Centro Properties Ltd v Hurstville City Council

[2004] NSWLEC 401

Land and Environment Court

of New South Wales

CITATION:

Centro Properties Limited v Hurstville City Council & Anor [2004] NSWLEC 401

PARTIES:

Centro Properties Limited (Appl)
Hurstville City Council (1R)
Dimitrios Tsagias and Giannoula Tsagias (2R)

FILE NUMBER(S):

40227 of 2004

CORAM:

McClellan CJ

KEY ISSUES:

Development Consent :- Validity
Cinema and retail complex
Whether failure to take into consideration a relevant matter
Carltona principle
Presumption of regularity
Council officer's report
Failure to take into consideration a clause of a development control plan
Satisfaction of a condition precedent in a local environmental plan

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)

CASES CITED:

Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86;
Bushell v Environment Secretary [1981] AC 75;
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560;
Centro Properties Ltd v Warringah Council (No 2) 2003 133 LGERA 45;
Codlea v Byron Shire Council (1999) 105 LGERA 370;
Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340 ;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723;
Franklins Limited v Penrith City Council [1999] NSWCA 134;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Hill v Woollahra Municipal Council (2003) 127 LGERA 7;
In R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157;
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 ;
Local Government Board v Arlidge [1915] AC 120;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 ;
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.;
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154;
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31;;
Morris v Kanssen [1946] AC 459;
O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1;
Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28;
Parramatta City Council v Hale (1982) 47 LGRA 319;
Selby v Pennings (1998) 102 LGERA 253;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING:

15 June 2004

DATE OF JUDGMENT:

08/12/2004

LEGAL REPRESENTATIVES:

J Ayling SC (Appl)
Mallesons Stephen Jaques (Solicitors - Appl)

P Rigg (1R)
Deacons (Solicitors 1R)

P Tomasetti (2R)
N J Papallo (Solicitors 2R)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

THURSDAY 12 AUGUST 2004

40227/04 CENTRO PROPERTIES LIMITED v HURSTVILLE CITY COUNCIL & ANOR

JUDGMENT

1 HIS HONOUR: The applicant, Centro Properties Limited, seeks a declaration that development consent No 20020252 issued by the first respondent, Hurstville City Council ("the Council"), is invalid and a consequential order restraining the second respondents from acting upon that consent.

2 The consent relates to a proposal for a mixed ten cinema and retail complex with an open air plaza. The land the subject of the consent is comprised of Lots 1 and 2 in Deposited Plan 506683, Lots 2 and 3 in Deposited Plan 215934, and Lots 42 and 43 in Deposited Plan 3315. Together, the land is known as 443-453 King Georges Road, Beverly Hills ("the land"). The land is located to the west of Beverley Hills railway station and is bounded to the north by a railway line, to the south by residential apartments and Edgbaston Road, to the east by King Georges Road, and to the west by Hampden Lane which contains a number of residential apartments.

3 On or about 8 April 2002, United Leisure Investments Pty Ltd lodged a development application (DA 252/2002) relating to the land with the Council ("the Original Development Application"). The Original Development Application sought consent for the erection of eight cinemas, a retail centre, undercover parking for 62 cars, and associated service and loading facilities.

4 At the same time as the Original Development Application was made, another development application was made to the Council for a mixed use development with a 506 space car park on Council owned land at 2-2a Edgbaston Road and 409 Georges River Road, Beverly Hills ("Edgbaston Road Development Application"). It was proposed that some of the car parking spaces in the proposed Edgbaston Road Development would be used in conjunction with the development the subject of the Original Development Application. By this means, the proposal that only 62 car spaces would be provided on the land was made acceptable. Having regard to the traffic generating potential of the development, many more spaces would otherwise have been required.

5 The Council retained the planning firm Scott Carver Urban Planning to prepare an assessment report of both the Original Development Application and the Edgbaston Road Development Application ("Scott Carver Report").

6 Another (undated) report was prepared by Mr P Thomas, Supervising Senior Planner with the Council. That report was prepared for the purpose of bringing the Original Development Application and the Edgbaston Road Development Application to the Council for determination. A copy of the Scott Carver Report was attached to Mr Thomas' report.

7 On 18 December 2002 the Council resolved that the Original Development Application be deferred to “enable the applicant to prepare a suitable proposal to address the shortfall in the on-site parking provision and traffic problems in the adjoining streets and lanes.”

