Centro Properties Limited v Warringah Council - [2003] NSWLEC 145

Reported Decision: (2003) 128 LGERA 17

Land and Environment Court

of New South Wales

CITATION: Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145

PARTIES:
APPLICANT
Centro Properties Ltd
FIRST RESPONDENT
Warringah Council
SECOND RESPONDENT
Cornerstone Property Group Pty Ltd

FILE NUMBER(S): 40045 of 2003

CORAM: Pain J

KEY ISSUES:
Construction and Interpretation :- whether cl 12(3)(b) and cl 20(1) of the Warringah Local Environmental Plan 2000 are conditions precedent - whether cl 20 is a jurisdictional fact
Judicial review :- whether the material before Council adequately characterised the Desired Future Character Statement for the C9 Locality to enable a determination of whether the proposal is "consistent with" the Desired Future Character in determining to grant development consent - whether the conditions precedent in cl 12(3)(b) and cl 20(1) relating to a finding of consistency of the proposal with the desired future character were satisfied - whether the conclusion of consistency with the Desired Future Character was manifestly unreasonable - whether the Council failed to consider the requirement of consistency with the Desired Future Character - whether the Council failed to consider the economic impact in the locality as required by s 79C(1)(b)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 34(1), s 79C
State Environmental Planning Policy No 1
Draft State Environmental Planning Policy No 66
Warringah Local Environment Plan 2000 cl 3, cl 6, cl 7, cl 10, cl 11, cl 12, cl 14, cl 18, cl 20, C9 Locality Statement

CASES CITED: Bruce v Cole (1998) 45 NSWLR 163;
Clifford v Wyong Shire Council (1996) 89 LGERA 240;
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135;
Craig v South Australia (1995) 184 CLR 163;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Dem Gillespies v Warringah Council [2002] NSWLEC 224;
ex parte Hebburn; re Kearsley Shire Council (1947) 47 SR (NSW) 416;
Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373;
Franklins Limited v Penrith City Council [1999] NSWCA 134;
Hill v Green (1999) 48 NSWLR 161;
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291;
Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577;
Plumb v Penrith City Council [2002] NSWLEC 223;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74;
Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55;
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 5, 6/03/2003

DATE OF JUDGMENT:
07/02/2003

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Jagot (barrister)
SOLICITORS
Mallesons Stephen Jacques
FIRST RESPONDENT
Mr SB Austin (barrister)
SOLICITORS
Wilshire Webb
SECOND RESPONDENT
Mr J Ayling SC
SOLICITORS
Staunton Beattie

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40045 of 2003

Pain J

2 July 2003

CENTRO PROPERTIES LIMITED

(ACN 006 378 365)

Applicant

WARRINGAH COUNCIL

First Respondent

CORNERSTONE PROPERTY GROUP PTY LTD
(ACN 000 684 686)
Second Respondent

Judgment

Introduction

1. The Applicant has commenced Class 4 proceedings seeking the following relief:

(1) A declaration that development consent 2001/1615 DA for construction of bulky goods retail outlet, shops, restaurants, conservation of bushland and associated parking ("the Consent"), granted by the Second Respondent in relation to Lot 1 in Deposited Plan 880191 known as 4 - 6 Niangala Close, Belrose (the Property) is invalid and of no effect.
(2) An order that the Second Respondent be forthwith restrained from acting upon the consent.
(3) Costs.
(4) Such other orders as the Court thinks fit.

2. The parties handed up an agreed statement of facts not all of which was ultimately relevant to the Applicant's case as some grounds raised in the Points of Claim were ultimately not pressed. The relevant parts are as follows:

1. On or about 5 November 2001, the Second Respondent lodged with the First Respondent a Development Application relating to the land comprised in Lot 1 in Deposited Plan 880191 known as 4 - 6 Niangala Close, Belrose ("the Land").

2. The development application generally proposed the erection of a multi-tenancy bulky goods centre with ancillary access roads, signage and landscaping comprising proposed uses of bulky goods shops, restaurants and shops as described under the heading "Proposed Development" on the form lodged by the Second Respondent with the First Respondent ("the Development").

3. On or about 19 March 2002, the First Respondent resolved to grant approval to the Development Application subject to advice of concurrence being received from the National Parks and Wildlife Service and subject to the conditions contained in the draft consent notice attached to the 19 March 2002 report ("the Resolution").

4. On or about 19 March 2002, the Development Application was the subject of a report to the First Respondent's Local Approvals Committee meeting.

5. Concurrence was granted to the Development Application by the Director-General of National Parks and Wildlife on 26 April 2002 subject to conditions.

6. On or about 7 May 2002, the Council issued a notice of determination for the Development Application granting development consent to the application incorporating the amended conditions to which the Concurrence was subject ("the Consent").

7. At all material times the land was located in the locality prescribed under the Warringah Local Environmental Plan 2000 ("the LEP") as C9 Austlink Business Park Locality ("the C9 locality").

8. Under the LEP, the Development comprised development for the purposes of bulky goods shops classified as Category 1 Development.

9. The Development also included shops with a gross floor area not exceeding 2,500 square metres and restaurants.

3. I also note the proposed development is substantial being a six level, multi-tenanted bulky goods retailing centre comprising 38,907 square metres gross floor area. The proposal includes:

· 35,657 square metres of "bulky goods shops";

· 2,500 square metres of "shops";

· 750 square metres of restaurants;

· carparking for 954 vehicles;

· ancillary access roads, signage and landscaping.

4. If built, the proposed development will be one of the, if not the, largest facility of its type in the Sydney metropolitan area.

Relevant provisions of the Warringah Local Environmental Plan 2000

5. The Warringah Local Environment Plan 2000 (the LEP) is 576 pages long (excluding amendments made after 26 April 2002) and is in a form unlike traditional LEPs which rely on zoning and zoning tables to define what development is allowable in a given area. Pages 134 - 576 of the LEP are comprised of Locality Statements, a term defined in the Dictionary to the LEP as "a Locality Statement set out in an Appendix to this plan". There are no zoning provisions in the LEP.

6. Clause 3 of the LEP specifies that the purposes of the plan are:

(a) …

(b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and

(c) to establish limits to the exercise of discretion with regard to the control of development, …

7. Part 2 of the Plan, entitled "Control of Development", provides in cl 7 that all development requires consent except exempt development identified in Sch 1 when carried out in accordance with the requirements of that schedule and development identified in Sch 2 when carried out in accordance with the requirements of that schedule. Under cl 10, prohibited development is, inter alia, development identified as being prohibited within a Locality Statement. The Council is constituted as the consent authority under cl 11 except in relation to certain types of remediation work.

8. Clause 12 is entitled "What matters are considered before consent is granted?"

Clause 12 is in the following terms:

(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:

(a) any relevant general principles of development control in Part 4, and

(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:

(a) the relevant requirements made by Parts 2 and 3, and

(b) development standards for development set out in the Locality Statement for the locality in which the development will be carried out.

(3) In addition, before granting consent for development classified as:

(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement.

9. There is a note at the end of cl 12 of the LEP which reads:

Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.

To assist with understanding: Category One development is development that is generally presumed to be consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally presumed to be inconsistent with the desired future character of the locality.

10. Clause 6(2) of the LEP provides that notes are explanatory only and do not form part of the LEP.

11. Clause 14 is entitled "How will the use of land be controlled?" It provides, in subclause (1), that:

For the purposes of clause 12, development of land within a locality is classified by the relevant Locality Statement as being within one of three following categories:

(a) Category One;

(b) Category Two;

(c) Category Three.

12. Clause 18 is entitled "How will the built form of development be controlled?" It is in the following terms:

(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.

(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.

13. Clause 20 is entitled "Can development be approved if it does not comply with a development standard?" Subclause (1) provides that:

Notwithstanding clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.

14. Part 4 of the LEP contains the "General principles of development control". It deals with such matters as glare and reflection, noise, pollutants, hazardous uses, radiation emission levels, flood affected land, safety and security, signage, sloping land, access to sunlight, landscaped open space, private open space, building bulk, traffic access and parking.

15. As the phrase "development standards" is not defined in the LEP, s 34(1) of the Environmental Planning and Assessment Act (the EP&A Act) applies and "development standards" in the LEP has the same meaning as in the EP&A Act. For the purpose of the LEP, therefore, a development standard as referred to in cl 12(2)(b) and cl 20 is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development.

