City of Botany Bay v New South Wales Land and Housing Corporation

[2010] NSWLEC 160

Land and Environment Court

of New South Wales

CITATION:

City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160

PARTIES:

APPLICANT
City of Botany Bay

RESPONDENT
New South Wales Land and Housing Corporation

FILE NUMBER(S):

40201 of 2010

CORAM:

Sheahan J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- challenge to approval granted under Part 5 of the Act; utility of granting relief when project almost completed; applicability of State Environmental Planning Policies; are the environmental impacts of proposal of such significance that a full environmental impact statement is required; delegation of authority to determine; delegate's reliance on consultants rather than sub-delegation

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Housing Act 2001
Interpretation Act 1987
Land and Environment Court Act 1979
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy (Affordable Rental Housing) 2009
Botany Local Environmental Plan 1995

CASES CITED:

Bass v Permanent Trustee (1999) 198 CLR 334
Bushell v Secretary of State for the Environment [1981] AC 75
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297
Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186
F. Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353
GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116
Guthega Developments Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (1986) 7 NSWLR 353, 61 LGRA 401
Hamman v Lake Macquarie City Council [1999] NSWCA 82
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425
Klefend Pty Ltd v Santom Pty Ltd & Anor [1994] NSWLEC 201
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381
Parramatta City Council v Hale (1982) 47 LGRA 319
Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402
Re an application by Tooth & Co Ltd (1978) 19 ALR 91
re Golden Chemical Products Ltd [1976] Ch 300
Tickner v Chapman (1995) 57 FCR 451
Transport Action Group Against Motorways Inc v RTA (1999) 46 NSWLR 598
Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121
Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396

DATES OF HEARING:

11-12 August 2010

 
DATE OF JUDGMENT: 

24 August 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Hale, SC
SOLICITORS
Houston Dearn O'Connor

RESPONDENT
Mr P Tomasetti, SC with Mr J Atkin
SOLICITORS
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

24 August 2010

40201 of 2010 City of Botany Bay v New South Wales Land and Housing Corporation

JUDGMENT

Introduction

1 His Honour: The Respondent State Corporation (which for simplicity I will refer to as ‘Housing NSW’) granted itself approval, under Part 5 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), and under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘the AHSEPP’ – Exhibit R1, fols 54-89), to redevelop an irregularly shaped 1249m² residential block of land it purchased at No.6 St Helena Parade, Eastlakes within the Applicant Council’s area.

2 The subject site has an 18m frontage to St Helena Parade where that street makes a dog-leg turn to the west to become Sparks Street. To its north is dense residential development, largely single-storey. Adjacent to its south, but addressing Sparks Street, is the East Lakes Scouts building, located on the Botany Water Reserve, land approximately 2.5m lower than the subject site, and south of that is The Lakes Golf Course (see Exhibit R1, fols 222-223; Exhibit R3 sheet “0000”; Exhibit R5).

3 Until recently there was on the subject site a privately owned 1980s cottage, with a separate garage at the street entrance, and, to the rear, a tennis court, which ran along the rear boundaries of residential lots facing Florence Street.

Zoning

4 The subject site is located within an area zoned “2(a) Residential” under the Botany Local Environmental Plan 1995 (‘the LEP), the objectives of which zone are as follows (Exhibit R1, fols 112-113):

“The primary objective is to provide for the development and use of detached dwelling-houses and semi-detached dwellings as the predominant built form, together with community and service uses of a type and scale appropriate to the enjoyment of such housing.
The secondary objectives are:
(aa) to promote detached dwelling-houses,
(a) to ensure that building form, including alterations and additions, is in character with surrounding development and does not detract from the amenity of surrounding residents or the existing quality of the environment,
(b) to allow community facilities and purposes which are compatible with residential use,
(c) to encourage the preservation and improvement of buildings which are of architectural or heritage significance,
(d) to allow certain non-residential development which provides services for residents and which is of a type and scale which does not interfere with the amenity of surrounding residential uses, and
(e) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone.”

5 In contrast, the other residential zone in the LEP – Zone No 2(b) – has the following objectives (Exhibit R1, fols 113-114):

“The primary objective is to provide for the development and use of housing, other than detached housing, in appropriate locations, together with community and service uses of a type and scale appropriate to the enjoyment of such housing.
The secondary objectives are:
(a) to provide scope for high-quality residential development in innovative forms on identified sites,
(b) to improve the quality of the residential amenity by encouraging landscaping and good design in both new developments and renovations,
(c) to encourage the revitalisation and improvement of older established residential areas by rehabilitation and suitable development,
(d) to allow non-residential development which provides services or employment for residents and which is of a type and scale which does not interfere with the amenity of surrounding residential areas,
(e) to encourage the preservation of buildings which are of heritage significance and within a heritage conservation area, and
(f) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone.”

6 (Council argues that the subject development would be more appropriate on land zoned 2(b) rather than 2(a)).

Aircraft Noise

7 Significantly for this case, the site lies between the “25” and “30” contours on the Australian Noise Exposure Forecast Chart (‘ANEF’ – see Exhibit C2).

8 Aircraft noise is a significant issue in Council’s area (see LEP cls 13 and 13A at Exhibit R1, fols 133-134). It features in various strategy documents (see “CM4” and “CM10” in Exhibit C4). Council adopted an Aircraft Noise development control plan (‘DCP’– No.53) on 3 June 1998 (see Exhibit R2, fols 391ff and Annexure ‘C’ to McMahon’s affidavit 25 May 2010). That DCP relies upon the ANEF chart and Australian Standard (‘AS’) 2021-2000 “Acoustics – Aircraft Noise Intrusion – Building Siting and Construction” (Exhibit C5). See especially the Appendix and Table 2.1 of the Standard, reproduced in the DCP (Exhibit R2, fol 399), which makes clear that residential development is “unacceptable” where the ANEF contour exceeds 25. Clause 9.3 of the DCP (Exhibit R2, fols 396-7) regulates how Council should deal with proposals to develop on “unacceptable” ANEF 25-30 sites. “Acoustic privacy” is also an objective of DCP 38 – Housing and Ancillary Structures (“CM11” in Exhibit C4, at p68), which links up with AS 2021 and DCP 53. Council’s planning functions in ANEF areas are closely regulated also by both Commonwealth and State governments (see e.g. the s 117 directions, “CM2” and “CM3” in Exhibit C4).