8 Some months later on 12 June 2003, United Leisure Investments Pty Ltd submitted to the Council an amendment to the Original Development Application (“Amended Development Application”). The Amended Development Application provided for ten cinemas, ground floor retail facilities and basement parking on the site for 212 cars instead of the original 62.

9 In preparation for the Council’s meeting to determine the Amended Development Application, a Senior Town Planner with the Council, Ms T Christy, prepared a report. The Scott Carver Report was incorporated into Ms Christy's report.

10 The Council’s Development Assessment Committee resolved to grant conditional consent to the Amended Development Application. The Council endorsed this decision and on 6 February 2004 granted consent pursuant to s 81 of the Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act").

11 In its challenge to the validity of this consent, the applicant identifies three alleged problems, each of which it submits justify the relief sought. They are that:

(i) the Council failed to consider the likely noise impacts in the locality, particularly on the residential buildings fronting Hampden Lane, of on-site parking in the locality that will be caused by the proposed development consent, thereby breaching s 79C(1)(b) of the EP&A Act; and

(ii) the Council failed to take into consideration the requirements of Development Control Plan No 12 – Beverly Hills (“DCP No 12”), thereby breaching s 79C(1)(a)(iii) of the EP&A Act . DCP No 12 specifies the need for Geotechnical, Structural and Hydraulic Reports to accompany any proposal for underground parking (cl 4.1.17), yet the applicant maintains that no geotechnical report accompanied either the Original Development Application or the Amended Development Application; and

(iii) the Council failed to satisfy itself of the requirements in cl 15 of the Hurstville Local Environment Plan 1994 (“LEP”) before granting development consent. Clause 15 of the LEP provides that, before granting development consent, the Council must be satisfied that the facilities for the supply of water and for the removal or disposal of sewage and drainage are available.

Some relevant facts

12 The site of the proposed development is located within a generally busy area. Along King Georges Road there are a number of restaurants and other facilities which attract many people, including significant numbers during the evening. King Georges Road is heavily trafficked, generating noise both during the day and at night time.

13 The proposed development will replace an existing modest cinema complex on the site. Although pedestrian access will, of course, be available from King Georges Road, vehicular access will be confined to Hampden Lane. That laneway presently services a number of shops and restaurants and an hotel fronting King Georges Road, as well as giving access to the residential flats on the other side of the lane. Because of the prospective volume of traffic to the proposed cinema car park, when approving the development, the Council decided to confine the traffic in the laneway to a one way movement and required a variable message parking sign at the intersection of Edgbaston Road and Hampden Lane that electronically indicates the number of car spaces available in the cinema car park.

14 The configuration of the lane, the development along King Georges Road and the residential flat buildings to the rear suggest that noise generated from cars in Hampden Lane would be unlikely to readily dissipate and could, directly or by reflection from existing buildings, impact upon the neighbouring residential apartments. This was appreciated by Scott Carver, who in its November 2002 report on the Original Development Application said in relation to noise:

"It is envisaged that the major noise sources which may potentially impact upon the proposal are from traffic entering and leaving the proposed basement car park, traffic on King Georges Road and from cinema patrons entering and exiting the cinemas. The most significant noise impact which may result from the proposed development is on the adjoining residential units to the west of Hampden Lane.
Although it is proposed to only provide sixty on site parking spaces, this figure may realistically increase if suitable parking arrangements are not secured for the proposal elsewhere. Should an increase in parking be proposed for the subject site, a noise impact study would be required to be prepared to the satisfaction of Council.
The Acoustic and Vibration Impact Assessment Report prepared by Vipac Engineers and Scientists made specific recommendations in terms of noise minimisation, which are addressed as conditions of development consent."

15 As I have indicated, the Original Development Application provided for 62 cars. It was not pursued and the Amended Development Application sought approval for 212 car spaces in the car park. Although the Scott Carver Report was again placed before the Council, no investigation was undertaken of the potential noise impact of the additional motor vehicles. However, the comment is made by the reporting Council officer, Ms Christy, that:

"to reacquaint councillors the previous report prepared by the planning consultants has been reproduced further in this report. The issues discussed in that previous report are still valid for this proposal."

16 The Original Development Application was publicly notified. There were 380 submissions in opposition to it and 682 submissions in favour of it.

17 There were 17 separate objections to the Amended Development Application. When reporting on the Amended Development Application, Ms Christy noted each objection and briefly commented upon it. One matter noted was "concerns in relation to the noise levels on nearby residents." The officer's comment was:

" Comment: this is a valid concern. The building will need to be constructed such that the cinema noise has no impact on those nearby residents. Also, the loading hours will need to be limited and this will be a condition of consent. These hours will be restricted to between 7 am and 7 pm Monday to Saturdays only."