16. "Locality" is also defined in the Dictionary to the LEP, to mean "a discrete area of land (or water) listed as a locality in an Appendix to this plan and identified on the map".

17. Other relevant definitions in the Dictionary to the LEP include:

bulky goods shop

means a building or place used for the sale by retail or auction of goods or materials which are of such a size, shape or weight as to require:

(a) a large area for handling, storage or display, or

but does not include a building or place used for the sale of food stuffs or clothing.

restaurant means a business or place, the principle purpose of which is the provision of food to paying customers for consumption on the premises.
shop means a building or place used for the purpose of display or sale, whether by retail or by auction, of items (whether goods, materials or services), but does not include a building or place elsewhere defined in this Dictionary.

18. Locality C9, the Austlink Business Park, commences at 284 of the LEP. The section entitled "Desired Future Character" (DFC) is in the following terms:

The Austlink Business Park will integrate modern forms of industry, manufacturing, research, warehouses, offices and related services with the natural qualities of the locality and the adjacent National Park.

Articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and textures of the natural landscape will be used to minimise the visual impact of development on long distance views of the locality.

Areas within the locality shown cross-hatched on the map may only be developed if it is clearly demonstrated that the topography of the land is suitable for development and any Aboriginal relics found on the site may be preserved in their natural state.

There will be no vehicle access to properties directly from Mona Vale Road or Forest Way.

19. The land use section is as follows for Category One and Category Two:

Category One
Development for the purpose of the following:

· bulky goods shops

· child care centres

· industries

· offices

· recreation facilities

· warehouses

Category Two

Development for the purpose of the following:

· business premises (with a gross floor area not exceeding 2,500 m2)

· community facilities

· hospitals

· hotels (only where they incorporate conference centres)

· restaurants

· service stations

· shops (with a gross floor area not exceeding 2,500 m2)

· short term accommodation (only where it incorporates conference centres)

· other buildings, works, places or land uses that are not prohibited or in Category 1 or 3

20. I note that bulky goods shops are identified as development for a purpose within Category One. Within Category Two, development is identified for the purposes of shops (with a gross floor area not exceeding 2,500 m2) and restaurants and applies to this case.

21. Under the heading "Built form" in the C9 Locality Statement, development standards are specified in respect of building height, minimum front building setback to Mona Vale Road and Forest Way, minimum front building setback to other roads, landscaped open space, site coverage, floor space ratio and subdivision.

22. It is agreed between the parties that the Locality Statement for the C9 locality identifies the following Built Form Controls with which the Development did not comply: a maximum height of building of 11 metres, buildings must have a secondary set back of at least 30 metres from any property boundaries adjoining Forest Way, secondary set backs of 10 metres are to be established to other roads, including Niangala Close and Garrigal Road, primary set backs of 6.5 metres to be established to Garrigal Road and maximum building site coverage of one third of the site area.

Evidence

23. The evidence in the case was essentially the documentary material from the Council's file. Key documents were the Statement of Environmental Effects dated October 2001, a market demand analysis prepared by Leyshon Consulting Pty Ltd, a report to Council dated 19 March 2002 (the report to Council), a letter of objection from Lend Lease Retail dated 14 December 2001 and a response by JBA Urban Planning Consultants dated 22 January 2002.

24. There were also affidavits of town planners admitted into evidence for both the Applicant and Respondents. These are only relevant to the first subsidiary argument of the Applicant (see par 45 - 48 below), and, to a minor extent only, the second primary argument (see par 113).

Applicant's arguments

25. The Applicant's argument is based on two principal grounds:

(1) The Council wrongly assumed to itself jurisdiction to grant development consent to the development application in circumstances where the condition precedent to the existence of that jurisdiction namely,

(i) the reaching of the relevant state of satisfaction of consistency with the DFC of the locality as specified in the Locality Statement for locality C9 required by operation of cl 12(3)(a) and (b) and

(ii) the fact of consistency with that DFC required by cl 20(1) and cl 12(3)(b))

had not been fulfilled. Accordingly, absent the fulfilment of the mandatory condition precedent, the Council had no power to grant the development consent.

Accordingly, the consent was granted in breach of the EP&A Act, which breach was material, and is invalid.

26. The first argument above has three subsidiary arguments which arise only if the primary contention is rejected:

(i) that cl 20(1) (the fact of consistency) gives rise to a jurisdictional fact proper about which the decision of the Council, if lawfully made because the right question was posed, can never be conclusive and the Court on review should conclude that the proposed development is not so consistent.

(ii) that if not a jurisdictional fact proper, the satisfaction of the Council was a state not reasonably open on the material before the Council (the Council's decision was manifestly unreasonable).

(iii) that there was (for the same factual reasons) a failure to consider within jurisdiction.

Applicant's submissions argument 1 - wrongful assumption of jurisdiction

27. In this case, the LEP contains two conditions precedent which must be satisfied before the Council is able to consider the merits of the matter:

(1) For the Category Two development (shops and restaurants) the Council could only obtain jurisdiction to determine the development application by the grant of development consent after it had satisfied itself that the development was consistent with the DFC described in the relevant Locality Statement: cl 12(3)(b).

(2) Because the proposed development breached certain of the development standards which applies to the development, the Council could only obtain jurisdiction to determine the development application by the grant of development consent for the Category One development (the bulky goods shops) if:

(a) the Council considered the DFC described in the relevant Locality Statement; and

(b) by operation of cl 20(1), provided that the resulting development was consistent with the general principles of development control, the DFC of the locality and any relevant state environmental planning policy.

28. For Category Two development, the LEP expressly provides that the relevant state of satisfaction which operates as the condition precedent is that of the consent authority. This also applies to Category One development absent cl 20. Clause 12 establishes a jurisdictional fact in the broad sense (that is a condition precedent) by reference to a state of satisfaction by the Council. Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577 considered that jurisdictional fact could include an opinion, in other words, a matter of satisfaction can be a jurisdictional fact.

29. Clause 20, in contrast, does not require the consent authority to reach a relevant state of satisfaction, that is, form an opinion. The test in cl 20(1) is a wholly objective test. If development does not comply with one or more development standards then notwithstanding cl 12(2)(b) consent may be granted:

provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy

30. In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Spigelman J refers to jurisdictional facts as those facts which can be characterised by "objectivity" and "essentiality" (at 64), although his Honour was not asked to deal with other classes of jurisdictional fact.

31. Jurisdictional error will arise from misconstruction of an instrument which results in a wrongful assumption of jurisdiction: see ex parte Hebburn; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Craig v South Australia (1995) 184 CLR 163 at 177 - 8, Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 644. Here the Council had no jurisdiction to grant development consent to the development application unless and until the conditions precedent had been fulfilled. Without the fulfilment of the condition precedent under cl 20 or cl 12 any grant of development consent was necessarily beyond power.

32. Particular reliance is placed by the Applicant on the decision of Bignold J in Dem Gillespies v Warringah Council [2002] NSWLEC 224. Firstly, because his Honour concluded in relation to the meaning of "consistent with" in cl 12(3)(b) of the LEP was "consistent" assumed its ordinary and natural meaning which is not confined to the notion of the proposed development "not being antipathetic" to the DFC. Secondly, because his Honour concluded that cl 12(3)(b) operates as a condition precedent to the grant of development consent for a Category Two development (par 84). Other cases relied on to support the submission that the concept of "condition precedent" is commonplace in planning law included Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74, in which the Court of Appeal relied on Franklins Limited v Penrith City Council [1999] NSWCA 134 in holding that a failure to form an opinion which is a condition precedent results in a grant being invalid (at [7]). See also Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 - 5, Clifford v Wyong Shire Council (1996) 89 LGERA 240 at 372, 374, and Manly Council v Hortis (2001) 113 LGERA 321 at 329 - 330, 332, 333 which also considered the issue of condition precedent.

33. The conditions precedent under cl 12 and cl 20 concern consistency with that part of the C9 Locality Statement dealing with "desired future character". In order to lawfully obtain jurisdiction the Council was required to properly construe the DFC of the C9 Locality.

34. It is appropriate to consider the material placed before the Council in order to draw inferences about the actions of Council; see Currey, Hortis and Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385. The material placed before the Council (essentially the statement of environmental effects and the report to Council of 19 March 2002) did refer to the task required by cl 12 and 20, but there was a fundamental misconception about the relevant test of consistency with the DFC.