The project

9 The redevelopment project was purportedly approved under a delegation given by the respondent, and it comprises construction of seven residential units, part of the very large “social housing” element of the Australian Government’s “Nation Building Economic Stimulus Programme”, implemented following the global financial crisis. Housing NSW appointed its officer and witness Colin Morgan to direct this element of the programme, comprising 1,000 sites in NSW.

10 This particular project is clearly designed to maximise site yield while being sensitive to its environs (Exhibit R2, fol 300). The seven modest units are located in four separate buildings: Block 1 contains a single one-storey dwelling; Blocks 2 and 3 each contain a ground floor dwelling, plus a first floor dwelling, accessed through a ground floor entry room containing a staircase to the living areas (see Exhibit R4); Block 4 contains two attached single-storey dwellings at ground floor level (see Exhibit R3, plan SW01). In all, there are two two-bedroom units and five one-bedroom units, ranging in size from 55m² to 74m².

The Dispute

11 Council opposes the development, despite the high level of local demand for “social housing”, but its objection to Housing NSW did not prevail. It has challenged the approval in class 4 of this court’s jurisdiction, by summons dated 23 March 2010, which it amended on 21 May 2010. In neither version of its summons did Council seek any interlocutory relief. Nor was any expedition sought, despite general public knowledge of the strict time limits on the NSW Government’s taking advantage of the stimulus package funding.

12 Construction commenced at around the time these proceedings were commenced, and was continuing apace as at the date of hearing (11-12 August), at which time approximately $1.6M of the contract price of $1.763M had been spent. The project will be completed by 22 or 29 September, 2010 (see photos of progress in Exhibit R4), and Housing NSW intends allocating the units shortly to households assessed as “needy” and “eligible” (see uncontested evidence of Housing NSW Executive Manager, Paul Vevers), so that the project does not stand idle on completion, at risk of vandalism.

13 During the hearing, and at its conclusion, Council asked the court to stop the project, but declined to give any undertaking as to damages. The court undertook to decide the case quickly, and in accordance with the mandate in s 22 of the Land and Environment Court Act 1979, as some question obviously arises regarding the utility of the court’s making, in the ordinary course of its determination of the matter, the orders sought in the amended summons.

14 The orders sought by Council may be summarised as follows:

1. (a) A declaration that the development purportedly considered under the AHSEPP on 12 February 2010 is not development to which the provisions of Clause 40 of the AHSEPP applies.
(b) Alternatively, a declaration that Housing NSW in considering the project failed to comply with the provisions of Clause 40(4)(a), (b) and (c) of the AHSEPP.
2. A declaration that the approval of the development on 12 February 2010 was invalid.
3. A declaration that Housing NSW in considering the development under the provisions of Part 5 of the EPA Act :
(a) failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment, as required by s 111 of the EPA Act ; and
(b) failed to consider, or properly consider, whether the development, was likely to significantly affect the environment, and thus comply with the provisions of s 112 of the EPA Act .
“4. An order that the Respondent be restrained from carrying out the Proposed Development.
5. Such further order or orders as this Honourable Court deems fit.
6. Costs.”

Points of Claim and Defence

15 Council’s Points of Claim, filed on 13 May 2010, but not amended following the amendment of the summons, plead as follows:

“1. The Respondent is a Statutory body corporate constituted pursuant to S6 of the Housing Act 2001.
2. Pursuant to S6(3) of the Housing Act 2000 (sic) any act, matter or thing done in the name of or on behalf of the Respondent by the Director-General or with the authority of the Director-General is taken to have been done by the Respondent.
3. On 12 February 2010 the Respondent, acting in the name of Housing NSW Department of Human Services purported to approve the construction of 7 Dwellings comprising 5 x 1 bedroom and 2 x 2 bedroom dwellings in one and two storey dwellings at 6 St Helena Parade Eastlakes (‘Proposed Development’) pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’).
4. In determining the application the Respondent failed to do so by the Director-General or with the authority of the Director-General and such determination was thereby invalid.
Particulars
The project approval was signed and dated by Christine Hicks Manager, Portfolio, Strategy and Planning Housing NSW Department of Human Services and dated 12 February 2010 and not by the Director-General.
5. To the extent to which the Respondent relies upon Clause 40 of the SEPP:
(a) the Proposed Development is not development to which the provisions of Clause 40 of the SEPP applies: and
(b) the Respondent failed to comply with the provisions of Clause 40(a), (b) and (c) of the SEPP.
6. For the purposes of Section 111 and 112 of the EP&A Act the Respondent is a determining authority in respect of the proposed development.
7. On or about 12 February 2010 the Respondent determined to carry out the proposed development as determining authority pursuant to Section 110(1) of the Environmental Planning and Assessment Act.
8. In its consideration as to whether or not to carry out the activity the Respondent in breach of its duty under Section 111 of the EP&A Act failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.
Particulars
(a) The impact of aircraft noise on the future occupants of the development;
(b) The impact upon planning and the orderly development of land in the 2(a) zoned land and beyond; and
(c) Impact upon owners and residents of land in the vicinity on their amenity and ability to redevelop their land in accordance with 2(a) Zoned land planning controls.
9. (a) The proposed development is an activity which is one that is likely to significantly affect the environment.
(b) In breach of Section 112, the Respondent is carrying out and has granted approval for the carrying out of the activity without having obtained or being furnished with and having examined and considered an environmental impact statement in respect of the activity in accordance with Section 112(1)(a) and has not otherwise complied with the provisions of Section 112(1) of the EP&A Act.
Particulars
The activity was likely to significantly affect the environment due to:
(i) The impact of airport (sic?) noise on the future occupants of the development;
(ii) The impact upon planning and the orderly development of land in the 2(a) zoned land and beyond; and
(iii) Impact upon owners and residents of land in the vicinity on their amenity and ability to redevelop their land in accordance with 2(a) Zoned land planning controls.”
(POC 10 then repeated the relief set out in the summons)