18 Both the Original Development Application and the Amended Development Application were accompanied by a Statement of Environmental Effects. With respect to noise from cars, the following comment was made in both Statements:

“Car noise from parking is likely to decline due to all proposed parking on the site being contained in a basement. Existing parking on the site is all at grade directly off the laneway. Noise from the arterial road may also reduce due to the more significant building buffer proposed that will shield some of the residential development to the west of the site from the arterial road noise.
The control of noise from people leaving from and arriving at the cinemas is more difficult to control, however the operators propose to advise patrons of their responsibilities regarding noise at regular intervals and this will also be signposted at relevant locations, including the car parks.”

19 Elsewhere in the later Statement of Environmental Effects, the following statement was made:

“The only impact of any consequence is the additional traffic in Hampden Land resulting from the provision of parking on the site. This however is considered sustainable in the traffic assessment."

20 This, of course, says nothing about the impact of noise from the increased vehicle movements in Hampden Lane.

21 The inevitable conclusion from an examination of the material before the Council is that, although the Scott Carver Report recognised that noise from cars in Hampden Lane could be a problem, if the number of off street car spaces was increased above the original 62, it was not analysed in any report to the Council. Indeed, although concerns about noise are noted in the second report, they were not expressed in terms of car noise from increased traffic in the laneway.

22 The need to consider the impact of noise from cars was also identified by the present applicant which was an objector to the Amended Development application. Ricky Steinkay, an urban planner with Urbis Keys Young, was retained to make a submission which included the following:

"Further acoustic assessment is required, to accurately detail the proposed impacts of the car park operations, particularly late at night. The acoustic study should demonstrate that the proposed basement car park will not produce a negative amenity impact on the surrounding residential area."

The planning officer's evidence

23 In the course of these proceedings, the Council sought to tender evidence from Ms Christy, the Council's planning officer, who, as I have already indicated, prepared the report to the council in relation to the Amended Development Application.

24 In her affidavit dated 11 May 2004, Ms Christy deposes to having been aware of the issue of noise impact from vehicles entering and exiting the proposed car park and of having had regard to the Scott Carver Report. In relation to the Scott Carver Report, Ms Christy stated:

“The report noted potential noise impacts which may result from the development would impact on the adjoining residential units to the west of Hampden Lane. The report suggested that should there be an increase in parking for the subject site then a noise impact study would be required to the satisfaction of Council.”

25 Ms Christy also noted that she had recourse to the later July 2003 Statement of Environmental Effects prepared by Aberline Associates and the objection to the Amended Development Application dated 21 July 2003 submitted by Ricky Stainkey.

26 Ms Christy further commented in her affidavit of 11 May 2004:

“I was also aware that the proposed ramp grade into and out of the car park would be unlikely to create excessive noise by cars revving their engines in order to negotiate the gradient. In giving consideration to the fact that this proposed development will have an open plaza area on the north side of the property, that the lane to which the car parking will be accessed is narrow and as a consequence cars are unlikely to drive at excessive speeds, there is also a stop sign approximately 30 metres along the lane from the exit ramp. Most pedestrians are unlikely to walk along the laneway at night and would prefer to walk along King Georges Road which is open, safer and has a proper footpath and that the noise of car doors and noisy farewells are to be contained within the basement carpark, I formed the view that the noise created by vehicles entering and exiting the car park would not cause excessive noise disturbance to the residents of Hampden Street.
. . . I consider that Condition 14 and Condition 15 of the consent are suitable conditions to impose to limit the opportunity of noise disturbance to residents in Hampden Street, particularly at night.”

27 The Council submits that this evidence can be accepted and relied upon to demonstrate that although not considered by the councillors, the responsible officer did nevertheless consider possible noise impacts from traffic and recommended approval. It is submitted that the Council is entitled to accept the Council officer's recommendation to discharge the Council's duty to consider the matter of noise impact. It was submitted that this follows from the principle commonly referred to as the "Carltona principle": see Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. I deal with this submission later.

The Council's decision and the basis for challenge

28 Section 79C(1) of the EP&A Act provides that in determining a development application a consent authority:

"is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and
(iii) any development control plan, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest."

29 The section came into force following amendments made to the Act in 1997. The obligations in relation to the consideration of a development application were formerly provided in s 90 of the Act, which provided a more extensive but no less comprehensive statement of matters which councils were required to consider.

