Concrite Pty Limited v South Sydney City Council 1998] NSWLEC 317 (18 December 1998
[1998] NSWLEC 55
•12/18/1998
Land and Environment Court
of New South Wales
CITATION: CONCRITE PTY LIMITED v. SOUTH SYDNEY CITY COUNCIL 1998] NSWLEC 317 (18 December 1998 [1998] NSWLEC 55 PARTIES: CONCRITE PTY LIMITED v. SOUTH SYDNEY CITY COUNCIL 1998] NSWLEC 317 (18 December 1998 FILE NUMBER(S): 10515 of 1997 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Land & Environment Court Act 1979
Environmental Planning & Assessment Act 1979CASES CITED: Collector of Customs v Agfa-Gevaert Ltd (1996) ;
Citywide Readymixed Concrete Pty Limited v South Sydney City Council & Ors (10812 of 1989, 31 May 1990);
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 ("Allen") ;
in Fawcett Properties Ltd v Bucking County Council (5);
Shoalhaven City Council v Lovell (1996) 136 FLR 58;
Brimbella Pty Ltd. v Mosman Municipal Council;
Tesco Stores Ltd v Secretary of State for the Environment & Ors [1995] 2 All ER 636;
Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966;
Hamill v Byron Shire Council & Anor (40249 of 1997, 31 March 1998 - see pp27 and 34;
Coles v Woollahra Municipal Council (1986) 59 LGRA 133 ("Coles");
Balgownie Pty Limited v Shoalhaven City Council (1990) 46 LGRA 198 ;
Park v Warringah Shire Council (1990) 20 LGRA 312 ;
Gordon Boyd & Co v Warringah Shire Council (1971) 23 LGRA 46 ;
Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260;
Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224;
Heritage Real Estate Pty Limited v Shoalhaven City Council (20496 of 1989, 6 December 1990;
Tabag v Minister for Immigration (1982) 70 FLR 61 ;
In Azzopardi v Tasman UEB Industries Limited [1985]4 NSWLR 139 ;
Hope v Bathurst City Council (High Court) (1980) 41 LGRA 262 ;
also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 ;
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 ;
Coulton v Holcombe (1986) 60 ALJR 470;
Mulligan v Drummoyne Council (10339 of 1997, 24 June 1998, Lloyd J;
Golden Paradise Corporation v Kogarah Municipal Council (10056 of 1997, 29 October 1997, Sheahan J);
Coty (England) Pty Limited v Sydney City Council (1957) 2 LGRA 117;
Parramatta City Council v Takchi (10401 of 1995, 17 April 1996, Stein J;
Nippard Pty Limited v Sydney C.C (1983) 8 APA 394;
Gyles v Sydney City Council (10417 of 1982, Assessor Domicelj, 11 January 1993;
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ ;
Bowen-James v Delegate of the Director General of the Department of Health (1992) 27 NSWLR 457 ;
Kolback Environmental Services Ltd v Auburn Council & Anor (40059 of 1997, Pearlman J, 24 December 1997;
Londish v Knox Grammar School (1997) 97 LGERA 1 ;
Mittagong Mushrooms Pty Limited v Narrambulla Action Group Inc 1998) 97 LGERA 333;
Southside Business Centre Pty Ltd v Rockdale City Council (10544 of 1997, Pearlman J, 2 September 1998DATES OF HEARING: 15 September 1998 DATE OF JUDGMENT:
12/18/1998LEGAL REPRESENTATIVES:
Mr N Hemmings QC
Mr A Hawkes
JUDGMENT:
1. The applicant ("Concrite") conducts a major ($7M) concrete batching plant at 25 Mandible Street, Alexandria, and this is an appeal, pursuant to s 56A of the Land & Environment Court Act 1979 ("LECA"), against the decision by Assessor Brown on an appeal Concrite brought in Class 1 of the Court's jurisdiction against the conditions imposed by Council on a consent granted to its Development Application 0456/96 ("DA").
2. Assessor Brown upheld Concrite's appeal, and amended the challenged conditions, but imposed a limitation period on the operation of two of those conditions. Concrite contends that the Assessor acted ultra vires in imposing the limitation period.
3. To succeed in this appeal, Concrite must establish that Assessor Brown made an error of law in fulfilling his duties under the Environmental Planning & Assessment Act 1979 ("EPAA") s 90 which, inter alia, relevantly provides as follows:
" Matters for consideration
(1) In determining a development application, a consent authority shall take into consideration such of the following matters as are of relevance to the development the subject of that development application:
(a) the provisions of:
(i) any environmental planning instrument,
(ii) any draft environmental planning instrument that is or has been placed on exhibition pursuant to section 47(b) or 66(1)(b)...
(b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm,
...
(q) the circumstances of the case,
(r) the public interest, ..."
4. Distinguishing between what are truly questions of fact and what are truly questions of law is often a difficult task, which is usefully discussed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395.
The documents considered by the Court
5. The Court has been greatly assisted in the determination of this appeal by the written submissions lodged by the parties, and by the bundle of documents tendered by the applicant ( Exhibit A ), which included:
1. decision of Assessor Brown, handed down 26 June 1998 .
2. South Sydney Local Environmental Plan 1998 ("LEP 1998 dated 24 April 1998 .
3. South Sydney Local Environmental Plan 114 ("LEP 114"), dated 19 August 1994.
4. The Landuse Table, from Chapter 10 of the DRAFT Green Square Structural Masterplan, dated August 1997.
5. The statement of evidence of Lila M Contziu, Council's Project Planner for Green Square, dated May 1998 6. Documents 2, 3, 4 and 5 had been exhibits before Assessor Brown, but, in respect of document 4, it should be noted that the whole of the draft Masterplan was not in evidence before the Assessor, nor before me.
7. Council also tendered, as Exhibit 1 before me, the statement of evidence by Ingham Planning dated May 1998 , which the applicant company had tendered as Exhibit A before Assessor Brown.
8. LEP 1998 was in draft form when the DA was made pursuant to the provisions of LEP 114. It was taken into account when Council decided to issue its conditional development consent on 4 September 1996. The subject site and its environs have been zoned industrial, probably since planning commenced in 1952. The site is certainly within a long established general industrial zone in accordance with LEP 114. It is again zoned industrial in LEP 1998 . The site is, in Mr Ingham's words, "in a large industrial area".
9. LEP 114 continues to be the primary statutory instrument relating to the DA. The zoning controls for Zone No.10 - the Mixed Uses Zone - are relevant to land to the east of the subject site, previously zoned 4 under LEP 114. Land immediately to the north of McEvoy Street in the vicinity was also within the mixed uses zone.
10. The mixed uses zone envisages "a mixture of compatible land uses in appropriate circumstances, such as residential, retail, commercial, light industrial and industrial development", and, inter alia, has as an objective "to ensure that the nuisance generated by non-residential development, such as is caused by operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area".