35. The Applicant referred at length to the material before the Council in support of this submission. In summary, the submission was made that in the Statement of Environmental Effects there were:

(c) assertions of consistency based on the building form being "articulated", the provision of landscaped areas, minimisation of visual impact, absence of Aboriginal artefacts or sites and the absence of proposed vehicular access to either Forest Way or Mona Vale Road (for example, p 36).

36. In the report to Council there were:

(a) bare assertions of consistency (for example, B204, second paragraph);

(b) assertions that Council, through its LEP, had "endorsed" the Austlink Business park as a desirable location for bulky goods retailing so that Austlink could be considered to be a "regional cluster" as discussed in SEPP 66 (at B217);

(c) assertions that the Austlink Business Park had been "identified by the LEP" for development as a "mixed used cluster of bulky goods, general retailing, warehouse and light industrial uses" so that the proposed development would "reinforce the planned and evolving role of the Austlink Business Park as a 'cluster'" (at B217) (emphasis added);

(d) assertions that the proposed development would reinforce the "emerging cluster of bulky goods retailing and employment generating development at the Austlink Business Park" (at B218);

(e) assertions that the development had the potential to add to the "locality objective of developing a mixed use cluster" (at B218) - which, given the above, can only be construed as meaning the mixed use cluster of bulky goods retail and retail development;

(f) assertions that, given the size of the proposed shops, the shops (not the bulky goods shops) were not considered to be inconsistent with the DFC of the locality (at B223).

37. It was argued both documents disclose a fundamental misconstruction of the C9 Locality Statement. Both the Statement of Environmental Effects and the report to the Council identified the relevant categories applicable to the proposed development but fail to consider the DFC at all, particularly the issue of the purposes of development in the first paragraph of the DFC in the C9 Locality Statement that "the Austlink Business Park will integrate modern forms of industry, manufacturing, research, warehouses, office and related services." The only part of the C9 Locality Statement dealt with in these documents is the built form and restrictions on development and integration with the National Park.

38. Both documents treat the inclusion of bulky goods shops as a Category One use and shops and restaurants as Category Two uses as evidence of consistency with the DFC of the locality. This, it was argued, was not the approach taken by Bignold J in Dem Gillespies. In par 92 of that judgment an argument to the same effect was rejected on the basis that it:

…fails to have regard to the fundamental distinction between the provisions of the LEP which so classify the development as being one that may be carried out in the locality (with development consent) and the provisions of cl 12(3)(b) which require, as a condition precedent to the grant of any such development consent, the satisfaction on the part of the consent authority that the proposed development

with the relevant desired future character of the locality.

39. Bignold J stated at [93] that such an assertion would be:

undermined by the manner in which the Courts have interpreted clauses of local environment plans requiring the consent authority to be satisfied that a proposed development be consistent with a zone objective, as

not

being provisions that declare

prohibited

development, but as provisions which limit the power of a consent authority to grant development consent.

40. The report to Council repeatedly misstates in a real and material manner the purpose of the development identified in the DFC section of the Locality Statement (see (a) - (f) at par 36).

41. These statements in the report to Council are said by the Applicant to be a fundamental misdirection to the Council because they assert that bulky goods retail and general retail development are uses which the LEP prescribes are planned for the C9 Locality (that is, its DFC). Further, the Council was directed by its own report that the relevant purposes forming part of the DFC was a mixed use cluster of bulky goods and general retailing within the Austlink Business Park having a "planned role" as a "regional cluster" for those purposes. As no other evidence has been presented the only available inference is that the Council relied on the report to Council to determine to grant development consent.

42. Currey and Hortis establish that an inference of failure to form the relevant opinion or state of satisfaction may more readily be inferred in the absence of evidence, specifically that the precondition (correctly construed) was addressed. In those cases the Court of Appeal rejected arguments that consideration might be inferred from an assessment of the whole of the material before the council based on matters such as the council's general knowledge of the site or general awareness of the LEP provisions.

43. In Hortis the Court discussed whether, in considering satisfaction of a precondition, the Court should take into account a Council's reliance on general or local knowledge when the planning instruments were not complex, or at least not of the complexity of those in Currey and Franklins. The Court of Appeal held general or local knowledge was insufficient (see [39] - [40]). The principle that councillors may be assumed to have at least some knowledge of the local government area and of their environmental planning instrument cannot apply in the case of this LEP (it is over 500 pages with 73 different localities specified).

44. The Applicant submitted that for the above reasons the condition precedent to jurisdiction under cl 12 and cl 20 were not satisfied and the development consent is invalid.

Applicant's submissions on alternative argument 1(a) - "narrow" jurisdictional fact - Court would not find consistency in fact

45. In the alternative to the first primary argument above, the Applicant argued that the condition precedent in cl 20 (arising from cl 12(2)(b)) is a jurisdictional fact in the narrow sense of that term having the character of "objectivity" and "essentiality" identified by Spigelman CJ in Timbarra. That is, even if the Council did pose the correct question of law its conclusion on the cl 20 jurisdictional fact was not conclusive so that the Court may determine that fact for itself. The Court can determine the existence of the fact on different evidence to that before the Council. The planning evidence adduced by Mr Ingham is relevant on this issue. There is conflicting planning evidence from Ms Bindon and Mr Fleming for the Second Respondent.

46. The Applicant submitted that Mr Ingham's evidence should be accepted. He states that the development will operate and function as a retail shopping complex and is not consistent with the DFC of the Austlink Business park as it does not "integrate modern forms of industry, manufacturing, research, warehouses, offices and related services with the natural qualities of the locality and the adjacent National Park".

47. The town planning evidence of the Second Respondent repeats the errors in the material that was before the Council.

48. What is the meaning of "consistent with" as used in cl 12 and cl 20 of the LEP? The Applicant submitted that the Court would accept that the ordinary and natural meaning of the word is not confined to the notion of the proposed development "not being antipathetic" to the DFC of the locality; see Dem Gillespies at par 70, 71, 77 and 79 where Bignold J held that it can also mean "1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles" (see par 77). The proposed development for the purpose of a bulky goods retail centre, shops and restaurants in terms of the relevant purposes of development identified in the DFC does not agree with, is not accordant with, is not compatible with, and does not adhere to the specified uses of industry, manufacturing, research, warehouses, offices and related services.

Applicant's submissions on alternative argument 1(b) - conclusion of consistency not reasonably open (manifestly unreasonable)

49. The Applicant submitted that it was not reasonably open to the Council to conclude that the conditions precedent were satisfied. For the purposes of this argument it is necessary to assume Council proposed the correct question. The Applicant argued the Court would be satisfied that the Council's decision to grant development consent was manifestly unreasonable by reference to the description of the proposed development and the terms of the DFC of the C9 Locality. The relevant test of "consistency with" is that pronounced by Bignold J in Dem Gillespies. A conclusion of consistency with the DFC was not reasonably open to the Council in relation to this development on the material before it. This ground can relate only to the material that was before the Council, the Court cannot consider fresh evidence. By reference to that material there was no material from which a conclusion of consistency could reasonably be reached.

Applicant's submissions on alternative argument 1(c) - failure to consider requirement of consistency - misdirection within jurisdiction

50. An opinion on consistency (cl 12(3)(b) and cl 20) was not reasonably open to the Council on the material before it. In relation to cl 12(3)(a), the Council failed to consider the DFC. This is an error committed within jurisdiction. In order to consider a matter required by s 79C(1)(a)(i) of the EP&A Act in conjunction with cl 12(3)(a) of the LEP the decision maker was required to correctly identify the matter. If a mandatory relevant consideration is identified, then it is a matter wholly for the decision maker to determine the issue of the weight to be given to that matter. In this case the relevant matter was not identified at all because of misconstruction of the DFC so that there was a failure to consider the correct matter outright. Accordingly there can be no proper, genuine and realistic consideration as required: see Zhang v Canterbury City Council (2001) 115 LGERA 373; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291.

Council's submissions on argument 1 and alternative argument 1(a), (b), (c)

51. The Council submitted the development application was valid and the Council had jurisdiction to determine the development application. While there are preconditions to the grant of development consent, they do not go to jurisdiction. The essential precondition to consent is s 79C which requires a consent authority to take into consideration any environmental planning instrument, and hence, cl 12 and cl 20 of the LEP.