16 The Points of Defence, filed on 8 July 2010, were in the following terms:

“1. The Respondent admits paragraph 1 of the Points of Claim.
2. In answer to paragraph 2 of the Points of Claim, the Respondent relies upon section 6 of the Housing Act 2000 for its complete terms and operation at law, and otherwise denies paragraph 2.
3. The Respondent denies paragraph 3 of the Points of Claim, but admits that on 12 February 2010 it determined to proceed with a project described in paragraph 3 pursuant to the SEPP.
4. The Respondent denies paragraph 4 of the Points of Claim. In further answer to paragraph 4, and in the alternative, the respondent says that:
(a) There is and was no application for determination by the Respondent; or
(b) there is no requirement for the Respondent to determine to proceed with the project described in paragraph 3 of the Points of Claim by or with the authority of the Director General; or
(c) pursuant to section 6 of the Housing Act and/or clause 40 of the SEPP Housing NSW was required to, and/or alternatively was permitted to, and did, act on behalf of the Respondent.
5. The Respondent denies paragraph 5 of the Points of Claim.
6. The Respondent admits paragraph 6 of the Points of Claim.
7. The Respondent admits paragraph 7 of the Points of Claim.
8. The Respondent denies paragraph 8 of the Points of Claim.
9. The Respondent denies paragraph 9 of the Points of Claim.
10. The Respondent denies that the Applicant is entitled to the relief claimed in paragraph 10 of the Points of Claim, or at all.
11. In further answer to the Applicant’s claim, the Respondent says that in the circumstances of this proceeding and in the circumstances relating to the subject land and in the circumstances under which the project is being undertaken, in the event that this Court determines that the respondent has breached the Act in the manner pleaded by the Applicant this Court would in its discretion decline to grant any relief as sought against the Respondent”.

The Statutory and Regulatory Context

includes the following definitions (Exhibit R1, fols 166-171):

detached dwelling-house means a dwelling-house that is not attached to another dwelling-house by a common wall, party wall, separating wall, ceiling, floor, breezeway, carport or any other structure.
multi unit housing means a building or buildings, on one allotment of land, containing 2 or more dwellings where each dwelling has an individual entrance and direct access to private open space at ground level for the exclusive use of the occupants of the dwelling, and includes townhouses, villas, and terraces, but does not include residential flat buildings or any other form of dwellings specifically defined in this Schedule.
residential flat building means a building containing 3 or more dwellings (not being serviced apartments or multi unit housing) that have shared parking or access arrangements (or both).
semi-detached dwelling means either of the 2 dwellings that are created when a building is divided vertically into 2 dwellings by a common wall, but only if the dwelling is located on a separate lot having access to and frontage to a street.

18 The Housing Act 2001 relevantly provides:

“ 3. Definitions
building includes any part of a building and any appurtenance to a building, any fence, wall and any other structure or a part of a structure and any provision for lighting, heating, refrigeration, water supply, drainage or sewerage.
Corporation means the New South Wales Land and Housing Corporation constituted by this Act.
Department means the Department of Human Services.
Director-General means the Director-General of the Department.
function includes a power, duty or authority.
house or housing means any kind of dwelling.
public housing means housing owned or leased by the Corporation, and managed by the Department, that is leased to members of the public that meet the Department’s or the Corporation’s eligibility criteria …
…
6. Establishment of New South Wales Land and Housing Corporation
(1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation.
(2) The affairs of the Corporation are to be managed by the Director-General.

(3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation.
(4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown.
(5) The Corporation is subject to the direction and control of the Minister.
(6) (Repealed)
(7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department.
(8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act.”

19 Clauses 7-8, 10-12, and 40 of the AHSEPP (Exhibit R1, fols 54-89) relevantly provide:

“Part 1 - Preliminary

7 Land to which Policy applies

This Policy applies to the State.

8 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

…

Part 2 – New Affordable Rental Housing

Division 1 – In-fill Affordable Housing

10 Land to which Division applies

(1) This Division applies to a development site on land if the development site is within any of the following land use zones or within a land use zone that is equivalent to any of those zones, but only if development for the purposes of dwelling houses, multi-dwelling housing or residential flat buildings is permissible within the zone:


(a) Zone R1 General Residential,

(b) Zone R2 Low Density Residential,

(c) Zone R3 Medium Density Residential,

(d) Zone R4 High Density Residential.

….


11 Development to which Division applies

This Division applies to the following development on land to which this Division applies:

(a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if:


(i) the development does not result in a building on the land with a building height of more than 8.5 metres, and

(ii) in the case of development for the purposes of a residential flat building—residential flat buildings are not permissible on the land otherwise than because of this Policy,


(b) development for the purposes of residential flat buildings where at least 20 per cent of the dwellings in the building will be used for affordable housing, but only if:

(i) residential flat buildings are permissible on the land otherwise than because of this Policy, and

(ii) the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register.


12 Development may be carried out with consent

Development to which this Division applies may be carried out with consent…

…

Division 6 – Residential Development – Land and Housing Corporation
40 Development may be carried out without consent

(1) This clause applies to development for any of the following purposes where that development may be carried out with consent:
(a) residential development that:
(i) does not result in the construction of a building with a building height of more than 8.5 metres, and
(ii) does not result in more than 20 dwellings on a single site,
(b) demolition of dwellings and associated structures, but not if the dwelling or structure is on land that:
(i) contains a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register, or
(ii) is identified in an environmental planning instrument as being within a heritage conservation area,
(c) subdivision of land and subdivision works.
…
(3) Development to which this clause applies may be carried out by or on behalf of the Land and Housing Corporation without development consent.
(4) Before carrying out development to which this clause applies for a purpose referred to in subclause (1) (a), the Land and Housing Corporation must:
(a) give written notice of the intention to carry out the development to the council for the area in which the land is located and to the occupiers of adjoining land, and
(b) take into account any response to the notice that is received within 21 days after the notice is given, and
(c) take into account the Seniors Living Policy: Urban Design Guidelines for Infill Development (ISBN 0 7347 5446 9) published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that it is not inconsistent with this Policy.”…

20 (It is common ground that the subject land is caught by clause 10(1), as “R1 land”, and the Seniors Living Guidelines, referred to in cl 40(4)(c), are before the court in Exhibit R2, at fols 638ff).