11. The relevant areas covered by the draft Masterplan, and/or related to it, are marked in figures within Ingham's report. The Masterplan study area is excluded 1998 , but Ingham concedes that the draft Masterplan may need to be considered as a "circumstance of the case", even though it has no statutory force, its recommendations have not yet been adopted by Council, or by DUAP, and its recommended zonings conflict with LEP 1998. Also, LEP 1998 did not follow up the idea, advanced in the Masterplan, of the rezoning of the area which includes the subject site. Mr Hemmings argues that the Assessor wrongly treated the draft Masterplan as having the status of a draft LEP.
Background
12. In 1990 Stein J granted development consent for the concrete batching plant to be developed at this site in two stages, both of which have now been completed. His Honour upheld an appeal against a deemed refusal of the application. See Citywide Readymixed Concrete Pty Limited v South Sydney City Council & Ors (10812 of 1989, 31 May 1990).
13. As it involved designated development, some of the 177 objectors, mainly neighbouring businesses, conducted the proceedings, while the Council submitted that the application should be approved subject to conditions . The consent allowed for the production of up to 100,000 cubic metres of concrete per annum. The hours of operation approved by the Court were 6.30am to 5.30pm Monday-Friday , and 6.30am to 12 noon Saturday .
14. DA456/96 was submitted to Council on 4 June 1996 , and sought:
* approval of proposed alterations to the plant,
* permission for it to operate 24 hours 7 days per week, and,
* some changes to other operating conditions.
15. Council granted its consent on 4 September 1996, prior to the gazettal of 1998 , and subject to 62 conditions which replaced those that had been imposed by the Court in its consent of 1990.
16. In the appeal before Assessor Brown, Concrite disputed those conditions which required:
* the premises to operate only sparingly between 9pm and 6.30am.
* the batching plant to operate under particularly stringent noise level conditions between 9pm and 6.30am, and
* raw material trucks and concrete mixer trucks delivering to and returning from the sites outside the Council area to use only specified streets.
17. Assessor Brown upheld the appeal , amended the three challenged conditions, and imposed an additional condition regarding dampness of raw material. Most relevantly for the purpose of this appeal against his decision , Assessor Brown stipulated that two of the amended conditions (numbered 6 and 7) would operate only for a period of three years from the date of his order (26 June 1998 ). Any extension of those conditions would require the approval of the Council, or else the respective conditions, as formulated in Council's decision of 4 September 1996, would revive.
Grounds of Appeal and submissions in support
18. In its appeal notice, the applicant/appellant contends that:
"the Assessor acted ultra vires and/or took into account factors which were ultra vires in imposing the limitation period on the operation of conditions 6 and 7 of the conditions of development consent"
and seeks deletion , from the amended conditions 6 and 7, of the words which dealt with the 3 year limitation period and what would occur in the event of each of them lapsing without an extension being granted by the Council.
19. By way of particulars, Concrite contends as follows:
"1. The Assessor was not entitled to take into account the Green Square Structural Masterplan in imposing a limitation period on the operation of conditions 6 and 7 of the conditions of development consent.
2. That the taking into account of the Green Square Structural Masterplan by the Assessor in imposing a limitation period on the operation of conditions 6 and 7 of the conditions of development consent, amounted to a material error.
3. There was no evidence submitted that the area in the vicinity of the Applicant's site would be developed in a mixed use form. The Assessor, in assuming this in imposing a limitation period on the operation of conditions 6 and 7 of the conditions of development consent, erred in law."
20. Concrite says it not only needs approval for 24 hour operation, it needs that approval indefinitely , so that it can service major infrastructure projects in the inner city area of Sydney, which need concrete delivered 24 hours per day, and often require a commitment beyond the end of three years.
21. During the argument of this appeal, Mr Hemmings complained that during the hearing the Assessor gave no warning of, and invited no evidence or submissions on the possibility of, imposing any time limitation on the granting of 24 hour operation. Indeed, he described it as a "frolic of [the Assessor's] own".
22. The power to impose conditions on consents is not without restriction. It must relate to the exercise of the discretion vested by statute. The limitations on the power to impose conditions were dealt with in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 (" Allen ") in which the following quotation appears (at 216):
"In accordance with a well-recognised rule, cl.40(1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Bucking County Council (5), as being `the implementation of planning policy ', provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained". (emphasis added by Mr Hemmings).
23. One case to which I will refer later establishes a precedent for an Assessor imposing such a time-limiting condition, without warning. In any event, Concrite chose not to argue that there had been some denial of procedural fairness in this case. Rather, Mr Hemmings concentrated his arguments on the decision -making process which led the Assessor to the imposition of that time limitation.
24. Mr Hemmings complains that, in terms of the Allen principles, Assessor Brown took into account irrelevant matters, and failed to take into account relevant matters, in deciding to impose a condition unrelated to the purpose for which he was entitled to take into account the contents of the draft Masterplan.
25. The two conditions were "time limited" because the Assessor identified, as an issue, the question of whether the area between the subject site and Botany Road and O'Riordan Street would remain industrial.
26. Concrite asserts that the Assessor misdirected himself that there was a "void of planning knowledge available for the area opposite" the subject site, in that the future of that area was "unresolved" or somewhat clouded in "uncertainty". Concrite contends:
* that the misdirection flowed from the Assessor attributing "determinative weight" to the draft Masterplan, which had no status as a planning instrument, or as a planning control, being merely a "study" commissioned by the Council, but adopted neither by it, nor by the Department of Urban Affairs & Planning ("DUAP");
* that his error of law had its genesis in his misdirection of himself to the effect that there was no evidence that the industrially zoned land opposite the site would not , in future, be developed for mixed-use purposes currently prohibited; and
* that the learned Assessor erred not only in taking into account the draft Masterplan document, and Council's evidence that it relied upon that document as if it were a draft LEP, but also in not taking into account sworn, unchallenged and uncontradicted evidence confirming the strong opposition of DUAP officers to the recommendations in the draft Masterplan.
27. The Assessor took the draft Masterplan into account pursuant to s 90(1)(q) as a "circumstance of the case". Draft LEPs which have been exhibited must be taken into consideration under s 90(1)(a)(ii), but this study was not a draft LEP, nor the type of pre-LEP study envisaged by EPAA s 57. Mr Hemmings described it as merely a "Council wish list". There was decision taken by Council to embark upon any rezoning process for the land opposite, and Concrite argues that such rezoning would contravene a Ministerial direction given pursuant to s 117.
28. Mr Hemmings' submissions rely on "s 90(1)(b)" [which should be s 90(1)(a)(ii)], which he says would have "no work to do" if studies and non-exhibited draft LEPs can be considered pursuant to s 90(1)(q). Mr Hemmings says that in the absence of a draft LEP which satisfies "s 90(1)(b)" (sic), the contents of the draft Masterplan, like a validly made development control plan, could only be relevant insofar as they conform with the provisions of a relevant environmental planning instrument.
29. Section 90(1)(q), in his submission, empowers the consent authority to exercise the discretions enumerated therein in a manner which accords better with the public interest and the circumstances of the case - it does not permit the addition of new heads of discretion.
The Structure of this Judgment
30. In order to deal adequately with these grounds and submissions it is necessary to go into some detail regarding the relevant evidence before Assessor Brown, both regarding the draft Masterplan and otherwise, and the findings in his judgment.