52. The summary in the report to Council which the Applicant criticised is an entirely appropriate summary of the LEP and reflects the proper consideration of the DFC statement. Overall it is a correct assessment of the application in that context, although the Council submits it does not have to be correct, simply considered. Even if there was an error it would be within jurisdiction and not reviewable by the Court. That same report also deals with development standards and the built form assessment specified in Locality C9. The consideration in the Council officer's report to Council of non-compliance with the general principles of development control are part of his assessment and the conclusions he reached were open to him. All of that assessment is within jurisdiction.

Is a decision under cl 12 and cl 20 a condition precedent?

53. Clause 12 states "before granting consent for development …". It does not refer to before considering the development application, or what procedure to follow in respect of the development application, but rather cl 12(3)(a) and (b) relate to the period before the final determination of the matter.

54. Clause 20(1) arises because the Category One development, the bulky goods shops, does not comply with all the specified development controls. The process of decision making under cl 20(1) is part and parcel of the Council's assessment in making its decision on the merits of the application. That is, it is not a question of whether there is jurisdiction to go on and consider the merits of the application, but part of the assessment of the development. It is not a precondition which goes to the exercise of Council's powers in terms of jurisdiction and cannot be a jurisdictional fact.

55. In Timbarra, Spigelman CJ specified that one must look at the particular statutory provision to decide where it fits in the process. The statements made in Timbarra support a conclusion that the decisions required of the Council in the LEP are within jurisdiction, not a jurisdictional fact. Decisions on cl 12 and cl 20 only pre-date the final decision and are considerations within jurisdiction. Furthermore, Hortis, Currey and Franklins did not deal with preconditions to jurisdiction. For example, in Currey, the clause was a precondition to the s 90 consideration but not a precondition to jurisdiction in the development consent at all.

56. Every development application in Warringah is subject to cl 12 and cl 20. This is further support for the fact that the factual issue raised is not a jurisdictional fact, but is a question of fact within jurisdiction such that the Council's consideration can be subject only to Wednesbury unreasonableness review. If the Applicant is correct then every development application which the Council must consider under the LEP will be subject to jurisdictional fact review which places an extremely onerous administrative burden on the Council.

What is the meaning of the DFC statement?

57. The heading "desired future character" means what it says and must be contrasted with land use in the next section of the locality statement. The DFC statement does not deal with the purposes of development as the Applicant submitted. Purposes are expressly dealt with in the land use section. The DFC is not equivalent to a zoning clause. The DFC deals with character, not purpose. Several of the identified uses in the first paragraph of the DFC are not in the Dictionary of the LEP and are not a use or a purpose of development under the LEP, for example "manufacturing", "research" or "modern forms of industry". The DFC serves a different purpose to the land use table. It is a subjective description and is "taken into account" in relation to Category One development under cl 12(3)(a) and used to determine "consistency with" for Category Two developments under cl 12(3)(b).

Second Respondent's submissions on argument 1 and alternative argument 1(a), (b), (c)

What is the meaning of consistency with the DFC statement?

58. Counsel for the Second Respondent submitted that the essence of the Applicant's case was what is the appropriate understanding of "consistency with" the DFC, particularly the first paragraph of the DFC in the C9 Locality Statement. The Applicant's case presupposes that that paragraph is a statement of land uses capable of occurring within that locality. If inconsistent with the first paragraph of that locality statement, a development is not possible even if it appears in Category One or Category Two in the land use part of the statement.

59. Pursuant to cl 12(3)(a), if a development only contains Category One development (and complies with all development standards under the LEP, such that cl 20 does not arise) consistency with the DFC is not required. All that is required is that before granting development consent consideration is given to the DFC. Because the site is constrained and has forced on the Second Respondent a design which to some degree fails to comply with the development standards and the design proposes 4% be allocated to shops and restaurants, which are Category Two development, then the extraordinary consequence proposed by the Applicant is that consistency is required as a matter of satisfaction or must be proved in fact in relation to cl 20. This leads to an absurd interpretation of the LEP. It is a principle of statutory interpretation that absurdities should be removed from the interpretation of a document if it is possible to do so rationally and sensibly.

60. The first part of the DFC for the C9 locality is not stating what will be in the Austlink Business Park but how the Austlink Business Park will relate to its surroundings. Accordingly these words should not be read as constraining the manner in which development in the Austlink Business Park can be approved. If the Applicant's contention is correct, then there would be no form of retailing allowed in the Austlink Business Park. (The Second Respondent's counsel does not accept the Council's submission that retailing could be approved as a related service). If the Applicant's submission is correct, the only permissible uses would be industry, manufacturing, research et cetera. Thus, the Applicant's approach to the first paragraph of the DFC renders many forms of Category One and Two development impossible to approve. This is emphasised by the difficulty in interpreting precisely the first part of the first paragraph of the DFC statement. For example, what is meant by "modern forms of industry, manufacturing"? There is no mention in Category One or Two of research establishments as a permissible land use.

61. The DFC is a statement of objectives but does not operate as a traditional land use table in defining appropriate development. The character of a development is determined by compliance with the second paragraph which deals with the built form amongst other matters. When a development application arises a Council will consider the land use table specified to find out if the development is permissible to see if the development application can be accepted. In the course of assessment, consideration is given to the DFC. In carrying out its function Council will comply with cl 12. If the development is Category One Council will comply with cl 12 by giving consideration to the DFC. If it is not Category One then the Council must determine satisfaction as to consistency. If the development is not in compliance with the specified development standards then cl 20 applies. If it does comply then that is the end of the matter.

62. While the notes which are contained in the LEP are specifically stated in cl 6 to not form part of the LEP it is useful to consider these. Clearly the land use tables do inform the issue of consistency particularly when cl 12(3)(a) is considered. This only requires the Council to consider the DFC for Category One, the reason being, as the note after cl 12 says (see par 9), because it is development that is presumed to be consistent with the DFC.

63. When other locality statements in the 73 localities are considered it is clear that the permissible land uses in Category One and Two include matters which could not possibly be within the DFC. A number of locality statements were referred to by way of illustration by the Second Respondent. The Second Respondent submitted that all have similar references which illustrate that the DFC does not have the effect of constraining the form of development that takes place in the locality. The form of development is governed generally by the second paragraph in the DFC in the C9 Locality Statement. The nature of the uses which can take place in the locality are controlled by the land use table. Applying this interpretation it is clear that the approach by the town planning consultants and the Council officers is warranted. The focus on the built form and land use tables, that is the physical aspects of the development and its permissibility, are the important issues, and to a large extent the only issues which have to be considered in dealing with consistency with the DFC, except to the extent in the C9 locality that it is important to address the question in relation to the first paragraph of the DFC of the integration with the natural qualities of the locality and adjacent National Park. The matters are clearly addressed in the material put before the Council.

How should cl 20 be interpreted?

64. The key to determining what is meant by consistency with the DFC under cl 20 is what is meant by "resulting" development. The word "resulting" must be given meaning. Clause 20 is essentially a SEPP1 provision in this instrument. It would be strange if that which is substituted for SEPP 1 had a markedly different effect from that for which it is substituted. Under SEPP 1 there is a focus on the difference between the non-compliance of the development proposed and whether the tests provided in cl 6 are met in relation to those changes. The word "resulting" should be interpreted to mean the development insofar as its character is affected by the non-compliance. The Council performs a similar function under cl 20 as if it were dealing with a SEPP 1 objection.

65. The only non-compliance in question here is that related to the built form, not to its use or purpose. Consequently, it is not legitimate for the Applicant to argue that the non-compliances are impermissible because the use or purpose of the development is, regardless of its form, not consistent with the DFC. The non-compliance for which "dispensation" is sought are unconnected with any issue of use or purpose. It is not the task of the Council in administering cl 20 to reassess issues of use and purpose, which it could approve pursuant to cl 12(3)(a), simply because the building's built form is non-compliant.

Is cl 20 a jurisdictional fact?

66. The Second Respondent submitted that if its submissions up to this point are accepted, the question of whether cl 20 is a jurisdictional fact does not arise. Further, the Second Respondent submitted that in order for a statement of fact to be a jurisdictional fact it must satisfy the tests in Timbarra and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, that (1) it is objectively determinable, and (2) the test of "essentiality".

