Coffs Harbour City Council v Arrawarra Beach Pty Ltd

[2006] NSWLEC 365

Land and Environment Court

of New South Wales

CITATION:	Coffs Harbour City Council v Arrawarra Beach Pty Limited [2006] NSWLEC 365
PARTIES:	APPLICANT Coffs Harbour City Council RESPONDENT Arrawarra Beach Pty Limited
FILE NUMBER(S):	40320 of 2006
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- misleading advertisement of development application - failure to accord procedural fairness - failure to consider relevant consideration - failure to submit species impact statement.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 5A, s 78A(8)(b), s 79A(2), s 79C Land and Environment Court Act 1979 s 25B Marine Parks Act 1997 s 6 Coffs Harbour Local Environmental Plan 2000 cl 22(4)
CASES CITED:	Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 50 NSWLR 312; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 ; Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85 ; Hardi v Woollahra Municipal Council (Land and Environment Court of NSW, Cripps J, 17 December 1987, unreported ; Franklins Limited v Penrith City Council [1999] NSWCA 134 ; Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91 ; Monaro Acclimatisation Society v Minister for Planning (Land and Environment Court of NSW, Stein J, 2 March 1989) ; Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88; Selby v Pennings (1998) 102 LGERA 253 ; The King Against Connell And Another; Ex Parte The Hetton Bellbird Collieries Limited And Others (1944) 69 CLR 407; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
DATES OF HEARING:	24/05/2006, 25/05/2006, 31/05/2006, 01/06/2006
DATE OF JUDGMENT:	06/23/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M G Craig QC with Mr M D Seymour (Barrister) SOLICITORS MBT Lawyers RESPONDENT Mr P R Clay (Barrister) SOLICITORS Shanahans Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

23 June 2006

40320 of 2006 Coffs Harbour City Council v Arrawarra Beach Pty Limited

JUDGMENT

1 Talbot J: On 11 January 2005 Arrawarra Beach Pty Limited (“the respondent”) lodged development application 971/05 with Coffs Harbour City Council (“the Council”) seeking consent for the removal of approximately 45 trees on land described as Lot 12 DP 835612 and Lot 1 DP 789002 known as 46 Arrawarra Beach Road, Arrawarra. The land is bounded by Arrawarra and Yarrawarra Creeks to the south and east.

2 The land comprises two adjoining allotments. Lot 1 DP 789002 is used as a tent camping area and Lot 12 DP 835612 is used for the purposes of a caravan park. Both allotments are zoned part 2A Residential Low Density and part 7A Environmental Protection Habitat and Catchment. Each lot borders the Solitary Islands Marine Park.

3 By Notice of Determination dated 18 November 2005 the Council granted consent for removal of some of the trees subject to conditions. Condition 1 listed 31 trees approved for removal. The majority of these trees are located on Lot 1 DP 7890002. The trees to which the consent relates include the species swamp mahogany, paperbark and sheoak.

4 The Council seeks the following relief:-

1. A declaration that the development consent issued by the Applicant to the Respondent dated 18 November 2005 in relation to development application 971/05 is invalid and/or void.

2. A declaration that a Species Impact Statement prepared in accordance with the Threatened Species Conservation Act was required to accompany the development application.

3. An order that proceedings No. 10014 of 2006 relating to a condition of the subject development consent be dismissed.

5 The Council claims that the purported grant of consent is unenforceable for the following reasons:-

1. The development application was not notified or advertised as an application for specified development in accordance with s 79A(2) of the EPA Act in that it was not notified or advertised in accordance with the provisions of the Council’s Development Control Plan – Notification.

2. In the alternative, the development application was advertised in a manner that was misleading or likely to mislead.

3. Further in the alternative, the Council failed to comply with the obligations to afford natural justice or procedural fairness in advertising.

4. The development was likely to significantly affect threatened species, populations or ecological communities and the factors required to be taken into account in accordance with s 5A were not considered.

5. The development application was not accompanied by a Species Impact Statement (“SIS”) in breach of s 78A(8)(b) of the EPA Act and cl 50 Item 2(1)(f) of Part 1 Schedule 1 of the EPA Regulations.

6. The Council failed to consider the objectives of the Marine Parks Act 1997 as required by s 79C of the EPA Act and cl 22(4) of the Coffs Harbour Local Environmental Plan 2000 (“the LEP”).