The evidence before Assessor Brown regarding a Masterplan for Green Square
31. The Council's evidence in respect of the preparation of the Draft Structural Masterplan (hereafter referred to simply as "the Masterplan") was largely given in the statement of evidence by Contziu (document 5 in Exhibit A, but Exhibit 5 before Assessor Brown).
32. The Green Square planning process began in March 1995 with the "Visions for Green Square : National Urban Design Competition", sponsored by Council and run in accordance with the guidelines of the Royal Australian Institute of Architects.
33. Contziu notes the exclusion, from the citywide LEP 1998 , of the relevant study area, to enable this competition, and the consequent investigation to be completed.
34. A steering committee was established "to drive the process and fast-track the presentation of a stage 1 LEP and development control plan (DCP)". The process was to be run by a body known as the South Sydney Development Corporation.
35. The competition began within 4 weeks of the approval, by the Minister for Planning, of the New Southern Railway, on 10 February 1995. The consultant was selected finally on 11 December 1996, and began its consultancy, undertaking with public forums, etc. in early January 1997. The consultant's final report was produced in August 1997, and placed on public exhibition from 20 August 1997 to 1 October 1997. 57 submissions were received, and reviewed by the consultants, and some changes were proposed.
36. The Masterplan has neither statutory force, nor status as a draft DCP, and the evidence notes that it is somewhat inconsistent with the provisions of LEP 1998 .
37. Contziu described its emphasis thus:
"The Masterplan seeks to establish a compact mixed use precinct based on ecological sustainable development objectives and good urban design, consisting of 25,000 residents and some 15,000 workers. The City South Project seeks to provide a strong employment base for the area; a suggested target population for the Green Square area is around 35,000 workers and 17,500 residents".
38. The Masterplan area is approximately 275ha, and Mandible Street forms the western boundary of the main area, comprising 214ha. Having been excluded from LEP but the Masterplan includes recommendations for their rezoning. It proposes that the relevant area be zoned M2 - Mixed Use 2, envisaging up to 25% non-residential development. Relevantly the Masterplan also proposes an extension of Macauley Street through the subject site.
39. The Masterplan says "areas within the Mixed Use 2 category are located on the peripheries of high intensity mixed use strips along the major roads, on the periphery of the station precinct and within outer areas to the east and south". The station referred to is the proposed Green Square railway station on the New Southern Railway, linking Central Railway Station with Mascot Kingsford Smith Airport, and it is proposed to be located due east of the subject site, very much west of the centre of the Masterplan's study area.
40. Ingham commented that "as the Masterplan is inconsistent with Council's recently made LEP, and as there are large areas of land excluded from the LEP, the future of which is speculation, it is my opinion that the Masterplan must be given little if any weight".
41. The revised Masterplan was presented to Council in February 1998 , and on 8 April 1998 , Council adopted a recommendation which basically endorsed the key principles and elements of the Masterplan "as a framework for further work and negotiation to develop statutory plans to enable redevelopment of the Green Square area". Council also endorsed the establishment of a working party with DUAP and the South Sydney Development Corporation. Council's adoption decision did not embrace the specific controls proposed under the Masterplan, such as heights and floor space ratios, but endorsed the processes that were recommended.
42. Contziu notes that Council aims to develop "planning controls and guidelines for the urban renewal of the area centred around the Green Square Railway Station and known as Green Square", and "... an intensive workshop process is being run to discuss and resolve the many issues associated with the redevelopment of Green Square".
43. Contziu was not required for cross-examination, and, at the date of her evidence being presented before Assessor Brown, general consensus had been achieved concerning the boundaries of the stage 1 LEP. Those boundaries come quite close to the subject site, although not quite directly across the road. A date for the stage 1 LEP/DCP exhibition had not been established, but she envisaged it would happen during August 1998 . Her report indicates a degree of urgency, and some pressure to advance this process, and includes the following remarks:
* "It has been generally agreed that development of the area should be designed in a fresh and unique manner capitalising on the unique identity of the city south region".
* "Higher building forms are envisaged in the central core area surrounding the Green Square station. The `core' is to be an active centre with a diverse range of uses including residential, commercial, retail and community uses. The area within the 400 metre radius around the station is seen as having an employment focus with a dominance of commercial activities".
* "The issue of managing potential conflicts between existing and future land uses has also been discussed in a general way, and is one of the specific key principles agreed upon which will need to be translated into specific controls for the area".
* "... the Green Square area is expected to significantly change over the next years into a high quality living and working environment".
* "it is expected redevelopment of key sites, together with others that will come on stream, will significantly change the area over the next years, to fulfil in the long term the overarching principle set for the area in the current planning process, ie the transformation of Green Square into a high quality urban place for both living and working. It is my view that whilst it is important to appropriately manage potential conflicts of use between existing and new uses to ensure existing uses can continue to exist, development in the area also needs to recognise the long term vision for Green Square and whether it will be contributing to this vision".
The transcript of the hearing before Assessor Brown
(i) The opening of the Council's case
44. In opening the case for Council before Assessor Brown, Mr Hawkes noted that:
* (T2) Concrite's appeal against the conditions was lodged "11 months and 30 days after the grant of the second consent".
* (T3) there was no s 102 application, just a discussion with Council after the appeal had been lodged. Council resolved to accept some of the proposed amendments to conditions and not others.
* Stein J in 1990 "basically made a restriction on night time hours and at that stage there was a condition that the plant should be operated in such a manner that the L10 at any point beyond the boundary does not exceed 65 dBA".
45. After tendering the Council's bundle of documents, Mr Hawkes said to the Assessor (T5 lines 11-20):
"I am not tendering a copy of the Green Square Masterplan for a number of reasons, partly relevance, partly size and difficulty, but what I do think may be relevant is discussed by both Miss Edney and Mr Ingham to some extent, are the land use tables from that Masterplan so I tender an extract which relates to land use. Its summarised in Mr Ingham's statement but this is the whole chapter dealing with the land use".
46. Mr Hemmings took the point that it was not a study "which would even be the genesis of a draft LEP", and Hawkes explained (T5 lines 42-55) that:
"there are areas in LEP 1998 which were zoned by that plan which are still the subject of proposed extended areas if you like under the Green Square Masterplan and which is shown as a proposed use zoning. It's very much at best a circumstance of the case, it is not in my submission and I make this clear to my friend now ... it is not a major part of the Council's case it is a circumstance of the case showing the way in which Council envisages the possible future zoning of this land going in the light of a document which has been the subject of exhibition and consultation but it is quite correct it is not an LEP it is not a DCP, it is part of a document which is what it calls itself, a draft structural Masterplan, I mean that's what the title of the document is"
47. Hemmings expressed concern that the landuse tables would be accepted as an exhibit "when there's nothing really to hold it up" and enquired if witnesses would be giving evidence as to "where it is in the process". Hawkes immediately pointed out that Contziu had given that evidence but was not required for cross-examination. "That may be more as a question of weight rather than because he disputes any factual matter now". Hawkes continued that he tendered the document simply because Ingham referred to the tables and paraphrased them a bit.