21 The dictionary of the Standard Instrument (Exhibit R1, fols 186ff) is called up by cl 4 of the AHSEPP, and includes the following definitions (at fols 188-212):

attached dwelling means a building containing 3 or more dwellings, where:
(a) each dwelling is attached to another dwelling by a common wall, and
(b) each of the dwellings is on its own lot of land (not being an individual lot in a strata plan or community title scheme), and
(c) none of the dwellings is located above any part of another dwelling.
dual occupancy means 2 dwellings (whether attached or detached) on one lot of land (not being an individual lot in a strata plan or community title scheme), but does not include a secondary dwelling.
dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
dwelling house means a building containing only one dwelling.
multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land (not being an individual lot in a strata plan or community title scheme) each with access at ground level, but does not include a residential flat building.
residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling or multi dwelling housing.

semi-detached dwelling means a dwelling that is on its own lot of land (not being an individual lot in a strata plan or community title scheme) and is attached to only one other dwelling.

22 Section 4(1) of the EPA Act includes the following relevant definitions:

“ development means:

(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.
environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings.

23 Sections 110, 111 and 112 of the EPA Act relevantly provide:

“ Part 5 Environmental Assessment
Division 1 Preliminary
110 Definitions
(1) In this Part:
activity means:
(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is prescribed by the regulations for the purposes of this definition, …
approval includes:
(a) a consent, licence or permission or any form of authorisation, and
(b) a provision of financial accommodation by a determining authority to another person, not being a provision of such financial accommodation, or financial accommodation of such class or description, as may be prescribed for the purposes of this definition by a determining authority so prescribed.

determining authority means a Minister or public authority and, in relation to any activity, means the Minister or public authority by or on whose behalf the activity is or is to be carried out or any Minister or public authority whose approval is required in order to enable the activity to be carried out. …

Division 2 Duty of Determining Authorities to consider environmental impact of activities
111 Duty to consider environmental impact
(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. (emphasis added)
…
Division 3 Activities for which EIS required
112 Decision of determining authority in relation to certain activities
(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless:
(a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity:
(i) prepared in the prescribed form and manner by or on behalf of the proponent, and
(ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner, … (emphasis added)

24 Section 115 of the EPA Act provides for regulations to be made concerning, inter alia, “(a) the factors to be taken into account when consideration is being given to the likely impact of an activity on the environment…”. Regulation 228 of the Environmental Planning and Assessment Regulation 2000 prescribes the following factors:

“(a) any environmental impact on a community,
(b) any transformation of a locality,
(c) any environmental impact on the ecosystems of the locality,
(d) any reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality,
(e) any effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations,
(f) any impact on the habitat of protected fauna (within the meaning of the National Parks and Wildlife Act 1974),
(g) any endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air,
(h) any long-term effects on the environment,
(i) any degradation of the quality of the environment,
(j) any risk to the safety of the environment,
(k) any reduction in the range of beneficial uses of the environment,
(l) any pollution of the environment,
(m) any environmental problems associated with the disposal of waste,
(n) any increased demands on resources (natural or otherwise) that are, or are likely to become, in short supply,
(o) any cumulative environmental effect with other existing or likely future activities.”

Statutory Provisions concerning Delegations

25 Section 49 of the Interpretation Act 1987 provides:

“ Delegation of functions
(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.
(2) A delegation:
(a) may be general or limited,
(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and
(c) may be revoked, wholly or partly, by the delegator.
(3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
(4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function.
(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.
(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.
(7) If:
(a) the exercise of a function by a person or body is, by virtue of an Act or instrument, dependent on the opinion, belief or state of mind of the person or body in relation to any matter, and
(b) the person or body has delegated the function to some other person or body,
the function may be exercised by the delegate on the opinion, belief or state of mind of the delegate in relation to any such matter.
(8) If a function is delegated to a particular officer or the holder of a particular office:
(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and
(b) the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
(9) A function that has been delegated may, notwithstanding the delegation, be exercised by the delegator.
(10) This section applies to a sub-delegation of a function in the same way as it applies to a delegation of a function, but only in so far as the Act or instrument that authorises the delegation of the function also authorises the sub-delegation of the function.”

26 Section 153A of the EPA Act provides:

“ Delegation by public authorities
(1) A public authority (other than a council) may delegate any function conferred or imposed on the public authority by or under this Act (other than this power of delegation) to:
(a) in the case of a public authority other than a chief executive officer—any officer or employee of the public authority, or
(b) in the case of a chief executive officer—any officer or employee of the public authority of which the chief executive officer is the chief executive officer.
(2) An officer or employee of a public authority (other than a council) may delegate any function conferred or imposed on the officer or employee by or under this Act (other than this power of delegation) to any other officer or employee of the public authority. However, a function conferred or imposed on the firstmentioned officer or employee by delegation may not be subdelegated unless the subdelegation is authorised by the terms of the delegation.
(3) A power conferred by this section is in addition to any other power of delegation of the public authority, officer or employee or any power of a person to exercise functions on behalf of a public authority.”

27 Section 15 of the Housing Act provides:

“ Delegations
(1) The Corporation may delegate to a person the exercise of any of its functions, other than this power of delegation.
(1A) A delegate of the Corporation may sub-delegate to a person any function delegated by the Corporation if the delegate is authorised to do so by the Corporation.
(2) The Director-General may delegate to an officer of the Department, or to the Corporation, the exercise of any of the Director-General’s functions under this Act (including any function delegated to the Director-General under this section), other than this power of delegation.
(2A) A delegate of the Director-General may sub-delegate to an officer of the Department any function delegated by the Director-General if the delegate is authorised to do so by the Director-General.
(3) The Registrar may delegate to an officer of the Department, or to the Corporation, the exercise of any of the Registrar’s functions under this Act (including any function delegated to the Registrar under this section), other than this power of delegation.”

Chronology of Relevant Events

28 The State Government began putting relevant delegations in place within its housing agencies on 18 June 2009, and restructured those agencies in July 2009, under the Director-General of Human Services, Jennifer Mason (Exhibit R2, fols 609-637). Relevant delegations and sub-delegations were gradually made between 18 June 2009 and 4 March 2010 (Exhibit R2, fols 590-608).

29 The AHSEPP commenced on 31 July 2009. From November 2009 onwards Housing NSW developed “checklists” to ensure “proper” assessments of “Part 5” projects. (See Exhibit R2, fols 262-291), and also developed a suite of “standard” conditions.

