Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council - [2011] NSWLEC 52

Land and Environment Court

New South Wales

Medium Neutral Citation: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52
Hearing dates: 24, 25 and 30 March 2011
Decision date: 20 April 2011
Before: Sheahan J
Decision:
1. 1.The class 4 further amended summons is dismissed.
2. 2.Costs reserved.
3. Exhibits returned.

Catchwords: DEVELOPMENT CONTROL PLAN: challenge to validity; indication that land will be required for public purposes such as a laneway; whether such indication is beyond power; whether such indication effectively requires dedication of the land
Legislation Cited: Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Local Government Act 1993
Roads Act 1993
Environmental Planning and Assessment Regulation 2000
Sutherland Shire Development Control Plan 2006
Sutherland Shire Local Environmental Plan 2006
Cases Cited: Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
Carson v Department of Environment & Planning (1985) 3 NSWLR 99
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459
Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1082
Dent v Hastings Council [1999] NSWLEC 9
Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275
Lloyd v Robinson (1962) 107 CLR 142
Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Wallis (1949) 78 CLR 529
R&R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; 237 CLR 603
Restifa Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1267
7-Eleven Stores Pty Ld v City of Sydney Council [2004] NSWLEC 154;138 LGERA 125
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; 136 LGERA 254
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30
Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589
Category: Principal judgment
Parties: Conquest Constructions (NSW) Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation: Mr P W Larkin with Mr C Burgess (Barristers) (Applicant)
Mr T Robertson SC (Barrister) (Respondent)
Shaw Reynolds Bowen & Gerathy (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 40151 of 2011

Judgment

INTRODUCTION

The applicant company has challenged the validity of a development control plan made and applied by the respondent Council.

These class 4 proceedings and their companion class 1 proceedings (Matter 11/10152) were commenced on 24 February 2011. On 4 March the Registrar granted expedition of both matters. The class 1 proceedings have been fixed for hearing on 27-29 April, and these class 4 proceedings were fixed for hearing on 24 March 2011, approximately five weeks prior to the class 1 hearing.

Both proceedings concern:

(a) the development consent ('DC' - at tab 1 to Curtis affidavit) which Council granted, under delegated authority, to the applicant company's development application ('DA' No. DA 10/0640) on 18 October 2010, and

(b) Council's (deemed) refusal to modify it, as requested in a s 96(2) modification application dated 23 December 2010 (at tab 2 to Curtis affidavit).

The class 4 proceedings need to be determined first because the applicant seeks a declaration that relevant provisions (" the impugned provisions ") of Sutherland Shire Development Control Plan 2006 ('the DCP'), upon which the DC relies to require a new public vehicular lane " to be created " as part of the approved development, are null and void and/or of no effect. Failing such a finding, the applicant contends that the provisions should not, as a matter of merit, be adhered to or enforced.

BACKGROUND

The principal planning control relevant to both proceedings is Sutherland Shire Local Environmental Plan 2006 ('the LEP'). Both the LEP and DCP are in evidence (the LEP as Exhibit A2 , tab 15, and the DCP as Exhibit A1 , tabs 1 to 5 and Exhibit A2 , tabs 6 to 14). This planning regime has previously been considered, in separate class 1 proceedings, by two Commissioners of the Court - Bly C in Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council ( 'Citadel' ) [2009] NSWLEC 1082 (17 March 2009), and Tuor C and Taylor CC in Restifa Pty Ltd v Sutherland Shire Council (' Restifa ') [2009] NSWLEC 1267 (7 August 2009). The validity of the DCP was not challenged in either instance.

The DC approves on detailed conditions a mixed commercial/residential development, with associated demolition and strata subdivision, at 716 to 724 Princes Highway, Sutherland, on the corner of Merton Street. It has been the site of a hardware store, and the adjacent site (No.710) is a St Vincent de Paul store. The proposed public laneway at the heart of the dispute about the conditions would eventually run between Merton and Belmont Streets, a distance said to be approximately 130 metres, parallel to the alignment of the " old " Princes Highway, and " behind " the sites numbered 686 to 724.