48. Hemmings then said (T6, lines 16-20): "I am not wishing to cross-examine the witness that says something about the document because my Learned Friend did inform my associate on Friday that Council's not relying upon this document as having any force of law ...".
49. When Hawkes explained it was a "circumstance of the case", Hemmings did not oppose the tender, and the relevant chapter of the Masterplan became Exhibit 9.
50. After the zoning issues were addressed by Hawkes, Hemmings tendered Ingham's statement as Exhibit A (now Exhibit 1 ).
(ii) The opening of the Applicant's case
51. Mr Hemmings described the 1996 DA as a "tidying up exercise", dealing with the completion of works that were required and the removal of conditions imposed, including those that restricted 24 hour operation to a limited number of days per month. The applicant found 24 hour operation of "critical importance" and 3 nights a month "too restrictive because the market tells us when we need to operate and the high quality concrete that's required for major projects in the city ... requires 24 hour operation and delivery of concrete at night".
(iii) The oral evidence
52. The first witnesses called were the noise experts Cooper, Bullen and Murray. Then, at T43, Mr Hemmings called Warren James Malcolm , the principal of the applicant company, who testified that the subject plant is 20%-25% of Concrite's major concrete business, being its largest plant, and the largest profit centre of its 11 plants. It has strategic importance because it is ideal to service both the CBD and all the market between the harbour and Botany Bay.
53. Malcolm said he believed that the reason Concrite was before the Court was that the Council feels an obligation to provide for the vision in the Green Square Masterplan, which affected the area surrounding the plant. He testified (at T49 lines 45-55):
"Prior to that report our understanding was that the area that we're in would remain industrial, that the division of the consultants that's complicated the problem and I think complicated the problem for the planners of the Council or that perhaps they might rezone the area our plant to a mixed use zoning and my understanding of the sole reason we're here is that the Council's planners are trying to provide for that possibility and so in trying to reach a compromise last year we did consider limitations on truck movements at night."
54. Christine Edney , a Council planner for 15 years in the South Sydney area then gave her evidence (commencing at T51). Contziu had been reporting to Edney but Edney had not herself been involved in discussions with the Department or the Development Corporation.
55. Mr Hawkes took Edney to the Masterplan and some of the key sites it identifies. He then asked her specifically about the points of issue between herself and Mr Ingham:
"what weight if any do you attach to the proposals in the Masterplan in relation to the development of the environs of this appeal site?
56. She replied (T54 lines 17-32):
I see the Masterplan is giving me a guide to the way the area is going to be in the future ... The Green Square Masterplan is showing the direction that development in the area is going to go in the medium to long term and you know a general view of what's going to be there. It's not the detail that this site will be exactly that. It is the general direction of future development in that area.".
57. In her written evidence she had indicated that the relevant area was likely to change its character by virtue of both LEP 1998 and the Masterplan, with residential uses, cafes, offices and the like moving into the area. She referred specifically to the "grey area", mostly now zoned industrial, which had been "deferred from the comprehensive LEP".
58. Hawkes asked her if she attached "any weight to possible Masterplan developments" in the context of the appeal, and her answer was "yes I do because I feel that as a planner I have to look at both the current and the future amenity of the area and the future amenity of the area is tied very strongly to what - the way that - what's going to happen in the future in the area" (see T55 lines 1-10).
59. He then asked her (T55 line 21f):
"Q. So putting it simply you might have common ground with Mr Ingham but you'd attach very limited weight to the supplementary areas?
A. Yes.
Q. Which affect the purple line being industrial, but you may have a disagreement with him as to the weight you'd attach to the grey deferred areas which you see as in the process of change involving some residential?
A. Yes that's correct."
60. Mr Hemmings asked her first if he could take from her answers that the rezoning of the Green Square area is a fait accompli. Her answer was:
"the zoning will change, when exactly it will change I don't know. But there is - I mean the station is under construction now, it's nearly finished, it's due to open the end of next year, early the year after and DUAP and the Council are well advanced in discussions about the whole of that grey area changing." (T55, lines 38-43).
61. Hemmings then asked her a further series of questions about her knowledge of the ongoing consultation and the submissions that were made in respect of the Masterplan. She agreed that she opposed 24 hour operations on the basis of the likely rezoning of the Green Square area. She could not comment as to whether DUAP and the corporation were "highly critical of the assessment that was carried out to come to the conclusions" in the Masterplan document. She agreed that the Masterplan presumed that one could reverse the proportion of residents to workers in the area.
62. He then asked her (T56 line 54f):
"Q. That's completely contrary to the section 117 directions given by the Minister, isn't it?
A. But the Masterplan area is only a portion of South Sydney's industrial area. I mean there's still quite a substantial industrial area to the south of the Green Square area."
63. She conceded she was aware that there was a ministerial direction "about not reducing industrial land, yes."
64. There is then a passage of cross-examination regarding the projected populations for the immediate environs of the station where industrial land would be "taken" for commercial or residential purposes.
65. The cross-examination returned briefly to the Masterplan (T60-61), and it was decided that Contziu's evidence covered many of the relevant issues. At that point in the cross-examination, Hemmings said "What we keep trying to emphasise it's not a proposed LEP, it hasn't reached that stage", and Hawkes replied "That again is common ground in terms of the statutory - ...". (see T61 lines 48-52).
66. The applicant then called Neil Ingham . Mr Hemmings took him fairly quickly to the Masterplan, and Ingham commented that he thought it had "virtually no relevance at the present time for the subject area". He testified that it had been "criticised fairly strongly" by DUAP "about a number of matters ... which I think have significant weight".
67. Hemmings asked him (T63 line 17f) "Can you see any planning logic in re-zoning an established industrial area such as Mandible Street to residential development?" and Mr Ingham responded:
"I can't see any relevance in trying to create a mixed use zone or to convert it from industrial to residential. I can see some merit in permitting a wider range of uses by allowing commercial uses as well as industrial and warehousing uses because that might increase the employment potential in the area and that might be of benefit. But I can see no benefit in allowing residential uses to mix amongst the industrial uses because it's a recipe for complaint and for loss of amenity or amenity problems because the moment you mix industrial uses with residential uses there must be problems relating to noise and traffic and matters of that kind. Matters which have been raised by the Department".
68. He then testified to the regional significance of the surrounding industrial area. In his view, the Department wants an increase in the number of people using the station and wants commercial operations close to the station - a predominance of commercial development within about 400m of the station.
69. Hawkes, in cross-examination, put to him that there was a potential for conflict between industrial and residential uses if a future LEP ensured that both uses can be accommodated. His answer was "I think it's nonsense personally". In elaboration he said that the Masterplan was trying to suggest the areas should be mixed - residential should integrate or be mixed amongst industrial. "I think that's totally inappropriate and I think that the Department's recognised that in what its saying and I think the ... EPA recognises that in what it suggests is appropriate for industrial areas". He believes you should try to keep separate industrial uses - "most industries create quite a bit of noise".
70. At T67 line 4f Hawkes asked:
"Q. Would you not accept that it is reasonably likely and something that should be taken into account the likely residential redevelopment of sites in the mixed use zone within 200m of the appeal site?