7. The Council failed to consult with the Solitary Islands Marine Park Authority in accordance with cl 22 of the LEP.

Whether SIS required

6 In order to determine whether the development the subject of the application for development consent is likely to significantly affect a threatened species, population or ecological community or their habitat, s 5A of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) requires the consent authority to consider an eight part test. There is a convenient outline of the approach to be taken in applying the eight part test in the recent judgment of this Court in Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85 so that it is not necessary to repeat the summary of points made at [15] – [19] in that decision.

7 Broadly stated it is the applicant’s case that the Court would find as a matter of fact that there is a significant effect on a threatened species, population or ecological community or their habitat as a consequence of carrying out the development. The following issues arise:-

1. Whether the development, the subject of the consent is likely to have a significant effect on:-

a) The endangered ecological community of Swamp Sclerophyll Forest (SSF);

b) Petaurus norfolcensis - the Squirrel Glider;

c) Chalinolobus picatus

- the Hoary Wattled Bat.

8 In Gales Pty Limited v Tweed Shire Council and the authorities referred to therein it was recognised that the Court should have regard to the precautionary principle when it determines whether an SIS is required to accompany the development application. The failure to support a development application with an SIS where there is likely to be a significant effect within the meaning s 78A(8)(b) of the EPA Act is a jurisdictional precondition to the consideration and determination of a development application (Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 50 NSWLR 312; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55).

9 Subsection 78A(8)(b) of the EPA Act provides:-

(8) A development application must be accompanied by:

….
(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

10 Court Appointed Expert Brian Wilson has provided evidence in the form of a report, conferred with the respective individual experts relied upon by the parties and gave oral evidence concurrently with the latter experts. Notwithstanding the diminished state of SSF remaining on the site he nevertheless regards the proposed clearing of the native vegetation and removal of dead wood from the site as a threatening process constituting “destruction of a sufficient proportion of one stratum such that it will result in the long term modification of structure, composition and ecological function of the stand.” Moreover although the destruction of such a small area of degraded vegetation would not normally be likely to have a significant effect on the community itself the “habitat features of this sample of the ecological community elevate its value” particularly in regard to its use by the Hoary Wattled Bat.

11 SSF is a known foraging habitat for the Hoary Wattled Bat and according to Mr Wilson there is a potential for the lifecycle of any population of the species to be disrupted by the removal of the trees. Although there is no direct evidence that Squirrel Gliders use the site, a local population could be placed at risk and it would be reasonable to carry out a comprehensive field investigation in order to ascertain whether the destruction of the trees will significantly affect a local population of Squirrel Gliders.

12 Travis Peake, an ecology manager called as an expert on behalf of the respondent expressed doubt that SSF is present in the study area and that in any event the site contains lower quality habitat for Hoary Wattled Bats. There is an element of disagreement between the experts in respect of a requirement for foraging habitat beyond the extent of the study area for the survival of the Hoary Wattled Bat. There appears to be more consensus that there is a likely to be extensive foraging habitat for the Squirrel Glider in the local area and that there is no substantial barrier to the movement of the Squirrel Glider between the study area and adjoining habitat.

13 The respondent places significant weight on what it describes as ameliorative measures to be taken prior to the removal of the trees. These measures include inspection and opportunity for the animals to vacate any habitat occupied by them on the site prior to the destruction of the trees. There is also a proposal that compensatory planting will take place. In relation to the latter it is obvious that the utility of the compensatory planting will not be immediate, particularly in terms of the generation of hollows and the like which can take many decades to develop. The proposed checking and removal or disbursement of animals actually using the site does no more than minimise the risk of injury to individual members of the species. It plays no ameliorative role in respect of the long term impact by the total destruction of part of a relevant habitat.

14 I have not paid any significant regard to the evidence of Gary Leonard, a specialist in botanical ecology employed by the Council. I found his evidence superficial and artificial and he made a curious distinction between his opinion as an individual and as a public servant. Nevertheless I was impressed by the evidence of Mr Wilson and I am satisfied that he has raised a sufficient doubt about the more confident approach taken by Mr Peake (who to some extent relied upon previous investigation and assessment by others) to enable me to find that on the balance of probabilities, applying the eight part test and the precautionary principle, there is likely to be a significant effect on at least the Hoary Wattled Bat and possibly the Squirrel Glider and that part of their habitat within the site. Although the impact on the SSF species may not be as critical, nevertheless the extent of removal of the somewhat degraded but not insignificant stand of trees will be a significant effect. Although there might be some doubt that the SSF on the site is a viable population there is no doubt that its lifecycle is likely to be disrupted by the destruction of individual trees. I am not able to finally determine whether the SSF is a critical habitat but as it is recognised as being at least to some extent a habitat for either of the identified species it will be significantly affected by the clearly recognised threatening process of chopping the trees down.