30 A council is a collegiate body which may act by delegating its powers to a committee or an officer of the council. A challenge to a decision made by a delegate will involve consideration of the delegate's processes to determine if the decision is valid. However, when the decision under challenge is that of the council, it is necessary to examine the process of the council in order to determine whether the statutory obligation has been discharged.

31 The decision-making process of councils was comprehensively considered by the Court of Appeal in Parramatta City Council v Hale (1982) 47 LGRA 319. Although that case involved consideration of the decision-making process pursuant to s 90, the principles are the same with respect to a decision made pursuant to s 79C(1).

32 The issue in Hale's case was whether the council had considered matters of traffic and parking. Although the matter was raised and relevant conditions had been suggested by the council's planner, the council decided to delete the conditions and approve the application without determining whether car parking would be provided by any off street facilities. In effect, although the problem of parking was identified it was not resolved.

33 The Court of Appeal upheld the decision of the trial judge and found (by majority) that the council had failed to take into account the matters required to be considered under s 90. Street CJ said that the matter did not require consideration of authority. The Chief Justice said (at LGRA 335):

"It is not necessary, in the resolution of the present appeal, to delve deeply into authority. The law is clear that a provision such as s 90(1) necessitates, as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision.
All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex. In the third place the reference in each to 'the council' is to the council as a group; it is the council's collective state of mind, as found by the court, which will be of critical significance."

34 By removing the catalogue of matters provided by s 90, the Parliament has not confined the matters required to be considered by a council. However, identification of the relevant impacts is a task which must be conducted without the assistance of a statutory "check list." The obligation of a consent authority is to give "real consideration" to relevant matters.

35 When a challenge to a decision is made, the task of a court is to determine whether the challenger has discharged the onus of proving that the council has failed to consider a relevant matter of such significance that it justifies the court's intervention, taking care to ensure that the review proceedings do not become a review of the merits of the relevant decision: see the discussion by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601.

36 In Weal v Bathurst City Council (2000) 111 LGERA 181, the Court of Appeal divided over a challenge to a development consent granted with respect to a proposed rail freight terminal. At issue was whether the council had considered the impacts of noise from the proposal.

37 Giles and Priestley JJA came to the view that the council's discretion had miscarried. Mason P came to the contrary view. However, as Priestley JA makes plain, the principles which govern the approach that a court should take in the event of a challenge were the subject of substantial agreement. A summary of those principles is useful and would include the following:

· the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried;

· when exercising its decision-making power, an administrative body must give "proper, genuine and realistic consideration" to the merit of the matter: see Khan v Minister for Immigration and EthnicAffairs (1987) 14 ALD 291 at 292; Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient: Zhang at NSWLR 601;

· a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues: Hale at LGRA 319;

· legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;

· generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;

· when a challenge is based upon Wednesbury unreasonableness a stringent test is applied. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. The decision must be devoid of plausible justification: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31;

· when it comes to a consideration of whether the decision-maker has properly weighed up relevant considerations which it has itself identified, a court must proceed with caution "lest it exceed its supervisory role by reviewing the decision on its merits": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42;

· where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: Hale; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373;

· although the decision-maker "can take account of a relevant consideration by reference to a previous decision … this does not mean that it does not have to address the issue itself" and the previous decision must "be enlivened in the consideration of the application before it for decision": Currey at LGERA 374 per Stein JA (with whom Mason P and Handley JA agreed).

Car parking noise and the parties' submissions

38 The report from Scott Carver with respect to the Original Development Application recommended that a noise impact study be prepared in the event of on-site parking spaces increasing beyond the 62 spaces contemplated in the Original Development Application.

39 When assessing the Amended Development Application which envisaged 212 car parking spaces, the Council did not obtain the suggested study and there was no material before it which could inform it of the noise impacts of cars in Hampden Lane on the nearby residences.

40 In its written submissions, the Council points to various documents of which it was aware and which canvassed the noise impact issue. Emphasis was placed on the fact that the Scott Carver Report drew attention to the car park noise issue. The submission was in the following terms:

“Scott Carver was retained to provide an independent assessment of the original development application for eight cinemas and a mixed use development in Edgbaston Road (including a rezoning proposal). That report noted the potential noise impacts which may result from the development by way of cars entering or exiting the underground car park which would have an affect on adjoining residential units to the west of Hampton Lane. Additionally, the Statement of Environmental Effects prepared by Aberline Associates dated June 2003 . . . also referred to this impact. Furthermore, a letter of objection was submitted by Urbis dated 21 July 2003 which also canvassed this issue. All these references regarding this issue were known by the Council Officer Tina Christy when she prepared her report on the amended development application.” (references to exhibits omitted)"

41 Reliance was also placed on the "presumption of regularity", the following submission being made:

"The absence of reasons or an absence of reference to a relevant matter in the decision of a Council or in any report before the Council is not proof that the Council failed to consider the relevant matter.
. . .
A presumption of regularity also operates in favour of Council having considered the relevant matters to form the requisite opinion (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154).”