The subject site is zoned 8 - Urban Centre . It lies at the northern entry to the " Sutherland Centre ", which is the principal administrative, commercial and retail centre of the Shire. Its redevelopment and revitalisation is a fundamental element of the strategy in the LEP. That strategy encourages mixed use, higher density, generous FSR, transport corridors including pedestrian paths, and high quality designs, including improved public domain. The building height controls for the subject site allow it to have 8 storeys (cl 33). The Council has for the site a " preferred amalgamation pattern ", facilitating construction in a U-shaped building envelope, and establishment of the dedicated public laneway at the rear.

Under the DCP the subject site forms part of " amalgamated site area 8a " (see map 12g, aka 9.7, in tab 5 of Exhibit A1 ). Amalgamated sites attract additional FSR (3.5:1 under cl 35, cf 3:1). The applicant in this case failed to achieve the preferred site amalgamation pattern, as the adjoining landholder in area 8a (The St Vincent de Paul Society) was not willing to sell, or undertake redevelopment.

The laneway running from Merton Street to Belmont Street will facilitate development of the St Vincent de Paul site and the remaining parcels of land not included in the current amalgamation pattern. It was a key matter in the pre DA negotiations between the parties, was specifically included in the DA submitted by the applicant, and was clearly a key consideration for the Council in approving that DA. The conclusion to the Council's favourable development assessment report dated 18 October 2010 (included in Exhibit S2 - see p12 of report) says that:

" The inability to achieve the amalgamation pattern has not been fatal in this case due to the provision of the rear laneway to achieve vehicular access and the design of the building which will accommodate development of St Vincent de Paul's site to the east without any unreasonable constraints".

The modification application seeks (a) the deletion of conditions 33, 56, 57 and 71 attached to the consent, (b) the amendment of condition no.1 to substitute different drawings which do not show the lane as public land, and (c) the amendment of conditions nos. 16 and 28 concerning physical works associated with the laneway (see T24.3.11, p5, LL37-43). The applicant's solicitors supported the modification application with a detailed letter, dated 22 December 2010, advancing legal arguments against the imposition of the challenged conditions.

The conditions the applicant/appellant seeks to have deleted concern the requirement of the public laneway as part of the approved project. Condition 33 deals with its design; condition 56 requires all work on public land to be completed in accordance with Council's approvals under the Local Government Act 1993 (' LG Act' ) or Roads Act 1993; condition 57 deals with a final site inspection relating to the public area to ensure that all impacts within the public area have been satisfactorily addressed; and condition 71 provides for the actual dedication of the laneway in the following terms:

"Dedication of Laneway

Prior to the issue of any Occupation Certificate or Subdivision Certificate the '9 metre wide dedication to Council' detailed on approved drawing No 2 Issue B adjacent to the southern boundary of the properties shall be dedicated to Council as a Road Reserve."

The Council contends that even without condition 71 the DC would oblige the applicant to construct and dedicate the public lane, as the DA specifically proposed it, and showed it on submitted plans.

THE CONTEST

Put shortly, the applicant wants to use the laneway land as a driveway and not construct and dedicate it as a public road. If Council wants a public laneway the applicant says Council should pay for the land, and acquire it by appropriate means, such as the regime under the Land Acquisition (Just Terms Compensation) Act 1991 ('the JTC Act' ).

I will return to the DCP in detail shortly, but the impugned provisions of it, as specified in the further amended cl 4 summons, are as follows:

"(a) the following text at Chapter 2 section 2.c of the DCP:

' Project 13: Public vehicular lane Belmont Street to Merton Street

A new public vehicular lane is to be created from land allocated as part of the development of amalgamated sites 8a and 8b. The new land (sic - 'lane') is proposed to replace an existing small lane of[f] Belmont Street. By extending the lane improved access to the development sites is made possible.

