167 Thus, the amended plans addressed the very matters identified in the submissions on behalf of Calardu.

168 It is those amended plans, which were not shown to Calardu, which are the subject of its procedural fairness complaint.

169 The council report addressed these matters and commented: “Amended plans have been submitted. It is considered that these plans denote minor works which do not warrant re-notification”.

170 The Penrith Development Control Plan 2006 paragraph B12 provided that an amended development application will not be re-notified or re-advertised if in the opinion of the responsible council officer the proposed amendment is unlikely to prejudice any persons who were precisely notified of the development application or who made a submission in respect of it. There is no contention that the council failed to act in accordance with this provision or that the provision was breached or that the amendments prejudiced Calardu.

171 In modern times, the High Court has mostly formulated the principles of procedural fairness (if not of administrative law generally) in immigration cases. At the appellate level, the application and content of the principles in environment and planning cases have been dominated by decisions of the intermediate appellate courts.

172 The common law duty of procedural fairness was described by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585 in these terms:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to ‘fairly listen to both sides’ being ‘a duty lying upon every one who decides anything’: Board of Education v Rice [[1911] AC 179, at p 182]. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly…

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation [(1963) 113 CLR 475, at pp 503-504], Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting…

In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…

173 This approach has been applied numerous times: eg Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 at [61] – [62]; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 at [53] - [65]. See also the analysis of the principles of procedural fairness in Harvey and Tubbo v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165, 160 LGERA 50 at [98] – [118] per Jagot J.

174 Procedural fairness was required unless the EPA Act manifested a clear intention that it was not required: Tubbo at [54]. I propose to proceed on the basis that it was required. The question then is what was the content of the duty.

175 The content of the duty of procedural fairness depends on the particular statutory framework, which must be given full effect, and the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 at [26].

176 The subject matter of the relevant statutory duty was the council’s consideration of submissions: s 79C(1)(d) EPA Act. In response to the statutory notification, Calardu lodged a submission with council and the proponent, Pipven, responded by lodging amended plans with the council, which the council concluded were satisfactory. Calardu says that the content of the common law duty to afford procedural fairness required the council to inform Calardu of the amended plans.

177 “It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision should be given the opportunity to be heard. That would ordinarily require the party directly affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”: SZBEL at [32] quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. “A decision-maker receiving submissions is not generally subject to a duty to disclose a proposed conclusion, unless it is of a character that could not reasonably be anticipated”: Tubbo at [84].

178 The approach to the content of the duty is to identify the particular interest of Calardu said to be adversely affected and to inquire what procedural fairness required in the full range of relevant circumstances.

179 The amended plans could reasonably have been anticipated and were not adverse to Calardu. They constructively addressed the very matters raised in the submissions on behalf of Calardu. The council concluded that they were acceptable. The purpose of the notification procedure was fulfilled.

180 The logical consequence of Calardu’s argument is that the council had to keep providing it with the responses to all Calardu’s submissions indefinitely. This is “an infinite regression of counter-disputation” that has been criticised as “making a statutory scheme unworkable”: Minister for Local Government v South Sydney City Council [2002] NSWCA 288, 55 NSWLR 381 at [267]; Tubbo at [84]. Procedural fairness is not like a potentially endless game of tennis where every submission or ball Calardu hit over the net had to be returned with the proponent’s response until Calardu stopped – even if Calardu hit a winner, as it did when its submission was met. Nor is procedural fairness to be equated with a duty of unlimited discovery to an objector. No new issue had arisen. On receipt of the final material, the council was entitled to evaluate it and make a determination.

181 In my opinion, there was no breach of the council’s duty of procedural fairness. Accordingly I do not accept this ground of challenge.

182 The orders of the Court are as follows:

Citations

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

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CITATION:	Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
PARTIES:	APPLICANT: Calardu Penrith Pty Ltd FIRST RESPONDENT: Penrith City Council SECOND RESPONDENT: Pipven Pty Ltd
FILE NUMBER(S):	40913 of 2009
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- whether council development consent invalid - whether council acted ultra vires because consent power was vested in a regional planning panel by reason of a jurisdictional fact that the capital investment value was more than $10 million - whether council failed to take into account objector's submission as to economic impact of the development - whether council failed to take into account impact of the development upon a shared parking arrangment that was the subject of its own earlier development consents as modified - whether council formed the opinion required by the definition of "bulky goods" in a local environmental plan as a pre-condition of development consent - whether council's decision was infected by apprehended bias - whether council failed to accord procedural fairness to an objector
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Law Enforcement (Controlled Operations) Act 1997 Local Government Act 1919 Penrith Development Control Plan 2006 Penrith Local Environmental Plan 1996 (Industrial Land) Penrith Local Environmental Plan No 201 (Rural Lands) State Environmental Planning Policy (Major Developments) 2005 State Environmental Planning Policy No 34 – Major Employment-Generating Industrial Development
CASES CITED:	Alumino Australia Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1995) 88 LGERA 388 Anderson v Director-General Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, 166 FCR 54 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Barrick Australia Ltd v Williams [2009] NSWCA 275, 168 LGERA 43 Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 Casa v City of Ryde Council [2009] NSWLEC 212 Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401, 135 LGERA 257 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dowe and Gedeon v Commissioner of the New South Wales Crime Commission [2007] NSWCA 296 Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 Enfield City Corporation v Development Assessment Commission [2000] HCA 5, 199 CLR 135 Gedeon v Commissioner of the New South Wales Crimes Commission [2008] HCA 43, 236 CLR 120 Harvey and Tubbo v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165, 160 LGERA 50 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 Hot Holdings Pty Ltd v Creasy [2002] HCA 51, 210 CLR 438 Kioa v West (1985) 159 CLR 550 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 Livesey v New South Wales Bar Association (1983) 151 CLR 288 McGovern v Ku-ring-gai Council [2009] HCATrans 48. McGovern v Ku-ring-gai Council [2008] NSWCA 209, 72 NSWLR 504 Minister for Local Government v South Sydney City Council [2002] NSWCA 288, 55 NSWLR 381 Sun Newspapers Ltd v Federal Commissioner of Taxation (1938) 61 CLR 337 Sutherland Shire Council v Finch [1970] HCA 49, 123 CLR 657 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 Williams v Minister for Planning [2009] NSWLEC 5, 164 LGERA 204 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707
DATES OF HEARING:	17-18 February 2010 9-10 March 2010
DATE OF JUDGMENT:	1 April 2010
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Galasso SC with Mr M Wright (barrister) SOLICITORS: Mallesons Stephen Jaques FIRST RESPONDENT: Mr J Ayling SC SOLICITORS: Sparke Helmore SECOND RESPONDENT: Mr J Griffiths SC with Ms M Allars (barrister) and Mr A Stafford (barrister) SOLICITORS: Norton Rose