67. In relation to essentiality this means a finding as a matter of law that the non-existence of the fact which is said to be jurisdictional demands a particular outcome in terms of validity of the decision. That is to be determined by a process of interpretation of the statute or other statutory measure which it is said creates the jurisdictional fact.

68. The wording in cl 20(1) does suggest objectivity but does not suggest essentiality. To determine essentiality, one must interpret the provision in question so as to obtain consistency with the language and purpose of all the provisions of the statute: Project Blue Sky at [69]. One must look at the LEP as a whole. To describe that part of cl 20 as creating a jurisdictional fact would be anomalous to the LEP as a whole. It would not just be setting the bar higher, as the Applicant argued, but much higher if this was a jurisdictional fact. It makes no sense to do this when there could theoretically be only minor forms of departure from development standards which result in cl 20 applying.

69. Various provisions in the LEP were referred to which set out the standard of test the Council must apply when assessing development applications, namely cl 12, 13, 14, 15, 16, 19 and 20. Although there is a difference in the form of words used in cl 20, simply because a provision is framed as if it gives rise to a jurisdictional fact, does not mean that it does. After looking at the whole LEP, it is not rational to conclude that a failure objectively to meet a standard of consistency in circumstances where cl 20 arises is fatal to the application.

70. It is important to consider other provisions in the LEP which would lead to the same conclusion. Under Pt 4 dealing with general purposes of development control (cl 38 - 83) the clauses contain numerous examples of the necessity for the assessor to exercise judgment or discretion, for example cl 38, 39 and 40. It would be strange if cl 20 meant that there had to be a state of jurisdictional fact in relation to consistency with the general principles of development control because cl 20 does require that be proved as a statement of objective fact. For example, it would be hard to establish as a matter of objective fact that glare would not unreasonably diminish amenity. Difficulties in applying jurisdictional fact where there is a choice of opinions were noted by Pearlman J in Plumb v Penrith City Council [2002] NSWLEC 223. It is clear that there are many concepts set out in the DFCs which are difficult to objectively determine, as would be required under cl 20 if the Applicant is correct.

Was the Council misdirected as to the operation of the DFC?

71. In relation to the Applicant's argument that the Council was misdirected as to the operation of the DFC by the material placed before it, there was only a necessity to address the first paragraph in the DFC in relation to the extent the proposed development would integrate with the national park because the provisions of the first paragraph so far as the general description of the types of use are subjugated to the land use table.

72. The Second Respondent's counsel also considered the passages in the material before the Council criticised by the Applicant (see par 35 - 36) and submitted that Council had advice before it upon which it could properly rely. Unless the material was factually wrong and jurisdictional fact is an issue, or it was manifestly unreasonable, that is the end of the matter. The material is factually correct and no errors are identified. Even if the advice of the Council officer was wrong, there is no evidence it affected the Council's deliberation. The Statement of Environmental Effects is not misleading to the Council and it had adequate material before it in deciding the matter (see par 43.1, 43.4, 43.6, 43.9). There is no general principle that where an administrative decision is made in circumstances where part of the information is wrong, the decision is thereby wrong. There was a great deal of other material before it in addition to that referred to by the Applicant which, together with the Council's common sense and local knowledge means the Council's decision was valid. The Court should not void a decision unless it is made on wrong principles (as opposed to facts).

Finding on argument 1

Are decisions under cl 12(3)(b) a condition precedent to the grant of development consent?

73. The Applicant argued in its primary argument that there are two conditions precedent to jurisdiction to the grant of the development consent in issue, one under cl 12(3) and one under cl 20(1). Although the principal ground at par 25 refers to cl 12(3)(a) and (b) as conditions precedent, the Applicant's submissions were directed to cl 12(3)(b) and I will only consider that subclause in cl 12(3). I consider the conditions precedent at issue must be satisfied before the Council can grant development consent.

74. The requirement under cl 12(3)(b) is that, for Category Two development, the Council must be satisfied that the development is consistent with the DFC before granting development consent. On the basis of Franklins and Schroders, both of which also consider wording based on the need to be satisfied with a certain matter before a council can grant development consent, this provision clearly contains a condition precedent to the exercise of the Council's power to grant development consent which must be satisfied by the Council before consent can be granted.

75. In Franklins the Court of Appeal had before it cl 32(2) of the Penrith Local Environmental Plan No 231 which provided:

Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies,

76. At [23] his Honour noted that cl 32(2) had the effect that the development was prohibited unless the Council formed the opinion required by that clause. At [28] his Honour stated:

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

(1995) 184 CLR 163 at 179 and

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

77. In Schroders the Court of Appeal was considering an appeal based on cl 9(3) of the Shoalhaven Local Environment Plan 1985 which provided:

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

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

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

[1999] NSWCA 134.

79. The wording in cl 12(3)(b) does suggest that the decision that before granting consent for development "the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant locality statement ", is a condition precedent to the exercise of the Council's power to grant development consent. This is also the view of Bignold J in Dem Gillespies. In Dem Gillespies Bignold J accepted (at [84]) that cl 12(3)(b) of the LEP:

requires as a condition precedent to the granting of development consent for a Category Two development (such as is the proposed development) the satisfaction by the consent authority that the development

described in the relevant locality statement.

How should cl 20(1) be interpreted?

80. The wording in cl 20(1) also suggests a condition precedent to the exercise of the consent authority's decision whether to grant development consent to non-complying development, the Category One development in this case.

81. I consider this is a conclusion which can also be based on the cases outlined above at par 75 - 79 although I note that the wording of cl 20 is different to cl 12(3)(b). I note the Applicant also argued in the alternative argument 1(a) that cl 20(1) gave rise to jurisdictional fact in the "narrow" sense, meaning, according to the Applicant, a jurisdictional fact which the Court itself must determine. I do not accept that argument for reasons set out at par 102 - 106. While the wording of cl 20(1) does not include the words "the consent authority must be satisfied" as in cl 12(3)(b), in the scheme of this LEP I consider cl 20(1) is also a condition precedent which must be satisfied by the Council before development consent can be granted.

82. I consider the Council's consideration of cl 12(3)(b) and cl 20 is within jurisdiction, but I do not accept the Council's argument that this means the only challenge available to this process is whether it was reasonable. The Court can consider whether the conditions precedent were satisfied in the material before the Council. While Stein J in Franklins (at [28]) refers to Spigelman CJ in Timbarra, the judgments in Hortis, Schroders or Franklins do not use the expression jurisdictional fact to describe the similar circumstances in those cases which are the basis of the Applicant's primary argument. I am not sure that describing each of the conditions precedent in question as jurisdictional facts in the broad sense is entirely accurate. The jurisdictional fact with which Timbarra was principally concerned was a fact which the Court could determine for itself as a preliminary fact, the determination of which was necessary to the exercise of jurisdiction. The conditions precedent in issue here are not of the same nature but must be satisfied by the Council before the Council can grant development consent.

83. The submission of the Second Respondent in relation to cl 20(1) that only the "resulting development", being that part of the development which does not comply with the development standards, must be considered when determining consistency with the DFC (par 64 - 65), is an interesting one. If correct, in this case, only the non compliances with the development standards of the bulky goods and shops and restaurants building, such as excess height and smaller than minimum boundary setbacks, would need to be considered.

84. The Applicant's argument on this point was that cl 20 should not be so limited because it would "write out" the DFC statement from consideration in circumstances where the Category One development did not comply with the relevant controls. I accept this argument because where there are large variations from the built form standards (as opposed to small variations which the Second Respondent's counsel relied on to support his submissions) the scheme of the LEP as found in cl 3(b), 12, 18 and 20 suggests that the DFC statement is important and should be considered for the whole of the development and not just in relation to the deviations from development standards.

85. If my conclusion on the application of cl 20 to Category One development is also applied to Category Two development the assessment of non complying Category Two development under cl 20 will not be substantially different to that under cl 12 (namely cl 12(1) and cl 12(3)(b)). What cl 20 does allow, however, is the approval of proposed development which does not comply with the development standards whether Category One or Two or Three, and specifies in what circumstances that may be done. The fact that an assessment of Category Two development under cl 12 and cl 20 is similar on the interpretation I have adopted does not incline me to change my view expressed in the previous paragraph on the operation of cl 20.