42 Accordingly, the Council submits that it had available to it, and gave the requisite consideration to, documentary evidence in relation to the noise impact issue.

43 As I have indicated, Ms Christy was responsible for preparing the report in relation to the Amended Development Application for Council’s consideration.

44 The first and second respondents submit that Ms Christy’s consideration of the noise impact issue from increased on-site parking was sufficient to satisfy the Council’s statutory obligation under s 79C of the EP&A Act to consider that matter. To support this proposition, the first and second respondents rely largely on the Carltona principle.

The Carltona Principle

45 The first and second respondents submit that the principle derived from the decision in Carltona allows a council to rely on its officers to consider matters that the Council itself is obliged to take into consideration when determining development applications before it. The principle, first identified in war time, provides that where an administrative function has been entrusted to a minister but has been performed by an official employed in the ministry or the minister’s department, the minister is entitled to rely on that person’s decision in relation to the relevant function. The law does not regard there as having been a delegation of power. Instead, the relationship is a type of agency (Peko-Wallsend at CLR 37-38) whereby an officer is the vehicle through which a ministerial power is exercised, although the minister remains responsible for that official’s actions or conclusions. In Carltona, Lord Greene MR articulated the rationale for this so-called “alter ego” principle in these terms (at All ER 563):

“In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. . . . It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon the ministers and the powers given to the ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. . . . The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.”

46 As Wilson J said in O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 at 13, Lord Greene MR was referring to “the necessity in modern government for the shared performance of duties short of delegation”. In Peko-Wallsend, Mason J said (at CLR 38):

"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him."

47 In Peko-Wallsend, the High Court accepted that in relation to a minister exercising administrative functions he or she will have not only actual knowledge of relevant matters but, in addition, constructive knowledge of matters known by officers of that minister's Department. In Bushell v EnvironmentSecretary [1981] AC 75 at 96, Lord Diplock said that the "collective knowledge technical as well as factual of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his expertise."

48 Counsel for the applicant disputed the relevance of the Carltona principle to this case, principally arguing that it is largely confined to ministerial responsibilities. Indeed, in Carltona itself, Lord Greene MR’s comments were directed to “the functions which are given to Ministers” (at All ER 563).

49 In Judicial Review of Administrative Action (2000), Aronson and Dyer state that the justification for employing the Carltona principle is not the private law principle that anyone can act through their agent, but is instead based upon the following two reasons (at 261):

“First there is the argument of necessity. Reference is made to the impossibility of Ministers, in particular, being able to attend personally to the huge range of tasks statutorily imposed on them unless they can either delegate or act through an agent. Secondly, a Minister who acts through departmental officers is still accountable in Parliament, and can exercise control and supervision of their officers.”

50 This first reason was referred to by Mason J in Peko-Wallsend, where his Honour commented (at CLR 38):

“The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.”

51 In R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 at 195, Staughton LJ quoted with approval Mason J’s judgment in Peko-Wallsend to support the proposition that the Carltona principle is limited to cases of administrative necessity. Staughton LJ’s decision was approved on appeal (R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531 at 566).

52 The second justification for the Carltona principle identified by Aronson and Dyer can be traced back to a decision predating Carltona. In Local Government Board v Arlidge [1915] AC 120, it was held that a decision of the Local Government Board could be made by an anonymous departmental official in the Board’s name, the Court noting that Ministerial responsibility is a sufficient safeguard of this practice. The idea that ministers remain constitutionally responsible for any conclusions reached by their officers as at least a partial justification for the Carltona principle was also referred to by Gibbs CJ in O’Reilly v Commissioners of the State Board of Victoria (1983) 153 CLR 1 at 11.

53 It is apparent that persons other than Ministers have been judicially recognised as being in an analogous position, including commissioners (Commissioners of Customs and Excise v Cure & Deeley Ltd [1962] 1 QB 340 at 371) and a university senate (Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723 at 733).