A. I think that's quite possible yes."
71. Mr Hemmings re-examined Mr Ingham on DUAP's comments in respect of the Masterplan, and then recalled Mr Malcolm to give evidence about his discussions with DUAP.
72. According to Malcolm (T69-70) the department had the same continuing concerns as were referred to by Ingham in respect of the report dated 15 May 1997. Council were thought by the Department to be currently working "on a draft LEP ... for the area east of Green Square with only a very small area to the west". Malcolm interpreted that to mean that there would be a boundary of industrial land between him and Green Square Station and "an appropriate industrial buffer would remain". He said (T70 lines 5-20):
"DUAP's view was that that should be the case and so the nearest residential - potential residential development in that direction would be that Alcatel site as proposed in the existing LEP ... there was a possibility they thought that the industrial area in which we are located at some future time might be re-addressed to provide a zoning which is a bit different from that which exists. It might incorporate some commercial development but not residential development".
(iv) Submissions
73. The transcript of the submissions made to the Assessor is not available.
Assessor Brown's judgment
74. In section 4 of his judgment Assessor Brown included the Masterplan as a "planning control", but went on to point out that it was "not a draft LEP or draft DCP pursuant to the provisions of the EPAA".
75. In section 8 of his judgment (commencing at p6), entitled "Findings", under the first heading "8.1 Impact on future planning for the area", the learned Assessor pointed out that Contziu's statement addressed the planning process being undertaken to provide planning controls for the Green Square area. He recounted her indication that a steering committee had been formed to administer the formal planning process, and the evidence she gave regarding draft LEP and DCP for the stage 1 area. He went on to note her conclusion that "while it is important to manage conflicts between existing uses, so that existing uses may continue, it is also important to recognise the long term planning vision for Green Square".
76. He then referred to the statement by a consultant town planner acting for the applicant, Alison Smith, noting that she gave the documentation associated with Green Square "negligible weight in her assessment", as it was not a planning instrument or draft planning instrument within the meaning of s 90 of the EPAA.
77. The Assessor then said (at p7):
"In terms of the Masterplan's suitability to be considered as a matter under s 90(1)(a) I accept that it is not imminent nor likely to be gazetted within the near future. Despite the statement of Ms Contziu that the Stage 1 plan is to be prepared by June 1998 , no draft documents were tendered by the respondent in these proceedings.
On the question of s 90(1)(q) - circumstances of the case, I am inclined to take a different approach. While the applicant relied on correspondence from the Department ... to suggest there the Masterplan details were unacceptable in a number of areas, these comments were dated September and October 1997. The evidence of Ms Contziu suggests that these concerns are being dealt with, through the Steering Committee which includes the Council and DUAP".
78. He then referred (at p 8) to the following statement in Contziu's evidence:
"General consensus has now been achieved by the parties involved in the process concerning the boundaries of Stage 1 LEP. These are shown in the plan attached in Annexure 4. The boundaries have been defined having regard to the parties' agreement on whether some residential development is to occur, whether whole blocks can be included for practicality reasons and whether it is possible to carry out the work required for producing the Stage 1 LEP within the set time frame."
79. Noting that the Stage I LEP area did not cover the subject site, but included a property approximately 150m away, and that the boundary to the Green Square area is on the opposite side of Mandible Street, the Assessor concluded (at p8):
"that the Green Square Structural Masterplan is a relevant consideration under s 90(1)(q) because there was no evidence to suggest that the area would not be developed in some form in the future and on the evidence of Ms Contziu, in a mixed use form. The fact that the form of development, in the vicinity of the subject site is not known, only increases the need for care in considering any developments which have the potential to impact on this area. The ramifications of adopting this approach, in relation to the conditions in dispute, will be discussed later in the judgment."
80. After dealing in detail, in section 8.2 (pp 8-15), with the evidence on noise, including in the context of existing and future residential properties in the area, the Assessor dealt with Mr Malcolm's evidence in the following terms (at pp 15-16):
"Mr Malcolm, in his evidence, indicated that from his discussions with DUAP, the area between the subject site and Botany Road and O'Riordan Street was to remain as industrial in the future and that the nearest site containing residential uses would be the Alcatel side. (sic)
While Mr Malcolm's evidence was not refuted, I am of the opinion that little weight can be given to his discussions with DUAP because the test of future impact on this area must be based on more solid and reliable evidence, such as properly formulated planning instruments as distinct from what a particular officer from DUAP considered appropriate. In addition, the ramifications of relying on this conversation, without the ability to cross examine the source of this information, outweighs any benefit from this evidence.
On this issue however, I am inclined to accept the evidence of Dr Bullen, but only in the context of a time limited consent.
In my view, to allow the plant to operate 24 hours, 7 days per week indefinitely would be contrary to sound planning, considering the uncertain future form of development in the area and the sound generated by the plant. It is not only a question of what is the appropriate criterion for the Mixed Use zone but also the unresolved land opposite, which falls within the Green Square area.
I propose that the consent should be initially limited to a period of 3 years and following this time the opportunity should be given to the Council to determine the appropriateness of any extension and the term of that extension. This assessment would be based on a greater knowledge and understanding of the form and timing of development than currently exists and was available during these proceedings".
81. On p 17 Assessor Brown referred "to the uncertainty of the development on the opposite of Mandible Street. While the applicant's condition differentiates between the residential and industrial neighbours, the condition does not allow for the protection of residential properties except those defined in the condition. This is unacceptable in the void of planning knowledge available for the area opposite".
82. On page 18 he noted that a 3 year limit "is also appropriate to allow the planning of the area opposite to reach a greater stage of maturity".
83. In section 9 "Conclusion" (at p 18) the Assessor said:
"Overall, I am not satisfied that the conditions should be amended in the form sought by the applicant for the indefinite period of the consent.
The development of the Green Square area will eventually take place, although the form and timing of this development was not able to be forecast sufficiently in these proceedings. That is not to say that what is sought by the applicant may not be achievable in the future.
The 3 year period will allow the operation to achieve its aims in the short term with little or no impact on the existing or future residential properties within the area for that period. Whether this period should be extended and on what terms, is best left to the Council when the direction and timing of the Green Square area will be further known".
Should the Masterplan have been considered by the Assessor?
84. Under LECA s 39(4) the Court must have regard to the circumstances of the case and the public interest. In Shoalhaven City Council v Lovell (1996) 136 FLR 58, the Court of Appeal held that circumstances of the case and the public interest were wide enough to cover such matters as Council Codes, Commonwealth Regulations, restrictive covenants, State Government urban consolidation policies, occasional personal hardship, precedent and the opinions of local residents.
85. In the " Brimbella " litigation, in the unreported Court of Appeal decision of 19 July 1985, relied upon by Mr Hawkes, Kirby P held that the concept of "public interest" is "necessarily general and should not be confined by Court decisions ". At another stage of that litigation [ Brimbella Pty Ltd. v Mosman Municipal Council , which was decided 19 April 1985, 3 months prior to the case cited by Hawkes, but not reported until 79 LGERA 367], the Court of Appeal reviewed a decision by Assessor Fitz-Henry on 3 August 1983 in which she concluded "that it is contrary to the public interest that structures should be erected at variance to approved plan to suit the convenience of the owners ... Allowing this appeal would create an unfortunate precedent which could encourage other people to disregard the building regulations".