30 The survey of the subject site among the documentation before the court is dated 23 September 2009.

31 On 7 October 2009, Council granted consent (09/254) to a privately proposed project involving demolition of all improvements on the subject site, removal of some vegetation, subdivision of the site (into two lots of 685² and 565m² approximately), and the construction on it of two adjoining two-storey dwellings with a common wall, and a garden pavilion at the rear of each (see Exhibit R2, fol 305). This decision represented approval, in concept, of an increase in residential density in the ANEF 25-30 contour and zone 2(a). (While Council’s 2009 “Strategy 2031” document (“CM10” in Exhibit C4) has as one objective minimising residential development in locations “heavily affected by aircraft … noise”, that is only one impact considered, and the document states, as another Council objective, quality infill housing development on small lots).

32 On 8 October 2009, Council officers Peter Fitzgerald (General Manager) and Rodger Dowsett met Housing NSW officers, its agents, and other representatives to discuss a social housing project for the subject site (see Exhibit R2, fols 457-9). This was the only stimulus package site in Council’s area, and it was made clear to Council that, as a result of a site analysis conducted by SMEC Australia Pty ltd (which had a senior representative at the meeting), a seven-unit development was proposed. A later Housing NSW letter (dated 18 November 2009) noted that “the development has been designed in consultation with Council”. Contracts had been exchanged for the acquisition of the site, but the purchase had not been settled. Council raised some merit concerns and nominated Catherine McMahon (its Chief Town Planner) as its contact person in respect of the project.

33 At that 8 October meeting, Council urged Housing NSW to undertake “acoustic assessment” of the project in view of the fact that the subject site was “heavily affected by aircraft noise”. On 13 October 2009, Day Design Pty Ltd provided an acoustic report for the site (Exhibit C3), and on 23 October 2009 Renzo Tonin & Associates (NSW) Pty Ltd (Exhibit R2, fols 485-8) provided a review of that report.

34 Late in October 2009, design plans for the project were drawn up (many are dated 27/28 October).

35 On or about 18 November 2009, Council and nearby residents were notified of the seven-unit AHSEPP proposal (see Exhibit C1 and Exhibit R1, fols 218ff), and, SMEC was engaged to review any environmental factors involved in, and assess any environmental impacts caused by, the proposal. On 26 November 2009, Housing NSW completed a checklist designed to achieve a “proper” Part 5 environmental impact assessment (see Exhibit R2, fols 262ff). The court finds no fault with it.

36 The notice given of the proposed development to Council and others included the site survey plan, architectural plans, shadow diagrams, landscape plans, schedule of material and drainage plans. Council was “respectfully requested” to make available the second copy provided of those materials for viewing by the general public.

37 Council was invited to forward a submission to SMEC, and assured that any written submissions received would be included in that environmental impact assessment (‘EIA’), and taken into consideration in finalising and assessing the development proposal, and that the development proposal and EIA would be separately reviewed by an independent town planning consultant, before being determined by the Chief Executive, Housing NSW. The Corporation specifically encouraged any comments from Council in relation to clauses 40(4) and (5) of the AHSEPP, and also specifically sought recommendations from Council in respect of conditions that should be applied to any approval, notably those that would relate to Council’s assets and infrastructure. Those recommended conditions would be considered in the EIA and in the final determination of the project by the Chief Executive.

38 On 4 December 2009, tenders were invited; on 10 December 2009, the plans ultimately approved for the project (Exhibit R3) were finalised; and on 17 December 2009, the project architects (‘dKO’) completed their design statement for the project (Exhibit R2, fols 288-9), said to be based on “extensive site analysis to provide an appropriate urban response”. (See also “certificate of design compliance” at fols 411-2).

39 The date of completion of Housing NSW’s purchase of the subject site is not in evidence, but it presumably occurred not later than in this December timeframe.

40 On 18 December 2009 Council responded to SMEC, and Housing NSW began considering a tender from John Michael and his company Boronia Estates Pty Ltd, lodged on that date.

41 Catherine McMahon prepared Council’s response. That letter, dated 18 December 2009 (Annexure A to her affidavit 23 March 2010, and Exhibit R2, fols 415-418), noted the Council’s “long standing objections to the use of State Legislation to determine developments that have the potential to affect the amenity of its local residents” on the basis that the Chief Executive of Housing NSW does not have the same accountability to the local community as the duly elected Council. Council considered the housing proposal to be overdevelopment of the site, and objected to some possible overlooking of properties fronting Florence Street. The letter drew attention to Council’s approval of the dual two-storey project which Council said “contributed positively to the streetscape and public domain”. Council submitted that the Housing NSW development was inconsistent with both the primary and secondary objectives of the 2(a) Residential zone set out in the LEP, and unsuitable as an exception to the general “unacceptability” of residential development on sites between the ANEF 25 and 30 contours, as provided in Council’s aircraft noise DCP. Council wanted a condition imposed on any Housing NSW approval to require indoor areas to comply with the Day Design report, the Australian Standard, and the Council’s standard noise criteria. Council also suggested a s 88B instrument.

42 On 11 January 2010, the “Gate 3 Checklist” (Exhibit R2, fols 290-1) was completed by the project management office (‘PMO’), and SMEC reported (Exhibit R2, fols 292-455). The report was prepared and signed off by SMEC’S Senior Planner, Sarah West, and accompanied by a ‘Statement of Compliance with Part 5’, signed by SMEC’s Manager Natural Resources & Planning, Ian Irwin (Exhibit R2, fols 294, and 360-363). The SMEC report was sent to Daniel Bushby of Civic Approvals for independent review.

43 On 22 January 2010, Housing NSW wrote to Boronia advising that it was the preferred tenderer.

44 On 11 February 2010, Bushby reported on his review (Exhibit R2, fols 576-7), and Housing NSW’s Manager, Development Assessment Review Team, Mark Shanahan, signed off on a “Determination Report”.

45 On 12 February 2010, the project approval, including conditions and plans, was signed off by Catherine Hicks, Housing NSW’s Manager Portfolio Strategy and Planning (Exhibit R2, fols 578-589).

46 On 17 February 2010, Boronia signified its acceptance of Housing NSW’s offer dated 22 January 2010.

47 On 19 February 2010, Housing NSW officially notified Council of the AHSEPP determination, and demolition work commenced. The plans enclosed with the determination included many dated 10 December 2009 and at least one dated later than that, indicating that variations had been made to the initial plans during the planning and consultation phase which followed the 18 November 2009 notification.