This will provide a safe and convenient access for new development on these sites as an alternative to the Old Princes Highway'.

(b) the item 13 (including the text 'Public Lane Belmont Street to Merton Street') in the key to Map 6 (also labelled Map 16 below the key)(entitled 'Projects Improvements Plan');

(c) the line on the said Map 6 coloured orange/brown, connecting Belmont Street to Merton Street and the number '13' under it;

(d) (Deleted)

(e) the areas coloured grey on Maps 35 (also labelled Map 9 below the key), 12 (also labelled Map 9 below the key), 12g (also labelled Map 9.7 below the key) and 12h (also labelled Map 9.8 below the key), in so far as they connect Belmont Street to Merton Street, and the words 'Public Lane' wherever occurring within those areas; and

(f) the purple/mauve line on Map 16 (also labelled Map 5 below the key) shown connecting Belmont Street to Merton Street, indicating a ' New or Improved Pedestrian Route' at that location."

If the impugned provisions are struck down, the applicant submits that they are severable from the rest of the DCP, which would survive the challenge. The Council argues that they are central to the DCP, which would fall in its entirety if the challenge succeeds. Council contends that the DCP was made wholly within the framework of the Act and that the lane forms part of an overall strategy and cannot be seen in isolation (see documents in Exhibit S1 ). The applicant cannot " cherrypick " elements of the DCP to impugn; the DCP must be read as a whole. Council also complains that the rights of other landholders not involved in the proceedings would be affected by a decision in the applicant's favour on this challenge, without notice having been given to them.

THE ISSUES AS PLEADED

Although the first amended summons was not filed until it was filed in court on 24 March 2011, it was in fact served upon the Council on 7 March 2011, the same day as the original Points of Claim ('POC'), which reflected the amendment. The Points of Defence ('POD') filed 18 March 2011 responded to the draft of the amended summons, but Amended POD were filed on 24 March 2011.

By consent, the further amended summons, and amended POC ('APOC') were filed in court on 30 March 2011. The respondent filed Further Amended POD ('FAPOD') after the hearing concluded on 30 March 2011, but the court is satisfied that the further amendments are made to reflect only the detail of the changes embodied in the APOC.

Accordingly, the material paragraphs of the APOC and of the FAPOD frame the issues in the class 4 proceedings, as follows. (I will set out in the next section of this judgment the statutory provisions to which reference is made in these pleadings).

APOC 2 says that the impugned provisions and project 13 involve (or " purport to involve " - T 24.3.11, p3, L4):

(a) the creation of a " public place " within the meaning of the LG Act ; and/or

(b) the provision, extension or augmentation of public amenities and public services within the meaning of s 94 of the Environmental Planning and Assessment Act 1979 (' EPA Act ').

In response to APOC 2(a) and (b) the respondent relies upon ss 74C(1)(a), 74E(1)(a) and 79C(1)(a)(iii) of the EPA Act, and cl 16 of the Environmental Planning and Assessment Regulation 2000 ('the Regulation'). The Council says (FAPOD 2 and 3) that the impugned provisions of the DCP, and project 13, are a matter for consideration under s 79C of the Act and (in respect of (a)) " do not, of themselves, create a 'public place' within the meaning of the Local Government Act 1993 ", and further (in respect of APOC 2(b)) do not, of themselves, involve the provision, extension or augmentation of public amenities and public services within the meaning of s 94 of the EPA Act .

The next matter pleaded by the applicant (in APOC 3) is:

" Subject to s 27 of the EP&A Act, s 26(1)(c) of the EP&A Act permits an environmental planning instrument to reserve land for the purposes of a public place within the meaning of" the LG Act."

In FAPOD 4 the respondent says that those sections speak for themselves.

In APOC 4 the applicant pleads that s 94B qualifies s 94 so that the Act " permits a Council to accept the dedication of land for the reasonable dedication or contribution for the provision, extension or augmentation of public amenities and public services ", and in APOC 5 the applicant says that " a dedication of the type referred to in section 94 may only occur if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister) ".