What does the DFC apply to?

86. I do not accept the Second Respondent's submission that the first paragraph of the DFC relates only to the integration with development in the surrounding area (see par 60). The wording of cl 3(b) (par 6) does not support this conclusion as it refers to "…the desired character of the localities that make up Warringah …". This is clear if other DFC statements are viewed. These only make sense if they are interpreted as referring to the area the subject of the locality statement. Such an interpretation also appears contrary to the precise purpose for which DFC statements were drafted, namely to define the character of a given locality, in this case the Austlink Business Park. I consider the DFC statement does apply to the particular area the subject of the locality to which it refers.

87. Much of the Applicant's argument has alleged that the first paragraph of the DFC statement is not correctly applied in the material which was presented to the Council, in other words, the correct question was not asked and answered in the report to council and the Statement of Environmental Effects. The Applicant submitted it was therefore not open to the Council to determine that the proposed development is consistent with the DFC statement. What does "The Austlink Business Park will integrate modern forms of industry, manufacturing, research, warehouses, offices and related services with the natural qualities of the locality and the adjacent national park" (the first paragraph of the DFC statement) mean in the context of this locality statement? This is a difficult question to answer. I do not think the question of whether the correct question was asked and answered in the material before Council can be answered by examining in isolation the treatment of the first part of the DFC statement in the material before the Council. It is necessary to consider the proper application of the DFC by considering the overall context of the C9 locality statement and the LEP and the material before the Council.

88. The references to the DFC in the LEP include the purposes of the plan at 3(b):

to describe the desired character of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places

…

89. Clause 18(2) provides:

Strict compliance with development standards, however, does not guarantee that the development is consistent with … the desired future character of the locality

90. These provisions together with cl 12(3)(a) and (b) and cl 20 emphasise the importance of the DFC statement in the locality statement.

91. The LEP does not otherwise provide any guidance on how the Locality Statements are to be interpreted as an aid to their construction. This is a major omission in my view as the drafting of the DFC statement for the C9 locality together with the land use section makes its precise construction as a legal instrument, which the Council is bound to consider (to the relevant level specified) under cl 12(3) and cl 20, problematic. The note the LEP contains (after cl 12) concerning Category One and Category Two developments is set out at par 9. This is not part of the LEP (see cl 6(2)), but presumably provides some indication of what the authors of the document intended or it would not be included at all.

92. The Applicant's case on the misdescription of this DFC statement focussed exclusively on the first half of the first sentence of the four paragraph DFC statement. This part of the DFC statement uses words and phrases which are not all defined in the LEP, for example, research, related services, manufacturing, modern forms of industry ("industry" is defined in the LEP). Nor is there an obvious overlap between all the developments specified in Category One and Category Two with the description "modern forms of industry, manufacturing, research, warehouses, offices and related services". The most obvious omission from the first paragraph of the DFC statement is retailing or a reference which clearly refers to bulky goods and other retail shopping, about which the development at issue here is entirely concerned. I do not think the phrase "and related services" can be considered to incorporate retailing on the scale of the proposed development in this case.

93. This lack of obvious overlap between the DFC statement and Category One and Category Two developments is repeated in a number of the other locality statements in relation to the relevant DFC and land use tables which the Second Respondent referred to in its submissions, suggesting this formulation is deliberate in the LEP.

94. I agree with the Council's submission that the DFC is a statement of the character of the locality generally rather than a statement of the purposes or uses intended for a particular site within that locality. It is not therefore necessary that every type of development which appears in Category One or Category Two be referred to explicitly in the DFC statement.

95. I do not fully accept the Second Respondent's submission that the Council's consideration must be heavily dictated by the fact that bulky goods shops are Category One development, and Category Two includes the retail shop component. The Note after cl 12, albeit not part of the LEP, is indicative of what the drafter intended, namely that Category One development is generally presumed to be consistent with the DFC and Category Two development may be consistent with the DFC. The fact a proposal is in a particular category of development can never be conclusive that it is consistent with the DFC. It is always required by the LEP that the DFC be considered (to the relevant level of satisfaction) for all three categories of development. This conclusion relates to both cl 12(3) and cl 20(1), however, it is particularly forceful at the cl 20(1) stage where the Council is considering a development that does not comply with the development standards.

Did the material before Council adequately characterise the DFC in the C9 Locality Statement to enable a decision on whether the proposal is "consistent with" the DFC?

96. No other part of the locality statement is alleged by the Applicant to have been incorrectly characterised except for the first paragraph of the DFC. The Applicant's submissions focussed on the statements made in the report to Council to the effect that the locality is suitable as a "mixed use cluster of bulky goods, general retailing, warehouse and light industrial uses", an "emerging cluster of bulky goods retailing and employment generating development at the Austlink Business Park" amongst others (see (a) - (f) at par 36) because these statements do not reflect accurately the first part of the DFC statement.

97. Given the imprecise wording of the first part of the first paragraph of the DFC statement (namely "The Austlink Business Park will … related services") and the context of this LEP, I do not agree with the Applicant's argument that I should find that cl 12(3)(b) and cl 20(1) were not satisfied by the Council. While I can agree that the comments made in the report to Council do not appear to precisely reflect the wording of the first part of the first paragraph of the DFC in a couple of lines (see the previous paragraph) there is clearly considerable room for interpretation of this particular DFC statement in the context of the land use categories specified in the C9 Locality Statement. The overall description of the consistency of the proposed development with the DFC statement in the Council officer's report and the Statement of Environmental Effects is sufficiently related to the C9 Locality Statement to demonstrate that the Council was aware of the need to be satisfied and was able to be satisfied as to the consistency with the DFC required by cl 12(3)(b) and cl 20(1) and was able to properly consider the DFC as required by cl 12(3)(a).

98. The need to address cl 12(3)(b) and cl 20(1) is clearly referred to in the material placed before the Council. This case is not the same as Hortis, that is, a failure to have any regard at all to a condition precedent under cl 20 or cl 12.

99. Submissions were put by the Applicant concerning the meaning of "consistent with" mainly in the context of the alternative argument 1(a) with some reference to it under this argument. The issue does arise in relation to this argument The Applicant relied on the comments of Bignold J in Dem Gillespies to the effect that the meaning in the Macquarie Dictionary of "1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistency adhering to the same principles, course etc." was the correct approach. Other judgments which have referred to this question are set out in my decision of Mackenzie v Warringah Council [2002] NSWLEC 131 which is referred to in Dem Gillespies as follows at [68]:

The application of the term "consistency" has been addressed by the Court on a number of occasions and was found to mean not antipathetic, nor incompatible or inconsistent with. (See Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27), Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 (per Clarke JA at 192), Bodyline Spa & Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432 (at 439), Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190, and Kanne Pty Ltd v Botany Bay City Council [2001] NSWLEC 163 (at par [25] - [28])).

100. I do not consider it is necessary to examine further what is the correct approach to "consistent with" in this judgment. On the material presented to Council it was able to be satisfied as to consistency on any of the definitions applied to that term as set out in the previous paragraph.

Conclusion on primary argument

101. The Applicant has not succeeded in relation to its primary argument.

Finding on Subsidiary argument 1(a)

102. In my view cl 20(1) does not give rise to a jurisdictional fact in the "narrow sense" (as the Applicant referred to it) as identified in Timbarra.

103. In Timbarra Spigelman J (Mason P and Meagher JA agreeing) stated at [37]:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g.

(1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ('essentiality'). (

[1998] HCA 28 at [91]-[93]).

104. At [40] – [42] his Honour continued:

Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts.

Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig

3rd ed, 1994, 368-370;

(1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult.

105. Timbarra sets out those factors which can be applied to determine if a jurisdictional fact exists. The wording of cl 20 may suggest an objective test as it states "provided the resulting development is consistent with … the desired future character of the locality …". There is no suggestion that "satisfaction" by the Council about a matter is required, as under cl 12(3)(b). I consider however the wording "consistent with … the DFC" is not a fact about which there can be a clearly objective determination. The application of cl 20 to the DFC in the C9 Locality Statement, particularly given the imprecise wording in the first part of the DFC, does not suggest a readily identifiable objective analysis which the court could apply in my view. Further I agree with the submissions of the Second Respondent that the test of essentiality and objectivity identified in Timbarra is not met in the circumstances of this LEP (see par 67 - 70).