86. The judgments of the Court of Appeal focused on whether they could identify a mistake of law. Kirby P (at 368) said "clearly the Assessor was entitled to take the public interest into account in the performance of her statutory duties". The LECA not only permitted it, it indeed required it. Her comments involved nothing more than an expression of her perception of the public interest.
87. His Honour continued:
"This expression `public interest' is necessarily general. It should not be narrowly confined by court decisions . Clearly, however, the due administration of the scheme of the legislation, and obedience to its requirements is one such matter of public interest".
88. Priestley JA (at 371) said:
"It seems to me extremely difficult, if not impossible, to exclude considerations of the kind dealt with in the parts of the judgment criticised from an exercise of discretion by an assessor on an appeal ...".
89. In Mr Hawkes' submission, in order to succeed in this case, the applicant must establish that the Assessor, as a matter of law, was not entitled to have any regard whatsoever to the uncontested evidence of Contziu as to the Masterplan process, or the evidence of Edney which was admitted without objection. The Assessor must be held not to have been entitled to accept the evidence given on behalf of the applicant by Ingham that it was a matter of little weight. At no point in the hearing of this matter was the Assessor told he should not consider the Masterplan. It was raised by Council as an issue and addressed by Hemmings in Concrite's evidence.
90. Mr Hawkes submits that "public interest" and "circumstances of the case" are wide concepts. He asks how it can possibly be in the public interest for the Court to totally ignore, as a circumstance of the case, or as a matter in the public interest, a Masterplan which emerged from a Council process which began in 1995, and had involved detailed consultation, public exhibition, and lengthy negotiations with DUAP and the Development Corporation. He submits that it could not be argued that the Assessor should not have been able to acknowledge even its existence. The proposal covers a substantial area of the Council's city, and is intended to establish a precinct, consisting of 25,000 residents and 15,000 jobs. All this in an area which was already specifically excluded from the latest LEP. (Submissions par 22).
91. The Masterplan clearly relates to planning issues that have been developed in accordance with the objectives of the EPAA regarding public participation and co-ordinated use and development of land.
92. The weight which should be attributed to that Masterplan is a legitimate subject of debate, but, as a matter of law, the Court should not be expected to determine this application as if the Masterplan did not exist. Mr Hawkes submits that the correct approach is to consider it as a "circumstance of the case" and decide what weight, if any, to attach to it.
93. In Tesco Stores Ltd v Secretary of State for the Environment & Ors [1995] 2 All ER 636, Lord Hoffmann said (at 661):
"Finally, I should notice a subsidiary argument of Mr Vandermeer. He submitted that a material consideration must be given some weight, even if it was very little. It was therefore wrong for the Secretary of State, if he did accept that the offer was a material consideration, to say that he would give it no weight at all. I think that a distinction between very little weight and no weight at all is a piece of scholasticism which would do the law no credit. If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it".
94. This statement of principle was relevantly adopted and applied recently by Bignold J in Hamill v Byron Shire Council & Anor (40249 of 1997, 31 March 1998 - see pp27 and 34).
95. Mr Hawkes makes the point that, in line with Coles v Woollahra Municipal Council (1986) 59 LGRA 133 (" Coles "), "not only was no objection taken to the tender of the (sic) Ms Contziu's evidence or the land use tables from the Masterplan but no point of law was formally raised to the effect that the Green Square Masterplan could not as a matter of law be considered as a circumstance of the case. There are no exceptional circumstances upon which the applicant can now rely which would entitle the applicant to raise this issue now". (see par 15 p6 of submissions filed 11 September).
96. He cites Balgownie Pty Limited v Shoalhaven City Council (1990) 46 LGRA 198 (" Balgownie ") as authority for the proposition that draft planning proposals which have not even been put on public exhibition may have some relevance and it is really only a question of the weight which should be given to them. The Court has never concluded as a matter of law that such evidence cannot come before it as a "circumstance of the case".
97. In Balgownie , questions of certainty and imminence were involved. McClelland J did give some, but limited, weight to the draft scheme as representing the latest and best informed expert opinion as to what should be and what should not be permissible development on the subject land. He said (at 202):
"In its present status the draft scheme has relevance only as indicating that in the light of experience and study since the original zoning in 1964 the council had made a decision (which does not yet have and may never have the force of law) in favour of rezoning the subject land as unsuitable for the construction of dwelling houses. It would be odd indeed if the council or the Court, in the exercise of a discretion reposed in both, did not give some weight to the latest and best-informed expert opinion as to what should be and what should not be permissible development on the subject land".
98. Hawkes also refers to cases such as Park v Warringah Shire Council (1990) 20 LGRA 312 (" Park ") and Gordon Boyd & Co v Warringah Shire Council (1971) 23 LGRA 46 (" Boyd "), in both of which Else-Mitchell J came to the conclusion that "inchoate schemes and seriously entertained planning proposals may be relevant as circumstances of the case".
99. Against the thrust of these submissions, Mr Hemmings relies on the principles espoused by Sugerman J in Howard Hargrave Pty Ltd v Penrith Municipal Council (1958) 3 LGRA 260, where his Honour held that a provision which enabled the responsible authority to carry out its functions in order to carry into effect the provisions of a prescribed planning scheme referred to the prescribed scheme as it stood and not the prescribed scheme as it might thereafter be amended. Accordingly the Council in that case was held not to be empowered to take into consideration the likelihood of a proclamation being made under cl 52 of the County of Cumberland Planning Scheme Ordinance extending to the subject land and increasing to 25 acres the subdivision area defined in the Ordinance.
100. Sugerman J acknowledged that the Council and the Court could have regard to the public interest or the circumstances of the case. He said "indeed it is difficult to see how, in many cases, discretionary considerations could be properly assessed at all without reference to public interest as a criterion". The exercise of the discretion should be tested against the public interest but the public interest cannot be invoked to add new heads of discretion to those specifically enumerated in a statute or specifically conferred by any other relevant instrument or provision. Sugerman J inclined to the view that s 333 of the Local Government Act 1919 was "intended as an exhaustive enumeration of the matters for consideration ...".
101. In Ian Turner Partners (NSW) Pty Ltd v Lane Cove Municipal Council (1985) 57 LGRA 224, Cripps J said at 228-9, (in the context of a floor space ratio dispute in which it was submitted that a draft DCP or draft planning instrument that had not been exhibited may not be considered by the Council or the Court):
"I am prepared to express the view that if it was not open to the council to consider the draft planning instrument and the draft development control plan, it would not be open to the court to receive that material in evidence in a planning appeal. In my opinion, there is some substance in the submission that s 90 properly construed does not admit of consideration by reason of pars (q) and (r) a draft local environmental plan at a stage of preparation too early to qualify as a `draft planning instrument' or a development control plan in force as is referred to in s 90(1)(a). However, acceptance of that submission would not mean that the council or the court could not take into account the planning principles and circumstances associated with or involved in the preparation of the draft plans..."