In response to APOC 4 and 5, the respondent says (in FAPOD 5 and 6) that s 94(1), together with ss 80(1)(a) and 80A(1)(h), permit a Council, " if satisfied that development for which consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the Council's local government area, to grant development consent subject to a condition requiring the dedication of land free of cost, the payment of a monetary contribution, or both ". The respondent says that pursuant to s 94(2) such a condition of development consent may be imposed " only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned ". Otherwise the sections speak for themselves.

The respondent further says (in FAPOD 6) that s 94B provides that " a condition of development consent requiring the dedication of land free of cost, for the payment of a monetary contribution, or both ... may only be imposed if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister) ".

It is common ground (POC 6/FAPOD 7) that there is no environmental planning instrument (or any provision in the LEP) which reserves the land the subject of project 13 pursuant to s 26(1)(c) of the EPA Act , but the respondent further says that this fact is " irrelevant to the question whether the subject DCP provisions are invalid ".

In APOC 7, the applicant pleads that there is no contributions plan, nor any direction by the Minister, authorising a reasonable dedication or contribution for the provision, extension or augmentation of public amenities or public services of the nature of project 13 for the purposes of s 94B. The respondent (in FAPOD 8) admits there is no such plan or direction, but says that the DCP " does not purport to require or authorise the imposition of a condition of development consent under section 94 of the EP&A Act requiring the reasonable dedication of land free of cost or monetary contribution for the provision, extension or augmentation of public amenities and public services in the nature of project 13 ".

In APOC 8 the applicant asserts that, upon the true construction of the Act, there was no power to make the impugned provisions in the absence of (a) an environmental planning instrument which reserves the relevant land pursuant to s 26(1)(c), or (b) a contributions plan (or direction by the Minister) which authorises the provision, extension or augmentation of public amenities and public services in the nature of project 13.

In answer to APOC 8, the respondent (in FAPOD 9) relies upon ss 74C(1)(a), 74E(1)(a), 79C(1)(a)(iii) and cl 16, repeats some earlier pleadings and says that the impugned DCP provisions do not purport to reserve land as the word " reserve " is used in ss 26 and 27. It says that the DCP may contain provisions or maps which show public lanes or roads, " regardless of whether there is an environmental planning instrument which [relevantly] reserves the land " for such purposes. It further impugns the pleading, but says that if the court finds a breach of the EPA Act , the legal consequences in relation to the DCP are limited to those set out in s 74C(5).

In the context of a contributions plan or direction, the respondent pleads (FAPOD 10) that a DCP " may contain provisions or maps which show proposed public lanes or roads in the nature of the subject DCP provisions and that the power to prepare such a plan ... does not depend upon the existence of a section 94 contributions plan which allows [such] a condition ... to be imposed ". It further says that, " even if the Applicant's construction of the EP&A Act is correct, the subject DCP provisions do not require or involve the dedication of land free of cost ", and it relies again upon s74C(5).

Further and in the alternative, APOC 9, by reason of the absence of an environmental planning instrument, pleads that " the Impugned Provisions were not made to achieve the purpose of any environmental planning instrument". In response, the respondent relies (FAPOD 11) on the LEP, especially relevant sub-clauses 3(a), (c), (e), (j), (k), (n) and (o).

APOC 10 asserts that by reason of the matters pleaded, the impugned provisions are invalid and of no effect. The respondent, while denying that the applicant is entitled to the declaration it seeks, or other relief, says (in FAPOD 12) that if the impugned DCP provisions are found to be invalid, " they cannot be severed from the DCP because [they] are interrelated with other provisions of the DCP dealing with matters including public domain works and improvements, urban design, site amalgamation, traffic and pedestrian safety and flows ".