106. It is also useful to consider Pearlman J's decision in Plumb v Penrith City Council where she reviews the decision in Timbarra. Relying on Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 her Honour emphasises that the key issue to ask in determining whether there is a jurisdictional fact is what enlivens the power of a council to grant development consent, namely the receipt of a valid development application (at [17]). Applying that reasoning to this LEP I do not consider the Council's power is "enlivened" in the sense referred to by Pearlman J by the obligations imposed on it under cl 20. The Council already has jurisdiction at the point it considers cl 20.

Finding on Subsidiary argument 1(b)

107. I do not consider the Council has acted unreasonably in concluding that the conditions precedent were satisfied. It was open to the Council to conclude on the basis of the material before it that the proposed development was consistent with the DFC statement. I have already held there was material before the Council to enable it to be satisfied (par 97). My finding on "consistency with" under cl 12(3)(b) and cl 20(1) at par 99 apply here. The Applicant has not succeeded on argument 1(b).

Finding on Subsidiary argument 1(c)

108. In relation to the Applicant's primary argument I held that cl 12(3)(b) and cl 20(1) are conditions precedent to the Council's exercise of its powers but I questioned whether the clauses were jurisdictional facts in the broad sense (as the Applicant referred to them). Argument 1(c) is theoretically open to the Applicant. It is clear from my reasoning and conclusion at par 87 -100 that the material before the Council adequately characterises the DFC in the C9 Locality statement. An opinion as to consistency under cl 12(3)(b) and cl 20(1) was reasonably open as was consideration of the DFC under cl 12(3)(a). I consider there was proper, genuine and realistic consideration by the Council, as required in Zhang. The Applicant has not succeeded on argument 1(c).

Argument 2 - failure to consider economic impact in the locality

Applicant's submissions

109. Section 79C(1)(b) of the EP&A Act imposes a mandatory relevant consideration on the consent authority to consider the likely impacts of the development, including environmental impacts, on both the natural and built environments, and social and economic impacts in the locality.

110. The proposed development comprises an extremely large bulky goods retail centre together with retail shops comprising 4% of the proposal. Accordingly, it is plain that economic impacts in the locality were a relevant consideration and an essential part of the issues to be considered under s 79C. Economic impact in the locality, as recognised by Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 383, is a matter separate and distinct from competition between individual businesses. Economic impact in a locality (for example, marginalizing other developments in the locality which provide a facility presently enjoyed by the community) "is a proper consideration to be taken into account as a matter of town planning".

111. The Court would infer from the agreed bundle that four documents were placed before the Council which mentioned (directly or indirectly) potential economic impact. Those documents are:

(i) the market demand analysis prepared by Leyshon Consulting Pty Ltd (the market demand analysis) (Tab 8 of the agreed bundle),

(ii) the letter on behalf of Lend Lease (Tab 18 of the agreed bundle),

(iii) the letter from JBA dated 22 January 2002 (Tab 21 of the agreed bundle), and

(iv) the report to the Council (Tab 26 of the agreed bundle).

112. The market demand analysis titled "Market Assessment - Proposed Bulky Goods Complex, Belrose" does not assess the economic impacts of the proposed development in the locality. Instead, the document identifies the potential for success of the proposed development itself. This is plain from the description of the objectives of the report at p 2 (section 1.2) which identifies the purposes of the report. None of those purposes refer, directly or indirectly, to the economic impacts of the proposed development in the locality. For this purpose, the relevant "locality" may properly be inferred by the Court to be the extensive trade area of the Pittwater, Warringah, Ku-ring-Gai, Hornsby and Willoughby local government areas - each of which contains retail facilities including large shopping centres, department stores and the like expressly excluded from the market demand analysis.

113. There is no analysis, moreover, of the potential impacts of the proposed development by reference to the matters of concern to Mr Ingham, as identified in par 22 - 29 of his affidavit sworn 21 February 2003, namely, the absence of specification of the proposed uses within bulky goods shops, combined with the numerous small tenancy areas, would lead to the bulky goods retail centre functioning, in practice, as a retail shopping centre.

114. The market demand analysis, therefore, did not place any material before the Council by which the Council could consider the economic impact of the proposed development in the locality. It addressed only the market share which the proposed development might successfully attract, not the impacts that attraction might have elsewhere. Section 79C(1)(b) of the EP&A Act requires consideration of the impacts of the proposed development on the locality, not the success of the proposed development.

115. The letter of objection on behalf of Lend Lease Retail dated 14 December 2001 does not itself provide any economic impact assessment. Instead, that document prepared by a town planning consultant who had reviewed the documents in respect of the development application, expressly called for provision of "an economic impact assessment of the proposed retail uses on existing commercial centres and retailers in the region". The letter requested that the Council carefully consider that request. As noted above, the report to the Council, in summarising the objection, did not refer in any way to that request having been made.

116. The JBA letter dated 22 January 2002 (Tab 21) addressed the issue of "prejudicing the viability of commercial centres" (at p 9 - 10) on the basis that while economic effects on other retail centres are often considered, a number of cases make clear that mere competition between trade competitors was not a relevant planning matter. In making those statements, however, the JBA letter failed to identify that each of the cases to which reference is made at p 9 - 10 held that economic impacts in the locality were a proper planning consideration. In summary, the JBA letter:

(a) acknowledges that there will be a clear and inevitable adverse impact from the proposed development;

(b) identifies that that adverse impact will be on "traders"; and

(c) fails to identify who those "traders" may be, where they may be located, what structural role they may play in existing established centres or any consequential impacts of the granting of consent to the proposed development on the continued viability and functioning of those centres as part of the retail hierarchy.

117. The Applicant submitted that the report to Council dealt with the issue of economic impact indirectly (see B218, B222, B223 Tab 26), but the officer's assessment (if it can be called that) suffered from numerous defects, particularly:

(a) given that the assessment of the impact of the retail shops is not based upon any information, it is mere assertion at best;

(b) the assessment did not take into account or address the economic impacts of the bulky goods component of the development;

(c) the assessment, in dealing with the objections, failed to note to the Council that one of the two objectors had specifically called for an economic impact assessment; and

(d) on the basis of no evidence disclosed in the report, an assertion is made that the proposed shops (that is, the retail shops) would not result in any significant impact on the viability of other centres in the Warringah local government area, thereby disregarding the economic impacts on the other parts of the relevant "locality" for this development given its trade area.

118. The Applicant submitted the economic impact of the proposed development in the locality, in accordance with s 79C, remained wholly at large.

119. The Applicant argues that this was not a case where competing economic impact assessments were placed before the Council on which a decision could be made. A finding of fact which is made in the absence of evidence constitutes an error of law: see Bruce v Cole (1998) 45 NSWLR 163 at 187 - 188.

120. In circumstances where there is no evidence before the Council at all of the economic impact of the proposed development in the locality, the Court could not draw any inference that the Council considered the economic impact in the locality including by reference to the presumed knowledge of councillors of their local area. The Applicant relied on comments by Spigelman CJ in Hill v Green (1999) 48 NSWLR 161 that there is no common law requirement of logical reasoning, but that conclusion must depend on the statutory context (at 174). His Honour continued at 174 - 5:

In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision maker, the Courts should approach the construction of the statute or regulation with a presumption that the Parliament or the author of the regulation intended the decision maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words.

121. The circumstances are that there was no information addressing the issue before the Council, the proposed development potentially draws trade from a large area including areas well outside the local government area where councillors may be presumed to have some local knowledge and there is no assessment of the likely uses within the bulky goods component of the proposed development because the development application does not nominate those uses. In these circumstances the inference ought be drawn that the Council did not take into consideration the economic impacts of the proposed development in the locality contrary to s 79C of the EP&A Act.

122. A failure to consider a mandatory matter which was material operates to invalidate the consent: Project Blue Sky.

Council's submissions

123. In relation to the Applicant's case concerning economic impact the Council made the following submissions.

124. There is no suggestion that the development application for this development is invalid. The Council clearly has jurisdiction to deal with the development application. In doing this it must satisfy the essential preconditions as set out in s 79C of the EP&A Act which requires that the consent authority take into account various matters. The Council must consider the economic impact of the development under subsection (1)(b). All that section requires is consideration. No further complex assessment is required.