48 On 18 March 2010, Council protested to Housing NSW and threatened these present proceedings. Demolition had occurred by that time. An undertaking was sought that no building work would occur pending the determination of the class 4 proceedings. That letter was received by Housing NSW at approximately 3pm on 18 March, but Morgan says he did not see it at the time. He would expect it to have been referred to his superiors on delivery. No undertaking was given to Council.

49 On 19 March 2010, Housing NSW wrote to Boronia engaging it to carry out the project, but the formal contract document (dated 19 March – see Exhibit C6) was not executed (by Housing NSW Officer Kerry McKenzie) until some time later (Morgan could not indicate exactly the date). It provided for completion within 28 weeks of 22 February 2010.

50 On 23 March 2010, the final construction drawings were completed, and the class 4 summons was issued. Morgan was made aware of the proceedings some days later. The court notes that no interlocutory relief was sought.

51 Pikes Lawyers (acting for Housing NSW) responded to Council’s solicitors on 1 April 2010, making clear that the project would proceed, as “it is not considered that your client’s claim has any basis”.

52 On 16 April 2010, the court made agreed directions.

53 On 20 May 2010, Council’s solicitors wrote to Pikes, putting the respondent on notice that it continued with the construction stages of the development at its own risk. The letter continued:

“… when the Court turns to the question of discretion, we will rely upon the early commencement of these proceedings, our earlier correspondence and this letter as a basis for arguing that the Court should refuse to decline to grant relief based upon the fact that the building may be half way or further completed taking into account these overall circumstances.
If the construction work continues we will also, in the circumstances, have to seek further orders over and above those currently sought which would require the demolition of such structures”.

54 On 21 May 2010, the court allowed the Council to amend its summons by consent, and made further directions. Again no interlocutory relief was sought.

55 On 4 June 2010, the court made further directions by agreement, and fixed the hearing of the matter for 11-12 August.

56 Between 3 and 28 June 2010 particulars were requested, provided, and canvassed (see Exhibit R1, fols 17-24).

57 During June, according to Morgan, Housing NSW reviewed its contact documents and arranged with Boronia for mechanical ventilation to be incorporated into the project. He testified that the decision was not influenced by any evidence filed by the Council in these proceedings.

58 On 2 July 2010 the court made further directions by agreement.

59 On 11-12 August 2010 the court heard the matter.

The Evidence
Affidavits

60 Apart from the affidavit evidence of Mr Vevers, Mr Morgan, and Ms McMahon, the court had to consider the oral evidence of Morgan, and the large volume of documentary material tendered. Many of the documents to which Ms McMahon referred in her affidavits were tendered as exhibits, and some provided useful background to the issues raised by Council, but I ruled out, as irrelevant under s 55 of the Evidence Act, to the court’s task on this challenge, (1) her expressions of opinion as to what the documents said and/or meant, (2) her opinions critical of the AHSEPP process followed in this case, and (3) the evidence Council obtained from acoustic expert Graham Atkins, who examined the two acoustic reports which had been obtained by the respondent. All the documents in evidence speak for themselves.

61 As cl 8 of the AHSEPP gives its provisions primacy over the instruments and policies upon which Council would rely in determining the subject application, their evidence, however expert in character, was not relevant. This is not a case where an environmental impact statement (as required in some cases by the EPA Act) is under scrutiny. C.f.Prineas v Forestry Commission of New South Wales (‘Prineas’) (1983) 49 LGRA 402, noting Cripps J’s relevant remarks (at 417):

“ The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations. In matters of scientific assessment it must be doubtful whether an environmental impact statement, as a matter of practical reality, would ever address every aspect of the problem. There will be always some expert prepared to deny adequacy of treatment to it and to point to its short-comings or deficiencies.”

The Bundle

62 The respondent tendered a “bundle” running to 655 folios, approximately one quarter of which (Exhibit R2, fols 292-455) comprised the SMEC environmental assessment report and its many appendices, after which the bundle contains a further 117 folios (Exhibit R2, fols 456-573) of “specialist reports” and other “supporting documentation”. (Not all the nominated reports are included in the exhibit, but the Tonin acoustic report is – at fols 484-8). It is clear from the bundle, and from the index to the SMEC report itself (at fols 295-6), that the Day Design acoustic report was not in the documents submitted to Ms Hicks for final approval of the project.

63 Section 5.7 of the Day Design report (Exhibit C3, at p9) adopted the recommendation in the Australian Standard (Exhibit C5, p14, cl E3.3.6) that mechanical ventilation (air conditioning) should be installed in such a development. The Tonin review of the Day Design report (Exhibit R2, fols 485-8) was noted in the SMEC report (fols 326-7). It made a series of recommendations which were translated to plan “0000”, the cover page of the plans stamped “approved” on 12 February 2010. Those recommendations did not include mechanical ventilation. SMEC observed (at fol 327) that the architects had designed the project in accordance with those recommendations, but plan “0000” was not incorporated into their project approval (by virtue of the listing of plans in condition 1 – see Exhibit R2, fol 579), and there was in that approval no requirement that mechanical ventilation be installed, a shortcoming rectified during construction (see [57] above).

The SMEC Report

64 Apart from that evidence on acoustic treatment, the breadth of the assessment undertaken by SMEC can be gleaned only from closely examining its report, which the court has done.

65 The key issue to be addressed by that assessment (under s 111) was whether any element of “significant” environmental impact was identified, such as to trigger the requirement (in s 112) for a full environmental impact statement to be carried out.

66 In the Executive Summary of the SMEC report (fol 297) the following appears:

“ The environmental impact assessment (EIA) determined that redevelopment would have no additional noted impacts during the operational stage of the project and that the greatest potential for environmental impact would be as a result of the construction activities.
It was determined that during the construction stage, there is a potential for impacts on the local community such as noise and vibration, air quality, water quality and traffic. These impacts were not considered to be significant and therefore an Environmental Impact Statement (EIS) in accordance with the requirements of Part 5 of the EP&A Act for the works is not required. In addition the impacts will be minimised through the implementation of the mitigation measures outlined within Section 7 of this document to effectively manage soil and water, noise, dust/air, waste and traffic impacts.
It is recommended that Housing NSW approve the proposed development in line with the recommendations made in this document.”