The respondent further relies (in FAPOD 14) upon discretion as a basis for the court to refuse the declaration sought by the applicant. It urges the court to " instead adjourn " the proceedings to allow (a) the making or amendment of a s 94 plan, or (b) the making of an amendment to the LEP to reserve the land for the purposes of s 26, and/or (c) the amendment of the DCP. The reasons for the exercise of discretion in favour of the respondent are stated to be:

"(i) the necessary consequence of a finding of invalidity in relation to the provisions of the DCP is that a large number of provisions of the DCP that envisage certain land as being public land could also be invalid and could therefore not be taken into account by the Respondent, or the Court on appeal, under section 79C of the EP&A Act. This would have many adverse planning impacts throughout the Respondent's Local Government Area.

(ii) the creation of a public lane from Belmont Street to Merton Street and the creation of safe and convenient access for new development as an alternative to the Old Princes Highway is an integral component of the strategic planning for the redevelopment of the Sutherland Centre. Before declaring the provisions of the DCP invalid, the Court would afford the Council the opportunity to remedy any technical or other defect in the DCP so that this component of the Sutherland Centre's redevelopment can be properly considered."

The court must deal first with the question of validity/ultra vires, before addressing (if needed) the issues of severance, relief, and discretion.

THE STATUTORY REGIME

The EPA Act and Regulation

The EPA Act includes the following relevant provisions (some emphasis added):

s 4(1):

" development means :

(a) the use of land, and

(b) the subdivision of land, and

(c) the erection of a building, and

(d) the carrying out of a work, and

(e) the demolition of a building or work, and

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

development control plan (or DCP ) means a development control plan made, or taken to have been made, under Division 6 of Part 3 and in force.

environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force.

s 5(a)

Objects

The objects of this Act are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

(iii) the protection, provision and co-ordination of communication and utility services,

(iv) the provision of land for public purposes,

(v) the provision and co-ordination of community services and facilities, and

(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii) ecologically sustainable development, and

(viii)the provision and maintenance of affordable housing, and

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment .

s 9 Power to acquire land etc

(1)The corporation may, for the purposes of this Act or pursuant to any function conferred or imposed on the Minister or the Director-General by any environmental planning instrument, acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

...

s 24 Making of environmental planning instruments

(1) Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.

(2) Environmental planning instruments may be made:

(a) by the Governor under Division 2 (called a State environmental planning policy or SEPP), or

(b) by the Minister (or delegate) under Division 4 (called a local environmental plan or LEP).

...

s 26 Contents of environmental planning instruments

(1) ... an environmental planning instrument may make provision for or with respect to any of the following:

(a) protecting, improving or utilising, to the best advantage, the environment,

(b) controlling (whether by the imposing of development standards or otherwise) development,

(c) reserving land for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose for the purposes of this section,

...

(Note that the LG Act defines 'public place' to include a 'public road', itself defined as a 'road which the public are entitled to use').

s 27 Owner-initiated acquisition of land reserved for public purposes

(1) An environmental planning instrument that reserves land for use exclusively for a purpose referred to in section 26 (1) (c) must specify an authority of the State that will be the relevant authority to acquire the land if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 .

(2) Section 21 of the Land Acquisition (Just Terms Compensation) Act 1991 applies for the purposes of determining whether an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c).

(3) An environmental planning instrument (whenever made) is not to be construed as requiring an authority of the State to acquire land, except as required by Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991.

(4) Subsection (3) applies despite:

(a) any provision of an environmental planning instrument (whenever made) to the contrary, or

(b) the service of a notice to acquire the land on an authority of the State on or after the day on which notice was given in Parliament for leave to introduce the Bill for the Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006.

s 74C Preparation of development control plans

(1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable :

(a) to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned,

...

(4) A development control plan may amend, substitute or revoke another development control plan.