125. The report to Council which was referred to at length by the Applicant's counsel demonstrates that all necessary material dealing with economic impact was part of all the material which was constructively before the Council. Further, the Statement of Environmental Effects clearly contains material concerning economic impacts.

126. Within the report to Council (at B 217 Tab 26) there is consideration of economic impacts within the draft SEPP 66 context. There are also references which include the fact that the development will reinforce the emerging cluster of bulky goods retailing and employment generating development of the Austlink Business Park. There is also a reference which states that if an excessive amount of general retailing were to take place at any site at Austlink, this may prejudice the viability of other competing centres in Warringah and beyond. Condition 35 limits the floor space of shops and restaurants to be provided and specifies an audit condition to ensure that the floor space of "shops" and restaurants is limited to the areas specified in plans attached to the development consent.

127. The fact that the market demand analysis focuses on the demand for the proposed development does not stop it being relevant to Council's consideration of economic impact more broadly. The analysis discusses the economic climate in which such a facility is to be built. It is planned that this centre will deal with an untapped demand because there is no existing centre in this or the surrounding local government areas. All of this material is relevant to support an assessment undertaken by the Council.

128. There is no suggestion that the Council's consideration must be on the same basis as Fabcot. In that case Lloyd J considered that a particular development threatened the viability of an entire shopping centre precinct and held this was relevant on a merits assessment. It does not matter if a competitor loses a few customers, but if the viability of a centre were threatened, that is a matter for consideration. There is no evidence that is the case here.

129. There is no obligation on the Council to get further material just because an objector states that an economic assessment of the impact on competitors is required. It may lead to a less comprehensive process if this is not done but does not mean that the process is invalid. The Council could validly determine this development application as there was sufficient consideration of economic impact to satisfy s 79C. Further, the councillors on the Council do come with knowledge of local conditions including shopping centres in the local government area. Councillors are entitled to take this into account in their consideration.

130. In Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60 Stein J set out the matters which it was valid for the Council to take into account in its consideration of a matter. This case was a judicial review challenge which involved inter alia the Council's consideration of the economic impact of a development. The matters identified by Stein J include local knowledge. Consideration of an economic issue can be covered in different contexts (draft SEPP 66 in this case) and does not need to be considered under a specific heading. The report to Council clearly does deal with economic issues. Further the failure to note every point raised by objectors does not invalidate the consent.

Second Respondent's submissions

131. The Council's submissions on the adequacy of consideration of economic effects are adopted. There was ample material before the Council in relation to economic impacts, and Council clearly considered it. The correct question for the Court is, was it reasonably open to Council to grant consent having regard to its consideration of the information before it on economic impact? The Applicant said there was no material on which Council could analyse the economic impact. The position here is consistent with the decision in Lakeside Plaza where Stein J said that there had been sufficient consideration of the economic impacts in that case. The Council is normally not in a position to undertake its own inquiry concerning economic impacts. This is not a situation equivalent to Fabcot where in Class 1 proceedings Lloyd J held that the building of the supermarket would have a deleterious effect on the whole of a shopping centre near it in South Windsor.

132. In considering the objections from Lend Lease in which concern was raised about the establishment of retail shops on the site there was a response from JBA Planning which directly responded to that objection. Further the Council was entitled to accept the market demand analysis which considered the extent to which bulky goods retail sites would be impacted on in the locality.

133. The Council did not need to make the Applicant get another report when this was the first such centre in four local government areas and the nearest competing development was kilometres away. Many things might have been possibly considered, but this was a new development in an area presently unserviced by this type of development. Council would have known that to introduce a bulky goods development into this area would have some financial effects on other retailers in the location. This would have been taken into account as part of the councillors' ordinary understanding of the local government and surrounding area in light of the Leyshon report. The Council report summarised the issues including those raised by objectors. There is a condition imposed which is directed to ensure that the shops and restaurants are limited to 2,500 square metres and that there is an audit of the retail sectors annually to ensure that these are contained. This demonstrates that Council had adequate regard to these matters under s 79C and there was clearly enough material to justify a conclusion that the impact did not warrant refusal.

Finding on argument 2

134. I accept the Applicant's arguments that the Council's consideration of economic impact in the locality is deficient in the context of this particular development application based on the deficiencies identified by the Applicant at par 110 - 121. It is not necessary that it show that the situation such as applied in Fabcot is the case here. It is sufficient to show that material relevant to the Council's consideration on a key aspect of the proposed development which was required to be considered under s 79C of the EP&A Act, namely economic impact on the locality, was not present in the material before the Council in this case.

135. I note that the Respondents relied on Lakeside Plaza and the reference by Stein J to the fact that Council and its officers "do not come to an application such as the present one devoid of any knowledge of the subject matter". That was, however, only one of the factors his Honour took into account. Furthermore, in that case his Honour held there clearly was material before the Council which it could consider and it clearly considered it. The same cannot be said here. The circumstances of Lakeside Plaza are distinguishable from the facts of this case to such an extent that the context for Stein J's reasoning does not apply here.

136. The issue of economic impact on the locality is never identified as a relevant one for the Council, that is clear from the report to Council. Furthermore, as I have already stated, there was no material before the Council relevant to such a consideration. The inference therefore arises that the Council did not direct its attention to a matter which it was bound to consider under s 79C of the EP&A Act. Such a failure is compounded by the extremely large size of this development which includes retail shopping. While the retail shopping may only be a small part of the proposal it is not insignificant. The bulky goods component is clearly substantial. It is not adequate to say that because no similar development exists in this area that the Council can be assumed to know what the impact on traders in the locality is likely to be. This suggests such information was essential for the proper consideration of the development application. Such a failure does invalidate the Council's development consent.

137. For the reasons given above, the Applicant has failed on argument 1 and subsidiary arguments 1(a), (b) and (c). The Applicant is successful on argument 2. The Second Respondent indicated at the hearing that if the Applicant was successful in any of its arguments the Second Respondent would like to put arguments to the Court in relation to whether, in the exercise of its discretion, the Court should grant relief to the Applicant. As no argument has been heard on this issue I will not make any declarations or orders at this stage. I would also intend to reserve the question of costs but will not make formal orders to that effect in case the parties wish to make submissions on costs.

CITATION:	Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145
PARTIES:	APPLICANT Centro Properties Ltd FIRST RESPONDENT Warringah Council SECOND RESPONDENT Cornerstone Property Group Pty Ltd
FILE NUMBER(S):	40045 of 2003
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- whether cl 12(3)(b) and cl 20(1) of the Warringah Local Environmental Plan 2000 are conditions precedent - whether cl 20 is a jurisdictional fact Judicial review :- whether the material before Council adequately characterised the Desired Future Character Statement for the C9 Locality to enable a determination of whether the proposal is "consistent with" the Desired Future Character in determining to grant development consent - whether the conditions precedent in cl 12(3)(b) and cl 20(1) relating to a finding of consistency of the proposal with the desired future character were satisfied - whether the conclusion of consistency with the Desired Future Character was manifestly unreasonable - whether the Council failed to consider the requirement of consistency with the Desired Future Character - whether the Council failed to consider the economic impact in the locality as required by s 79C(1)(b)
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 34(1), s 79C State Environmental Planning Policy No 1 Draft State Environmental Planning Policy No 66 Warringah Local Environment Plan 2000 cl 3, cl 6, cl 7, cl 10, cl 11, cl 12, cl 14, cl 18, cl 20, C9 Locality Statement
CASES CITED:	Bruce v Cole (1998) 45 NSWLR 163; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135; Craig v South Australia (1995) 184 CLR 163; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Dem Gillespies v Warringah Council [2002] NSWLEC 224; ex parte Hebburn; re Kearsley Shire Council (1947) 47 SR (NSW) 416; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; Franklins Limited v Penrith City Council [1999] NSWCA 134; Hill v Green (1999) 48 NSWLR 161; Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577; Plumb v Penrith City Council [2002] NSWLEC 223; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74; Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	5, 6/03/2003
DATE OF JUDGMENT:	07/02/2003
LEGAL REPRESENTATIVES:	APPLICANT Ms J Jagot (barrister) SOLICITORS Mallesons Stephen Jacques FIRST RESPONDENT Mr SB Austin (barrister) SOLICITORS Wilshire Webb SECOND RESPONDENT Mr J Ayling SC SOLICITORS Staunton Beattie