15 For the above reasons I have therefore formed the view that there is likely to be a significant effect on the identified threatened species by the carrying out of the proposed development and accordingly it was imperative for the development application to be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. In the absence of the species impact statement a jurisdictional precondition or fact has not been satisfied and accordingly the development consent granted by the Council is invalid.

16 It is not appropriate that the omission to provide a species impact statement be the subject of an order pursuant to s 25B of the Land and Environment Court Act 1979 as the effect of the failure to the prepare and lodge an SIS is that a fundamental requirement is outstanding and that until it is complied with there are crucial issues that cannot be resolved by simply providing the requisite documentation following a proper assessment and investigation of the site.

Advertising and notification

17 The Council argues that it failed to follow mandatory procedures relating to advertising and notification. It claims the development is specified development pursuant to s 79A(2) of the EPA Act which provides:-

(2)A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

18 It is the Council’s contention that the Coffs Harbour City Council Notification Development Control Plan (“the Notification DCP”) is a development control plan within the meaning of s 79A(2). The Notification DCP provides as follows:-

When will Development be Notified/Advertised?

General

· Adjoining landowners will be notified if in the opinion of Council the enjoyment of land (see note) [omitted] adjoining the development may be detrimentally affected by the proposed development.

· Owners of land other than adjoining land will be notified by advertisement in a local newspaper circulating in the Council area where in the opinion of Council (see note) [omitted], the enjoyment of that land may be detrimentally affected by the proposed development.

19 The respondent’s response is that if the Council’s submission is correct the section would apply to any development other than designated or advertised development. Moreover if the identification of specified development is triggered solely by the provisions of a DCP in respect of notification or advertising then the last phrase of s 79A(2) after “if” would be rendered redundant.

20 Specified development is not defined in the EPA Act.

21 I agree with the applicant’s submission that the term should be given an ordinary meaning most apt to serve the object and purpose of the EPA Act. The Notification DCP provides that notification and advertising will take place once the Council is satisfied of a particular circumstance. Accordingly if the Council becomes satisfied the particular circumstance exists the development is to be treated as specified development.

22 However there is no evidence that the Council, or any of its officers on its behalf, formed the relevant opinion regarding detrimental effect except by inference from the fact that advertisement and notification was made. Moreover there is no evidence of any other decision or policy that advertising of this particular category of development or any other type is required to be advertised. Nevertheless the provisions of the DCP can be regarded as prescriptive for those cases where the Council decides to advertise for whatever reason. The DCP contains the following note:-

The following development is not usually notified:

· Dwellings of single storey construction

· Minor alterations/additions including internal work

· Development in rural areas

· Private swimming pools or outbuildings

23 This raises an implication that all other development applications are likely to be advertised with special provisions applying to certain identified categories of development such as designated development and integrated development.

24 The Council submits that a presumption of regularity applies, that is, the Council had considered the relevant matters to form the requisite opinion prior to the notification and advertising taking place. Accordingly, because there is no evidence to the contrary, it must be presumed that the Council had considered the issue.

25 In Selby v Pennings (1998) 102 LGERA 253 at 261 Ipp J, with whom Owen J agreed, said that the presumption of regularity 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." McClellan CJ discussed the principle in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 when considering whether the council failed to have regard to a particular matter and concluded that the presumption of regularity has no relevance to inferences that may be made about a council’s consideration.

26 In The King Against Connell And Another; Ex Parte The Hetton Bellbird Collieries Limited And Others (1944) 69 CLR 407 Latham CJ analysed the circumstances where statutory power requires formation of an opinion and the decision maker misunderstands the nature of the opinion and said at p 432:-

It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed.

27 The Council’s argument is that the development application was not advertised in accordance with the Notification DCP and therefore contrary to the requirements of s 79A(2). Questions are raised by the applicant in a general sense that the advertisement was misleading and contrary to the principles of procedural fairness.

28 The development application was notified to adjoining landowners and advertised in a local newspaper, The Coffs Coast Advocate.