(5) A provision of a development control plan (whenever made) has no effect to the extent that:

(a) it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent with a provision of any such instrument or its application prevents compliance with a provision of any such instrument.

s 74E Miscellaneous provisions relating to development control plans

(1) The regulations may make provision for or with respect to development control plans, including:

(a) the form, structure and subject-matter of development control plans, and

...

(3) An environmental planning instrument may exclude or modify the application of development control plans in respect of land to which the instrument applies (whether the plan was prepared before or after the making of the instrument).

...

s 79C Evaluation

(1) Matters for consideration-general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

...

(iii) any development control plan..."

Sections 80 and 80A(1) allow the Council to impose conditions on a development consent. Relevant provisions are s 80(1) and (2) and s 80A(1) , which provide that:

"80 Determination

(1) General

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

80A Imposition of conditions

(1) Conditions-generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

...

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)-(9) of this section or section 94, 94A, 94EF or 94F."

Division 6 deals with " development contributions ". A " contributions plan " is one prepared and approved by a Council under ss 94EA and 94EAA in accordance with the regulations. Contributions may be the subject of conditions of consent pursuant to s 94 and s 94B. The relevant sections provide as follows (again with some emphasis added):

" 94 Contribution towards provision or improvement of amenities or services

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:

(a) the dedication of land free of cost, or

(b) the payment of a monetary contribution,

or both.

(2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.

(3) If:

(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and

(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,

the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).

(4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.

(5) The consent authority may accept:

(a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or

(b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).

(6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:

(a) a benefit provided as a condition of the grant of development consent under this Act, or

(b) a benefit excluded from consideration under section 93F (6).

(7) If:

(a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and

(b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,

then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.

94B Section 94 or 94A conditions subject to contributions plan

(1) A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

...

(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.

...

94EA Contributions plans-making

(1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).

(2) If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.

(2A) A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.

(3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

(4) A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.

94EAA Contributions plans-making, amendment or repeal by Minister

(1) The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.

(2) The Minister may make, amend or repeal a contributions plan if:

(a) a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or

(b) a council consents in writing to the Minister making, amending or repealing the plan.

The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.

(3) The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.

(4) A person cannot appeal to the Court under this Act in respect of:

(a) the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, or

(b) the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,

despite section 94B (3) or any other provision of this Act."

Section 94E provides for the Minister to give directions to a consent authority as to a range of matters, and the Regulation provides:

" 16 . In what form must a development control plan be prepared ?

(cf clause 15 of EP&A Regulation 1994)

(1) A development control plan must be in the form of a written statement, and may include supporting maps, plans, diagrams, illustrations and other materials.

(2) A development control plan must describe the land to which it applies, and must identify any local environmental plan or deemed environmental planning instrument applying to that land.

...

26 In what form must a contributions plan be prepared?

(cf clause 25 of EP&A Regulation 1994)

(1) A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Director-General, copies of which are available for inspection and purchase from the offices of the Department.

(2) One or more contributions plans may be made for all or any part of the council's area and in relation to one or more public amenities or public services.

(2A) Despite subclause (2), a contributions plan may be made for land outside the council's area for the purposes of a condition referred to in section 94CA of the Act.

(3) The council must not approve a contributions plan that is inconsistent with any direction given to it under section 94E of the Act.

(4) A draft contributions plan must be publicly exhibited for a period of at least 28 days."

The JTC Act

Division 3 of Part 2 of the JTC Act is referred to in s 27 of the EPA Act. It deals with owner-initiated acquisition in cases of hardship. Its first provision is s 21 which says:

21 Definition of "land designated for acquisition for a public purpose"

(1) For the purposes of this Division, land is designated for acquisition by an authority of the State for a public purpose if:

(a) an authority of the State has, in connection with an application for development consent or building approval, given the local authority or other person dealing with the application written notice that the land has been designated by the authority of the State for future acquisition by it for a public purpose, or

(b) the land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1) (c) of the Environmental Planning and Assessment Act 1979 and the instrument (or some other environmental planning instrument) specifies that authority as the authority required to acquire the land.