102. Cripps J returned to the issue in Heritage Real Estate Pty Limited v Shoalhaven City Council (20496 of 1989, 6 December 1990). In that appeal against an Assessor's decision His Honour noted that the Assessor had regard to a planning study then on exhibition which proposed that the subject land should remain zoned rural. It was submitted that the Assessor was in error in that he simply adopted the policy of the Council and did not deal with the application on its merits. Cripps J found that he had not adopted without proper consideration the Council's policy. He heard evidence from the Council and the company and reached his own conclusion, saying:
"it must be doubted whether a council can take into account, as a disentitling factor, the circumstances that if the development goes ahead people may, in the future, make representations or applications to the Council for rezoning".
103. It is necessary, in reaching a conclusion on this aspect of the matter at hand, that I interpose here a commentary on the issue of weight .
Questions of weight
104. In Tabag v Minister for Immigration (1982) 70 FLR 61 (" Tabag ") the full Federal Court held that the weight given to a relevant consideration is a matter for the Tribunal of fact and not a question of law for the Court. If insufficient weight is given to an important relevant consideration, that is not a question of law. Jenkinson J said if a mis-attribution of relative weight is given to a relevant consideration, it is only an error of law if it infects the decision to an extent that it is one to which on the facts as found no reasonable mind could have come, ie if it leads to a result which is wrong or unjust. Even a want of logic does not equate with an error of law.
105. Edward v Bairstow [1956] AC 14 held that Courts must intervene where the facts are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination. In Azzopardi v Tasman UEB Industries Limited [1985]4 NSWLR 139 reference is made to Edwards v Bairstow as authority for the proposition that "even where the application of the set of rules to a particular set of circumstances will involve questions of fact and degree, if it can be shown that the decision -maker has misunderstood or misapplied the law in some relevant particular, the decision can be upset as being erroneous in point of law" (per Kirby P at 150).
106. The High Court held in Hope v Bathurst City Council (High Court) (1980) 41 LGRA 262 that "where different conclusions are reasonably possible as to whether an established state of facts falls within a statutory expression the question is one of facts but where they necessarily fall either within it or outside it so that no other conclusion is reasonably open the question is one of law. The test is whether no reasonable mind could have reached that decision and the consent authority will make an error of law if the decision is not reasonably open to it". See also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J, and Coles .
107. Tabag was approved by Clarke JA in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 (" Manousaki ") in which His Honour said (at 335) that the Assessor had the authority to determine which of the factors mentioned in 90(1) were relevant to the appeal being heard, and was also entitled to accord, to those which he found relevant , such weight as he concluded was appropriate.
108. In Coles , the Assessor had dealt with some documents as relevant considerations because they were put to her as such by the parties. On appeal it was alleged that the Assessor took into account extraneous matters and a policy document that as a matter of law had been superseded and spent. Stein J noted that the applicant had never suggested until the appeal "that the documents were irrelevant", and refused to entertain so much of the appeal as concerned matters not raised before the Assessor. Coulton v Holcombe (1986) 60 ALJR 470.
109. In Mulligan v Drummoyne Council (10339 of 1997, 24 June 1998 , Lloyd J) there was an appeal against a decision of the Assessor to allow an appeal against the refusal of a brothel at Five Dock. A brothel was permissible with consent, but there was a draft amendment on exhibition which he was obliged to consider under 90(1)(a)(ii). The amendment would prohibit the development. The Assessor found the evidence confusing and it was not clear that the amendment was with the Minister for signature and gazettal. He concluded that it was therefore not "certain and imminent" and he gave it little weight.
110. It was submitted that the Assessor erroneously adopted a test of certainty and imminence as the sole test of the relevance of a draft LEP. It was asserted that the Assessor erroneously failed to take the draft into account and was therefore led into the error of attributing to it little weight. Lloyd J inferred that if the Assessor had decided on the evidence that the making of the draft plan was certain and imminent, he would have given it more weight. Lloyd J surveyed the authorities on mis-attribution of weight, and referred to Golden Paradise Corporation v Kogarah Municipal Council (10056 of 1997, 29 October 1997, Sheahan J).
111. In Golden Paradise I had noted that development for the proposed use as a brothel was permissible with the zone until just prior to the Assessor's decision . Brothels were then prohibited by an LEP in all residential areas and permitted only in light industrial zones and some major commercial centres. At the time of the Assessor's hearing, that LEP was still only in draft form and the Council was unable to lead any evidence at all as to whether and/or when the draft plan would be actually made. It was submitted to the Minister in August 1996 and made 6 days after the Assessor gave his decision on 21 May 1997.
112. In that case there was also a draft DCP to regulate brothels within the Council's area. The DCP had not been made but Council had adopted its contents as policy. The Senior Assessor had announced at the hearing that he would determine the matter in terms of s 90, rather than on the anticipated clauses of an instrument, which had not yet been made and would ban something previously permissible. The Senior Assessor acknowledged the draft LEP and associated DCP in his judgment. He noted that there was no evidence as to its imminence or certainty.
113. The Assessor granted consent on conditions and, on appeal, the Council alleged that the Senior Assessor made an error of law in failing to take into account the draft LEP. I examined the principles espoused in Coty (England) Pty Limited v Sydney City Council (1957) 2 LGRA 117, and I found myself satisfied that the Senior Assessor clearly understood not only that the Council wanted to make the draft LEP and also understood what effect it would actually have if the Minister made it.
114. In Golden Paradise , I relied particularly on Parramatta City Council v Takchi (10401 of 1995, 17 April 1996, Stein J), in which the draft LEP had not been exhibited as at the date of the Assessor's hearing, and Stein J held that, even though consideration of the draft LEP was, as a result, not required by 90(1)(a)(ii), the Assessor "should and did consider it" as a "circumstance of the case" under 90(1)(q). Stein J concluded from an analysis of the proceedings and the judgment, which did not expressly refer to the draft LEP, that the draft LEP had been appropriately considered and dealt with.
115. The Senior Assessor in Takchi came to the conclusion on the evidence that there would be little significant visual impact on the locality and that the project would not have adverse consequences on the heritage quality of its surroundings, or,, particularly, the subject heritage property. The imminence or certainty of the LEP was an issue for the Assessor. There was evidence from the heritage officials that they did not think the zoning was appropriate. The Council urged the Assessor to place determinative weight on the draft LEP. After the judgment was reserved, the plan was exhibited, and it was gazetted before the appeal was heard by Stein J.
116. Stein J found no error of law, or at least not one which would vitiate the decision . His Honour concluded that the Assessor was required to take the draft plan into consideration as a circumstance of the case, but that it could not be determinative of the case as it had not been exhibited. It was neither relevantly certain nor imminent. Certainty can flow from exhibition.
117. I reached a similar conclusion in Golden Paradise . The Assessor's judgment in that case ran for only 4 pages, but extensively mentioned the draft LEP, and I was persuaded that he had given that element of the matter, appropriately, a great deal of consideration, and that the complaint of the Council was really levelled against the sufficiency of weight he gave it.
118. In this hearing before me, Mr Hemmings sought to distinguish Takchi on its facts, because it involved a serious issue as to whether the modest residential flat building proposed was unacceptably causing an impact upon a "important item of environmental heritage ... on the opposite side of the street".