54 Hodgson JA recently made mention of the possible application of the Carltona principle to the decisions of a local authority in Hill v Woollahra Municipal Council (2003) 127 LGERA 7. His Honour decided that he did “not need to rule on whether detailed consideration by a council officer absolves individual members of the council from addressing questions, in cases where it is the council itself rather than some delegated person or body that makes the relevant decision” (at LGERA 25), but nevertheless stated (at LGERA 25):

“I would comment, however, that members of a local council are not required individually to pursue every possible aspect of questions such as those raised by cl 18, but can rely on conclusions drawn by qualified officers such as engineers . . . and town planners . . ., and it is open to members of a council to accept or reject such conclusions.”

55 In my opinion, the Carltona principle is confined to the circumstances where an officer exercises the decision-making power of the person or body given the responsibility for making the decision. Although the principle was confirmed in wartime and may have to be, at least in Australia, reconciled with a diminishing acceptance of responsibility by ministers for failure by their departmental officers, in my opinion it does not extend to decisions of local authorities. In the absence of the delegation of the decision-making function to an officer, the corporate body must itself consider the issues relevant to the development application before it. It may be informed about those issues by the officer's report which may not, and often will not, disclose all of the information considered by the officer and his or her complete reasoning processes. However, as Moffit P explained in Hale (at LGRA 346):

"While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers. Accordingly it is open to it to adopt sch a recommendation, provided in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant s 90(1) matters, as earlier discussed."

56 In the present case, the deliberations of the officer in relation to car noise were never included in a report and were never communicated to the councillors. Accordingly, they are in my view irrelevant and cannot assist in understanding whether the Council itself discharged its obligation to consider relevant matters.

The Presumption of Regularity

57 The presumption of regularity raises a rebuttable presumption of law that official acts are presumed to have been done rightly and regularly. It will apply to planning decisions: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164. In that case, the presumption was described by McHugh JA in the following terms:

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

58 As such, the presumption embodies the notion that the “wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order”: Morris v Kanssen [1946] AC 459 at 475.

59 The first and second respondents submit that the presumption of regularity operates in the present case so that it may be presumed that the Council has considered all relevant matters when making its decision to approve the Amended Development Application. Because it is submitted that there is no evidence to the contrary, it must be presumed that the Council considered the issue of impact from traffic noise.

60 In my opinion, reliance on the presumption of regularity in this case is misplaced. As Ipp J explained in Selby v Pennings (1998) 102 LGERA 253, at 261 (with whom Owen J agreed at 282), the presumption applies "only to matters of form, rather than of substance. Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met."

61 It was for this reason that Stein JA said in Franklins Limited v Penrith City Council [1999] NSWCA 134 that the challenge to the decision as to whether the council was satisfied of a particular matter was not informed by the presumption of regularity.

62 In the present case, the applicant does not submit that the Council failed to make a decision or that a precondition was not discharged. The submission is that in making the decision, the Council failed to have regard to a particular matter - the noise impact from traffic - and, accordingly, its discretion miscarried. Because the applicant is dependent for success in the proceedings on the Court drawing appropriate inferences, the task it undertakes may be difficult, but the presumption of regularity is not relevant to the Court's decision.

Conclusion in relation to noise

63 I am satisfied that because of the failure to obtain an assessment of the likely impact of the noise from cars using Hampden Lane, the Council's consideration of the application has miscarried. Although the councillors can be presumed to have knowledge of the local area and the configuration of existing development which may allow them to have properly considered the likely noise impact of modest development proposals, the present application was of quite a different character.

64 One characteristic of a cinema use will be the arrival of groups of vehicles close to the commencement of a session and departure at the end of the session. Where a ten cinema complex is proposed, the potential for significant traffic movement in evening and night time hours is readily apparent. So much is plain from the fact that there has been identified a need for onsite car parking for a total of 212 cars. Depending upon the pattern of vehicle movements, the noise impacts on local residents, especially late at night, might be significant and could be unacceptable. So much was recognised in the Scott Carver Report:

"It is envisaged that the major noise sources which may potentially impact upon the proposal are from traffic entering and leaving the proposed basement car park, traffic on King Georges Road and from cinema patrons entering and exiting the cinemas. The most significant noise impact which may result from the proposed development is on the adjoining residential units to the west of Hampden Lane.
Although it is proposed to only provide sixty on site parking spaces, this figure may increase if suitable parking arrangements are not secured for the proposal elsewhere. Should an increase in parking be proposed for the subject site, a noise impact study would be required to be prepared to the satisfaction of Council."