67 Throughout the SMEC report every aspect of the development is discussed in great detail – parking; presentation to the street; removal of one tree described as “significant”, the retention of which would have resulted in a loss of yield; sections on flora and fauna, contamination, access, drainage and hydrology, fire, social/economic environment, ambient noise; absence of threatened species or biodiversity conservation issues.

68 The relevant planning framework is outlined in section 5 of the SMEC report (commencing at fol 308). The relevant provisions of the EPA Act and the AHSEPP are set out and compliance tabulated (see fols 309-326), including assessment against the requirements of the SEPP (Housing for Seniors or People with a Disability) 2004, the Seniors Living Policy Urban Design Guidelines, the LEP, and Council’s DCPs (whether or not such assessment is strictly necessary). Minor non-compliances with design requirements are very frankly dealt with in those tables.

69 The SMEC report (in sections 5.9 and 5.10) went on to examine the implications of other NSW legislation concerning water, threatened species, contamination, etc, and various elements of Commonwealth legislation. No concerns were noted or expressed.

70 Section 6 (fols 332-6), entitled “Notification, consultation and consideration of responses received”, summarises the notification carried out pursuant to cl 40(4). Ten occupiers and Botany Bay Council were notified. Council and five landowners responded, and their expressed concerns and SMEC’s responses are set out at length. Section 7 follows (fols 337-49), with an assessment of various impact factors, visual impact, privacy issues, overshadowing, traffic, noise and vibration. Those impacts which required attention were considered to be adequately addressed in the recommended conditions of approval.

71 Section 8 (fols 350-352) contains checklists for the matters raised by the various sub-sections of s 111, and the factors listed in regulation 228. Sub-sections (2), (3) and (4) of s 111 (national parks and wildlife, threatened species conservation, wilderness, and other habitat issues) are not engaged by the project. The regulation 228 items are assessed as temporary and/or minor, and mitigation measures detailed in section 7 are identified as adequate.

72 All of Housing NSW’s “standard conditions” of any relevance were recommended by SMEC for this project. (See the standard conditions at fols 425-439). The few standard conditions which were omitted or altered in some respect are highlighted (in table 15 within section 9, fols 353-356). The applicability or otherwise of s 94 contribution arrangements is also covered (at fol 356).

73 The conditions actually imposed on the approval can be found at fols 579-589 of Exhibit R2.

74 As the above summary of the SMEC report is necessarily concise, I now set out the report’s conclusion in more detail (Exhibit R2, fol 357, section 10):

“ 10.1 Summary of key issues raised in assessment
The proposed development has been considered in terms of the provisions of Section 111 of the EP&A Act and Clause 228 of the EP&A Regulation. In this regard, it should be noted that following an analysis of the impacts associated with the proposed development activity it was determined that an environmental impact statement is not required as the proposed development does not significantly affect the environment.
As demonstrated in this EIA, the proposed development is considered to be generally consistent with the relevant objectives and standards set out in Botany Council LEP and various Botany DCPs, and addresses the HNSW design requirements and the design principles and better practice set out in the Seniors Living Policy: Urban design guidelines for infill development. The proposal also complies with the requirements of Clause 10 of AHSEPP and the standards set out in Clause 14 of AHSEPP.
In addition, as demonstrated by the environmental impact analysis and assessment undertaken in this EIA, the proposed development will have environmental impacts that can be mitigated to an acceptable level in accordance with current acceptable standards, and a number of positive effects on both the natural and built environments, as well as a range of social and economic benefits.
It is considered that the proposed development, given its residential nature, scale and location, will be sympathetic with the existing built and natural environments. Further, the subject site, given its location, size and natural features, and given it is not subject to any significant hazards, is considered to be suitable for the proposed development.
The proposed development will allow HNSW to reconfigure and increase its housing stock, thereby assisting it to satisfy constantly increasing demand for social housing for people on low to moderate incomes, and improve the sustainability of residential development within its portfolio. Thus, the proposed development is clearly in the public interest.
10.2 Recommendation
Department of Housing should approve the project for the construction of 7 dwellings and 2 car parking spaces.
In summary, the proposed development is not inconsistent with the existing neighbourhood character, will not have a detrimental impact on the streetscape or amenity levels for surrounding neighbours and meets the specifications of HNSW design requirements without significantly affecting the environment”.

75 The conclusion and recommendation of the SMEC report are followed by certification in “Appendix A”, a Statement of Compliance, to which I have already referred (fols 359-63 and [42] above), that SMEC had taken into account to the fullest extent possible, all matters affecting or likely to affect the environment and “the activity will not have a significant impact on the environment, in order to satisfy the requirements of Part 5 of the EP&A Act”.

76 Other appendices then included in the bundle comprise a landscaping schedule (fols 364-5), section 149 certificate (fol 366), the Aircraft Noise DCP (fols 391ff), the architect’s certificate of design compliance, all the submissions (including Council’s submission of 18 December 2009), the Housing NSW conditions of approval for residential developments carried out and assessed under part 5, a heritage search, and a species report.

The Bushby Review

77 The independent review carried out of the EIA (including plans, submissions, etc), by Daniel Bushby of Civic Approvals, supported the findings of the statement of compliance, subject to design modifications to address, by added conditions, the issues of privacy and solar access. This included relocating block 3 1m to the south-west to improve solar access. That was agreed by Housing NSW’s project management office. The independent review findings were reflected in the additional conditions 77 and 78, and a further condition was proposed (79), to require eaves or awnings over all unprotected window openings.

78 Bushby concluded his report with the following “advice” (fol 576), largely based on the EIA document:

The effects on the environment of the project have been taken into account to the fullest extent possible.
The project if carried out will not significantly affect the environment and hence no EIS is required.
Modifications are identified to address the issues of privacy and solar access by two additional conditions (drafted on fol 577).
The resultant development proposal has planning merit.

The approval

79 As earlier noted ([45]), Ms Hicks’ signed approval (followed by the conditions imposed) appears at fol 578 of Exhibit R2.