119. However, the consistent attitude of this Court, when dealing with documents such as the one involved in this case, has not been to adopt a firm principle that the Court cannot lawfully consider them as a circumstance of the case, but rather to consider that the proper question is how much weight should be attributed to them, on the particular facts of each case.
120. In Reid and Nippard Pty Limited v Sydney C.C (1983) 8 APA 394, the Court specifically rejected the argument of the applicant that a draft LEP be given no consideration under Section 90(1)(q), although in practice the Court gave little weight to the draft.
121. In Boyd , Else-Mitchell J said: "I am disposed to think that the mere prospect of land being zoned at some future time for another purpose or in some basically different manner than that provided by an existing prescribed scheme should not in the absence of evidence of the probability and nature of a planning change be given much weight".
122. In Gyles v Sydney City Council (10417 of 1982, Assessor Domicelj, 11 January 1993), one of the issues to be considered was the weight the Court should give to the 1980 City of Sydney plan which was described as "a constructive planning framework to supplement the statutory scheme. No draft LEP had been exhibited, and the only substantial argument against the proposal was that it would infringe those adopted policies which had not yet found their way into statutory force. The Assessor gave a consent for a period of 3 years only so that the use could be reconsidered in the light of the planning controls then in operation. Assessor Domicelj was satisfied that the draft plan and policies which had led up to it were worthy of "considerable weight as circumstances of the case". They would prohibit the development sought in the case even though it was at the time permissible with consent.
123. In no case that I can find have the Courts made a firm rule, or adopted a firm practice, such as that for which Mr Hemmings argues here. I have come to the conclusion that the Council's submissions on these aspects of the matter are generally to be preferred.
Applying the principles of Judicial Review to this case
124. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , Mason CJ (with whom Brennan J agreed) said (at 355-56):
"The question whether there is any evidence of a particular fact is a question of law ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions ... So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law ...
... There is no error of law simply in making a wrong finding of fact ... Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law. Thus, at Common Law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
125. The NSW Court of Appeal reviewed these principles in Bowen-James v Delegate of the Director General of the Department of Health (1992) 27 NSWLR 457 and expressly referred in favourable terms also to Azzopardi and Manousaki . (See Sheller JA at 474-5).
126. The application of these principles in this Court in more recent times was discussed by the Chief Judge in Kolback Environmental Services Ltd v Auburn Council & Anor (40059 of 1997, Pearlman J, 24 December 1997), and by the Court of Appeal in Londish v Knox Grammar School (1997) 97 LGERA 1 and Mittagong Mushrooms Pty Limited v Narrambulla Action Group Inc 1998 ) 97 LGERA 333.
127. Laying behind the principal grounds of appeal in this case, namely the Assessor's consideration of the Masterplan and the weight he attributed to it, was the somewhat gratuitous inference, in some of Mr Hemmings' comments, that the Assessor should have given him notice he would consider putting a time limitation on any "relaxation" of conditions. I should say something about that inference before concluding my remarks on the principal grounds of appeal.
128. Section 39(2) of LECA clearly vests in the Court all the functions and discretions of the consent authority, and the Court is not bound by any limited articulation by the parties of the issues and options. The parties are bound, in turn, by the way in which they conduct their cases. It is clear that the Assessor in this case understood, from the evidence, both the attitude of the Council, and the importance to Concrite of a long-term approval to operate for 24 hours per day. In his discretion, however, Assessor Brown was not disposed to agree to Concrite's proposal on an indefinite basis, and I can find no error in his doing so. He denied the parties and their experienced representatives no opportunity to be heard on such an issue or possibility. See Southside Business Centre Pty Ltd v Rockdale City Council (10544 of 1997, Pearlman J, 2 September 1998 ) at pars 29ff.
129. Turning therefore to the question of the Assessor's consideration of the Masterplan, I note again Mr Hawkes' submission, that it would be wrong to take the view that, as a matter of law, the Assessor should not have considered the Masterplan at all. As a matter of law it may well be considered, without error, a "circumstance of the case", and it is then a question of the weight to attach to it. As indicated already, I agree with that submission.
130. Of all the authorities referred to above, the factual situation in Takchi is really the closest to that involved in this case, and I reject Mr Hemmings' submission that Takchi has no relevance to this appeal.
131. Here the consent itself is not time-limited so as to lapse in 3 years. Indeed, the thrust of the Assessor's decision is that the conditions imposed by the Council, which did not go as far as the applicant wished, will apply, once the stipulated 3 years expires, to restrict 24 hour operation, and noise levels, to a limited number of days per month.
132. The Assessor's judgment makes very clear that he knew exactly the status of the Masterplan - even more so than was the case in Takchi . He acknowledged, in terms, that it was neither a draft LEP nor a DCP. The conclusions I have reached regarding the authorities lead me to the conclusion that in this case it was appropriate for Assessor Brown to accept evidence in respect of the contents of the Masterplan, and the various views taken about it, as a "circumstance of the case".
133. It is also arguable that it is "in the public interest" for the consent authority to take into account that which the public has already considered in respect of possible future changes in the direction of planning in the relevant area.
134. The question really is, then, the appropriate amount of weight to attach to the contents of the document (as distinct from its existence, it not being a planning instrument strictly so called), and the appropriate amount of weight to attach to the evidence available to the Assessor regarding what had flowed from the Masterplan exercise.
135. Mr Hemmings complains that the Masterplan was given "determinative" weight by the Assessor. However, it can be said to be determinative only of the fact that the Assessor, in granting the applicant its wishes in respect of the conditions, would do so for only a limited period, so that the issues could be reviewed, in time, as the planning regime evolved. The Assessor obviously formed a view that at the expiry of 3 years, the planning timetable to which Contziu's evidence referred would be much further advanced, and the relevant determining authorities would be better able to consider the question of 24 hour operation, in the context of the planning regime as it then applied.
136. That was an appropriate issue within the discretion of the Assessor in considering the appeal before him. Such a decision is clearly a question of fact, and shows no error of law.
137. As noted above, Mr Hemmings also submitted that the Assessor failed to take into account the evidence which confirmed the strong opposition of DUAP officers to the Masterplan's recommendations. I do not accept that submission.
138. The Assessor had "conflicting" evidence before him from the witnesses Malcolm and Contziu on this question of DUAP's attitude to the Masterplan. There was clear evidence that Council was somewhat disposed towards the option of a major rezoning of the area in the medium term, given the advent of the railway service. While DUAP had expressed concerns, the consultative processes in which it was involved had moved beyond the position of which Mr Malcolm testified. Consultations with DUAP are crucial to rezonings, whether or not any s 117 direction are involved.
139. The Assessor, as is his task, acknowledged and weighed the respective cases, and chose the evidence which he preferred. That also is a question of fact and not of law.
Conclusion
140. In summary, I can find no error of law in the way in which the Assessor conducted the appeal in this matter, or in the reasons he gave for his decision .
141. This appeal, therefore, should be dismissed with costs.
142. The exhibits may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 40 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.
Associate:
0
12
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