29 The notification letter and the newspaper advertisement referred only to Lot 12 in DP 835612 and did not refer to Lot 1 DP 782002. Therefore it is said they did not give a description of the whole of the land and further did not give a description of the land upon which the majority of the works the subject of the development application were to be carried out. In addition the advertisement referred to “No. 46 Arrawarra Road, Arrawarra” instead of No. 46 Arrawarra Beach Road, Arrawarra. There is in fact a street at Arrawarra named Arrawarra Road.

30 The Council also argues that it failed to comply with the obligations to afford natural justice or procedural fairness in advertising the development application. Moreover once the determination to advertise the development was made the Council decided to give notice of an intention to exercise its powers under the EPA Act with respect to certain land. It says that the purpose of having a policy to notify and advertise development applications is to encourage participation in the planning process. Accordingly the public will be precluded from participating when mistakes and misdescriptions are made.

31 Mr Clay argues, on behalf of the respondent, that there is no duty to afford procedural fairness in the circumstances where there is no evidence to support the finding that the advertisement constitutes the carrying out of a regular practice. Therefore it is said that there is no legitimate expectation to accord procedural fairness. Furthermore any departure from a representation does not justify intervention in the absence of unfairness.

32 The Notice of Proposed Development that was advertised contained the following:-

Any persons, including those who own land which they consider to be detrimentally affected if the above development is carried out, may object in writing to the General Manager within the time prescribed above.

33 The above extract appears to be consistent with the requirements for notification and advertising set out in the Notification DCP. In my opinion an inference may be drawn that the advertisement was published pursuant to the DCP.

34 The preamble to the DCP contains the following:-

This plan sets out the circumstances in which a development is to be notified and/or advertised.

35 The objectives of the DCP are to “encourage public participation in the development control process” and to “inform the community about potentially sensitive developments.”

36 It is accepted in this Court that the regular application of a policy to notify development applications would give rise to a legitimate expectation that such notice would be given (Hardi v Woollahra Municipal Council (Land and Environment Court of NSW, Cripps J, 17 December 1987, unreported and Rapid Transport Pty Ltd v Sutherland Shire Council (1987) 62 LGRA 88). The DCP represents a policy or practice of the Council in relation to notification and advertising.

37 In Monaro Acclimatisation Society v Minister for Planning (Land and Environment Court of NSW, Stein J, 2 March 1989) Stein J said that whilst public notice was to be in a form and manner determined by the Council it must not be relevantly misleading.

38 In Litevale Pty Limited v Lismore City Council (1997) 96 LGERA 91 Sheppard AJA said that “a notice which, because of surplusage or for some other reason is misleading or capable of being misleading in a material respect cannot be a notice …”

39 In my opinion the notice of proposed development advertised in the Coffs Coast Advocate is misleading by reason of the failure to accurately describe the land to which the development application relates in respect of the address of the property by reference to the wrong street. No such error occurred in the notification given directly to landowners. The omission of a title reference to one of the lots is not in my view a critical omission in the sense that it is a detail that would not be readily understood except by those persons with specialised knowledge. The prospect of any recipient being misled by the omission is not therefore high enough to justify a finding that the omission caused the determination to be invalid. However as the Council made the decision to publish a notice in the local newspaper for whatever reason it thereby raised a legitimate expectation that the information provided by the notice would be sufficiently accurate to enable a concerned reader to consider whether an objection would be lodged. That in my view is a fatal omission.

Clause 22 of LEP 2000

40 Clause 22(4) of Coffs Harbour City Local Environmental Plan 2000 (“LEP 2000”) provides as follows:

Land adjoining the Solitary Islands Marine Park

(4)Consent must not be granted to the subdivision of, or the erection of a building or the carrying out of a work on, land adjoining the Solitary Islands Marine Park unless:
(a)the consent authority has taken into account the following objectives of the Marine Parks Act 1997:
(i) to conserve marine biological diversity and marine habitats by declaring and providing for the management of a comprehensive system of marine parks,
(ii) to maintain ecological processes in marine parks,
(iii) where consistent with the preceding objectives:
• to provide for ecologically sustainable use of fish (including commercial and recreational fishing) and marine vegetation in marine parks, and
• to provide opportunities for public appreciation, understanding and enjoyment of marine parks, and
(b) where the use of the land after subdivision, erection of the building or carrying out of the work is likely to, in the opinion of the consent authority, have an effect on the plants or animals within the Marine Park and their habitat, it has consulted with the Solitary Islands Marine Park Authority.