Discussion

80 The court is left in some doubt as to what Council is actually seeking to achieve in these proceedings. Courts do not engage in hypotheticals, nor give advisory opinions. There must be some utility in granting relief. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425, at [22], the Federal Court discussed the utility of merely marking its disapproval of conduct. See also Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297, per Barwick CJ at 305; Re an application by Tooth & Co Ltd (1978) 19 ALR 191, per Brennan J; Klefend Pty Ltd v Santom Pty Ltd & Anor [1994] NSWLEC 201, per Pearlman ChJ; Bass v Permanent Trustee (1999) 198 CLR 334.

81 The summons (even as amended) seeks only declarations and an order stopping the project, but the building work is almost complete, and questions of utility and discretion must arise. Counsel for the Council says that State government agencies should “do the right thing” without needing any injunctive orders to be made against them. The respondent should have stopped the project when the Council’s challenge was launched. He seemed to accept that the court would hesitate to order demolition, but said the court should “fashion appropriate relief” – he appeared to ask for a demolition order, to be stayed while an EIS is prepared, and/or the project is reconfigured in some “acceptable” way.

82 The matters argued to underpin the relief sought would appear to be – the project is not appropriate for the AHSEPP; it should be in an area zoned 2(b) rather than 2(a); it lacks merit in any event; it will have an unacceptable impact, not only on the “environment” as widely defined, but on “planning in the area”; the assessment process was inadequate, but should not, anyway, have been carried out by an organisation outside the respondent; because the project will cause self evident environmental harm, an EIS was required, but not done; Ms Hicks lacked the necessary delegation, and did not fulfil its obligations if she had it; failure to consider, specifically at the time of approval, the Day Design report and the need for mechanical ventilation is fatal to the approval; while internal noise may be addressed by the added mechanical ventilation, external noise impacts mandate that the project not be approved.

83 This project serves an important public interest, but that does not absolve the proponent from the need to comply strictly with the law, nor the court’s duty to enforce it. Obviously in these proceedings the court is not concerned with Council’s merit issues.

84 Under s 111 the respondent in this case was obliged to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment”, widely defined, by reason of the project. The courts have made clear that compliance with these terms is mandatory, but must be viewed in the light of what is “practicable” and/or “reasonable”. See Prineas, F. Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353, and Guthega Developments Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (1986) 7 NSWLR 353, 61 LGRA 401.

85 That Ms Hicks enjoyed the necessary delegated authority to act in the name of the Corporation is beyond any reasonable doubt. (See the delegations at Exhibit R2, fols 590ff). She is a “category 1” officer (see fol 606), and her delegation (in the schedule at fol 607) refers to cl 40 of the AHSEPP, Part 5 of the EPA Act, and a relevant provision of the Housing Act. The power or function is described as “approval of residential development following assessment under Part 5 … and after taking into account any response to the notice … and taking into account the seniors living urban design guidelines for infill development March 2004”. Section 49(4) of the Interpretation Act allows the sub-delegation of any function incidental to the approval process. Sub-delegations are clearly provided for in the delegations.

86 Accordingly, there is nothing to forbid or preclude the Corporation or its delegate, using expert external advisors, such as SMEC, to prepare such material for its consideration, nor someone such as Bushby to review it. Indeed, there is some merit in Mr Tomasetti’s submission that when a government agency is empowered to grant itself an approval, this practice adds appropriate transparency to the process. The materials also make clear that the “collective knowledge experience and expertise” available to it within Housing NSW was also drawn upon. See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; In re Golden Chemical Products Ltd [1976] Ch 300; Bushell v Secretary of State for the Environment [1981] AC 75, at 95G; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121; but c.f. Tickner v Chapman (‘Tickner’) (1995) 57 FCR 451, Hamman v Lake Macquarie City Council [1999] NSWCA 82, and GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 where there were specific strictures on how the decision-maker must personally act. Even so, Tickner does not totally exclude the decision-maker’s capacity to consider a matter, relying on another person’s description or summary of it – see discussion in cases such as Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396, at [168]ff, and Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381, at 426 [211].

87 All the material prepared as I have described was checklisted, and then collated by Shanahan to be placed before Hicks. She was entitled to rely upon it. There is no evidence that she did other than give it her close attention “to the fullest extent possible”. There is no evidence that she “abdicated” her precise responsibilities. No adverse interference can or should be drawn from the dates on the various documents involved – suspicion is not enough (see Parramatta City Council v Hale (1982) 47 LGRA 319, at 345) – and there is a presumption of regularity.

88 The standard Housing NSW conditions were tailored – by SMEC, and again by Bushby – to meet the actual circumstances of the case. There is no evidence at all that they infringe the principles laid down in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186.

89 There are no grounds to invalidate the approval on the basis that the Tonin recommendations were not incorporated in the actual consent, and did not spell out the Day Design recommendation, taking up the AS2021 stipulation, regarding mechanical ventilation. The Corporation in the course of managing and supervising the project “on the ground” realised the oversight and rectified it by adding mechanical ventilation of the construction contract. Transport Action Group Against Motorways Inc v RTA (1999) 46 NSWLR 598.

90 I am satisfied that the s 111 process was appropriately carried out; its clear findings were that (1) the environmental impacts of the project were not so “significant” as to trigger s 112, and (2) all of them were completely addressed by the imposition of appropriate conditions.

91 The submissions that the project fails to qualify for consideration under the AHSEPP, either because it cannot be appropriately characterised, and/or because of the access arrangements for the living areas of the two upstairs units, have no substance or merit and are rejected. Clearly this is “multi dwelling housing” as defined in the Standard Instrument (see [21] above), and clearly there is “ground floor access” to the upstairs units, and it does not matter that one does not walk through the front door immediately into a living space on ground level.

92 So far as it is submitted that there is “environmental harm” caused to “planning in the area”, the AHSEPP prevails where it is properly engaged, and an approval granted under it will not set a precedent for high density housing beyond the coverage of that instrument.

Conclusion

93 The court has concluded that the Council’s challenges must fail. The question of discretion was argued but, in view of my conclusion, it does not need to be determined.

94 Having been unsuccessful in its challenges the Council should expect to be ordered to pay the respondent’s costs. However, as I have not yet heard the parties on that question I will formally reserve it. It should be capable of agreement, subject to the right to have costs assessed.

95 The exhibits may all be returned.

Orders

96 The orders of the court are:

1. The applicant Council’s amended summons is dismissed.

2. The question of costs is reserved.

3. All the exhibits are returned.