65 The Council never received the suggested assessment and proceeded to approve the application without being informed as to the nature and extent of the likely noise impact of the Amended Development Application. Given the residential development in the laneway, the Council should have had available to it an assessment of the likely noise impacts from traffic. This would have allowed a consideration of whether the impacts of the proposal were acceptable or perhaps may only be acceptable if conditions, which might include conditions with respect to the hours of operation, were imposed. Because an assessment was not obtained, the Council remained ignorant of whether an unacceptable problem would be created. Whatever may have been the knowledge or opinion of the planning officer about the noise impact matter, it did not extend to any formal assessment of noise. In any event, her consideration of the matter was not communicated to the councillors.

66 Although there were many issues which the Council was required to consider, the possible noise impacts from the proposal were of real significance, particularly because of the proximity of residential development. Without the assessment necessary to consider the issue, a fundamental matter was overlooked. Quite simply the possible impact of traffic noise in Hampden Lane on the adjoining residents was not given consideration by the Council.

Failure to take into consideration cl 4.1.17 of the Development Control Plan No. 12 – Beverly Hills

67 Under the subheading “Car Parking”, cl 4.1.17 of DCP No 12 states:

“Geotechnical, Structural and Hydraulic Reports should accompany any proposal for underground parking.”

68 It is common ground that no geotechnical report accompanied either the Original Development Application or the Amended Development Application.

69 The written submissions of the applicant refer to the relevance of this lack of a geotechnical report in the following terms:

“Whilst there is evidence that the Council was aware that the DCP was relevant to the determination of the Consent, there is no evidence that the Council took into consideration the fact that clause 4.1.17 of the DCP required that a geotechnical report should accompany the proposal for underground parking incorporated in the development application. In view of the fact that the proposed underground parking included 202 parking spaces on 3 levels and a substantial excavation was proposed to accommodate those levels, the terms of clause 4.1.17 were so directly pertinent to the application for consent before the Council that those terms were entitled to significant weight in the decision-making process: see Zhang at 601, par 75. Instead, they were seemingly overlooked."

70 The Council submits that although cl 4.1.17 of DCP 12 raised a matter for consideration, the Council was under no obligation to decline to refuse consent unless it had received and considered any of the reports referred to in that clause. The Council submits that the clause:

“. . . is facultative and gives Council power to require the provision of geotechnical, structural and hydraulic reports in accompanying any proposal for underground parking. This power also gives Council the ability to require those reports and secondly to decline to grant consent unless Council receives the reports. The legislative intent was to extend the more limited power Council has to request additional information. . . . As a matter of construction it is not accurate to imply that Council has a duty to request the provision of those reports. . . . Clause 4.1.17 applies no standard which is required to be met. It simply suggests that various types of reports should be submitted with certain types of applications.”

71 It is not the role of a court to review the weight that ought to have been accorded to a relevant consideration by the decision-maker. That is a matter for the decision-maker alone to determine: see, for example, Peko-Wallsend at CLR 40-42; Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 at 93.

72 Clause 4.1.17 states that geotechnical, structural and hydraulic reports “should” accompany any proposal for underground parking. The word “should” is not an imperative, but merely creates an expectation which the Council could obviously waive. In many cases where a development application was likely to be controversial, a requirement that there be full investigation of a site with relevant reports could prove unnecessarily onerous. All that a council would require is sufficient information to enable an informed decision to be made as to whether a development should be approved. The necessity for geotechnical or hydrological investigation could always be dealt with by conditions, including conditions which must be fulfilled before the consent could operate.

73 In fact in the present case, the Council imposed condition 28 which was in the following terms:

"A report prepared by a geotechnical engineer practising in the field of geotechnical investigations certifying that the stability of the site and specifying the design constraints to be placed on the foundation, earthworks and excavations for the proposed building must be submitted to Council and, if used, the accredited certifier prior to the issue of a construction certificate."

74 The imposition of this condition clearly demonstrates that the Council gave consideration to the stability of the site with respect to the proposed excavation.

Condition precedent in clause 15 of the Hurstville Local Environmental Plan 1994

75 The final issue raised by the applicant is whether the Council satisfied itself of the requirements in cl 15 of the Hurstville Local Environment Plan 1994 (“LEP”) before granting development consent.

76 Clause 15 of the LEP provides as follows:

“Before granting consent to the carrying out of development on land for any purpose the council must be satisfied that:
(a) facilities for the supply of water and for the removal or disposal of sewage and drainage are available to that land, or
(b) arrangements satisfactory to the Water Board for the provision of these facilities have been made.”