41 It is agreed by the parties that the subject land adjoins the Solitary Islands Marine Park (“SIMP”) (as declared under s 6 of the Marine Parks Act 1997). A map of the marine park is in evidence and shows the park abutting the land the subject of the proposal. The Court Appointed Expert engaged to deal with this issue, Dr Marcus Lincoln-Smith, states that the tidal portions of Arrawarra and Yarrawarra creeks are within the SIMP’s Habitat Protection zone.

42 It is not in dispute that the Council was required to consider the objectives of the Marine Parks Act under s 79C of the EPA Act and cl 22(4) of LEP 2000. Nor is it in dispute that the Council did not consider the objectives as required. The Council officer’s report contains no reference to the Marine Park, so the inference can be drawn that the issue was not considered by Council when determining to grant consent to the development application. In Franklins Limited v Penrith City Council [1999] NSWCA 134 Stein JA expressed the following opinion regarding the application of the presumption of regularity where a clause of an environmental planning instrument prohibited development unless the consent authority formed an opinion of satisfaction about a matter:

What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an ‘essential condition’ or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration.

43 The Council claims that the failure to consider the objectives was a failure to consider relevant matters in purporting to determine the development application, and points to the words “must not” in the section to support the proposition that consideration of the objectives is a mandatory consideration. The respondent claims that this failure is not material. It is the Council’s position that the failure to take into account the objectives of the Marine Park is significant.

44 The mandatory effect of cl 22(4)(a) is that in terms it prohibits a determination to grant consent unless the objectives of the Marine Parks Act are considered where the land adjoins SIMP. Mr Craig QC who appears for the Council drew the Court’s attention to the further observations by Stein JA in Franklins where His Honour stated at [18] that:

Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the ‘merits’ under s 90 of the Environmental Planning and Assessment Act 1979, see Clifford v Wyong Shire Council (1996) 89 LGERA 240 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 and 374.

45 Dr Lincoln-Smith is a marine ecologist. In a report admitted into evidence he identifies possible indirect effects on marine habitats that could occur as a result of improperly managed tree removal. He concludes however that the proposal would have “minimal impact” on the Marine Park. He identifies a number of impacts that could potentially occur, but considers them to be of low risk provided that the development is carried out appropriately. His concerns include disturbance of soil by heavy vehicles (particularly where it is close to the boundary of SIMP); disturbance of septic systems or pipes; and changes to runoff patterns. He says these concerns are addressed by the manner in which the applicant for consent intends to carry out the development, in particular, that no heavy equipment will be used, nor will trees be removed within 20m of the boundary. Nevertheless, the Council submits that a proper consideration of this information if it had been available at the time of determining the development application could have persuaded it to impose appropriate conditions for the proper management of the tree removal so as to ensure that these effects would not occur.

46 The respondent says that the failure to consider is not material because there is no evidence that the proposal will have any impact on the Marine Park and there is no inconsistency with the objectives required to be considered. This submission is supported by the respondent’s expert, Mr Travis Peake, who expressed the opinion that the proposal will have no impact on the Marine Park and that it is not inconsistent with the objectives of that Act.

47 Clause 22(4) (b) requires the Council as consent authority to consider whether the proposal is likely to have an impact on flora and fauna within the Marine Park and its habitat for the purpose of determining whether consultation with the Solitary Island Marine Park Authority is required. The Council’s failure in this respect amounts to a failure to take into account relevant matters for the purposes of the determination under s 79C. The Council failed to ask itself the relevant question, thereby constructively failing to properly exercise the discretion to determine the development application.

48 The purpose of the provision in cl 22(4)(b) is to ensure that where the work is likely to have an adverse effect the consent authority will confer with the authority that has responsibility for management of the marine park. Accordingly the failure to take the precursory step to ascertain whether there was potential for impact from the carrying out of the work was a material omission that infected the whole process of determination. The chapeau to cl 22(4) is expressed in the context of a prohibition not to grant consent unless (a) and (b) are satisfied. The Council totally ignored the direction. Accordingly the decision to grant consent is also invalid on that account.

Conclusion

49 Each of the major grounds raised by the Council to challenge its own decision to grant consent has been made out and it is therefore appropriate that the declarations and orders in the Class 4 Application be made. Notwithstanding the evidence of Dr Lincoln-Smith that tree removal will effectively have no environmental consequences for the amenity of the marine park, in the light of the other findings leading to invalidity of the determination it is not appropriate in this case to exercise the Court’s discretion not to make orders.

50 The question of costs is reserved to enable the parties to take account of the reasons for judgment. The exhibits may be returned.