77 The parties agree that the effect of this clause is that the Council’s satisfaction of either (a) or (b) is a condition precedent to it granting development consent: Codlea v Byron Shire Council (1999) 105 LGERA 370 at 375-376.

78 The site is within a developed part of Hurstville that is serviced with water, sewage and stormwater drainage facilities. The existing development has these facilities available to it. This is confirmed by the Scott Carver Report which says that the site incorporates:

"443 King Georges Road, at the northern extremity of the subject site, which is currently a Sydney Water owned stormwater channel and car park. The stormwater channel, at present, provides drainage for the surrounding residential areas."

79 The amended plans were referred to Sydney Water for comment. In a letter dated 28 July 2003, Sydney Water responded, stating that it had no objection to the proposed development proceeding provided:

“The requirement for a Section 73 Certificate [of the Sydney Water Act 1994] is included in the consent conditions and that building plans are presented to Sydney Water for approval/conditions so that adequate protection of [Sydney Water Corporation’s] assets can be assured.”

80 The relevant assets, identified as being “located within the site that may require protection and/or adjustment”, were two stormwater channels and two sewer mains. Sydney Water raise no issue as to the availability of water, sewage and drainage facilities.

81 In these circumstances, the applicant must fail on this issue. It would have been known to every councillor that the required facilities were available to the site and Sydney Water does not suggest otherwise. Clause 15 was undoubtedly included in the LEP to deal with the circumstance where development was proposed in a previously undeveloped area. This was not the present case.

Relief

82 The respondents submit that the Court should decline to grant relief but instead make orders pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) (L&EC Act). That section forms part of Part 3 Division 3 of the L&EC Act which is in the following terms:

"25A Application of Division
(1) This Division applies to:

(a) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979 :

(i) by the Minister, and
(ii) whether before or after the commencement of this subsection, and


(b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979 :

(i) by any other consent authority, and
(ii) in respect of a development application made on or after the commencement of this subsection.


(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.

(3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979 .

(4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979 .

25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(a) suspending the operation of the consent in whole or in part, and
(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation):
(a) terms requiring the carrying out again of steps already carried out, or
(b) terms requiring the carrying out of steps not already commenced or carried out, or
(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.
25C Orders for validity of development consents
(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order:
(a) declaring that the terms have been substantially complied with, and
(b) declaring that the consent is valid, and
(c) revoking the order of suspension.
(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order:
(a) declaring that the terms have been complied with, and
(b) declaring that the development consent has been validly regranted, and
(c) declaring that the suspended development consent has been revoked, and
(d) revoking the order of suspension.
25D Power to grant another development consent
Nothing in this Division prevents the grant of another development consent in relation to the same matter, during or after the period of suspension, pursuant to a development application duly made.
25E Duty of Court
It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part."

83 It is submitted that, in the circumstances, no declaration of invalidity should be made but the second respondent should be required to obtain a noise report which should be submitted to, and considered by, the first respondent which could then decide whether to confirm its original decision.

84 I do not believe this to be the appropriate course. As I have indicated, the potential noise from cars in Hampden Lane raises a significant issue and one which is central to the evaluation of the environmental impact from the proposed development. It could not be considered in isolation from the other likely impacts of the proposal, which must be assessed and weighed with the benefits offered by the development. To suspend the consent in contemplation that the obtaining and consideration of a noise assessment may ultimately validate the decision carries the significant risk that the decision-making process of the Council may again miscarry. The risk is inherent in the suggested process, regardless of whether the application is ultimately considered favourably or adversely.

85 Apart from the question of whether s 25B is available, where the Council's decision-making process has miscarried, as opposed to a failure to consult with or obtain the concurrence of another authority, I do not consider it to be an appropriate course in this case. In my opinion, any decision to be made in relation to the present proposal should be made after the Council has had an opportunity to consider all of the relevant material including information in relation to the noise aspect of vehicles in Hampden Lane. (see also Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Centro Properties Ltd v Warringah Council (No 2) 2003 133 LGERA 45.

86 The orders of the Court are:

1. A declaration that development consent No 20020252 granted by the first respondent to United Leisure Investments Pty Ltd for the construction of a mixed ten cinema and retail complex with open air plaza (the "consent") is invalid and of no effect.

2. An order that the second respondents be restrained from acting upon the consent.

87 I will receive submissions with respect to the appropriate costs orders.

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