(2) For the purposes of subsection (1) (a), a notice given by an authority of the State constitutes notice that the land has been designated for future acquisition by that authority only if the notice states that the authority will acquire the land at some future time or that the land is affected by a proposal of that authority that requires the acquisition of the land at some future time.

(3) For the purposes of subsection (1) (b), land is reserved by an environmental planning instrument for use exclusively for a purpose referred to in section 26 (1) (c) of the Environmental Planning and Assessment Act 1979 only if:

(a) the land is expressly set apart by that instrument for use exclusively for such a purpose, or

(b) the land is expressly set apart by that instrument for use for such a purpose and also for other purposes, but those other purposes do not constitute a reasonable use of the land.

The aims, objectives, policies and strategies of that instrument are to be taken into account in determining whether those other purposes constitute a reasonable use of the land.

(4) The Minister administering the Environmental Planning and Assessment Act 1979 is to institute any relevant proceedings under that Act to enable the designation of the public authority required to acquire land referred to in subsection (1) (b) in any case in which the relevant authority has not been designated.

(5) Pending the designation of the relevant authority, the relevant authority is (if the land is required to be acquired under this Division) to be such authority as is determined by order in writing of the Minister administering the Environmental Planning and Assessment Act 1979.

(6) A notice of a kind referred to in subsection (1) (a) is to be ignored for the purposes of this section unless it is given after the commencement of this section. However, a reference in subsection (1) (b) to a reservation extends to a reservation effected before that commencement."

Section 23(1) then provides:

"Owner who suffers hardship may require authority of the State to acquire land designated for acquisition

(1) The owner of land to whom this Division applies may require an authority of the State, by notice in writing given to that authority, to acquire that land under this Act if:

(a) the land is designated for acquisition by that authority for a public purpose, and

(b) the owner considers that he or she will suffer hardship if there is any delay in the acquisition of the land under this Act."

The Division goes on to define " hardship " (s 24), prescribe the method of acquisition (s 25), provide for compensation (s 26), and so on.

THE PLANNING REGIME

The LEP

The 16 aims of the LEP ( Exhibit A2 , tab 15) are set out in cl 3 of it (at pages 4&5 of 152), and relevantly include:

"(b) to describe the intended environmental outcomes that will result from the effective implementation of this plan,

...

(e) to establish a broad planning framework for controlling development in the Sutherland Shire;

...

(h) to protect environmentally sensitive areas;

...

(j) to encourage development that is energy efficient and supports access by public transport, walking and cycling;

...

(m) to put in place a framework of controls to address current and future housing needs;

(n)to allow for provision of community facilities and land for public purposes.

... "

The objectives of the 8-Urban Centre zone (p16 of 152) are:

"(a) to identify appropriate land for the provision of a wide range of retail, business and professional activities;

(b) to promote viable businesses through increased economic and employment activity;

(c) to provide for an integrated mix of commercial, office, retail and residential buildings;

(d) to create attractive, vibrant and safe establishments and facilities as a focus for community spirit."

Clause 26 (pp46-47) seeks to identify for the purposes of s 27 of the Act the authority of the State relevant to acquire land reserve for certain public purposes if it is required to be acquired under the owner-initiated acquisition provisions of the JTC Act . The Council is specified as the appropriate authority in the case of " road ". Clause 27 deals with development on the land referred to in cl 26 before it is acquired or used for the purpose for which it was reserved.

Building heights are regulated by cl 33 (pp52-54), and cl 33(8) deals with zone 8 and draws attention to the " Height and Density Controls Map ". Clause 33(10) deals with zone 8 and the 8-storey limit. Clause 35 (pp55-58) deals with building density and cl 48 (p65 of 152) with " Urban Design - general ". Clauses 48, 49, and 53 relevantly provide:

" 48 Urban design - general

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,

(b) the extent to which any proposed buildings are designed and will be constructed to:

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,

...

49 Urban design-residential buildings

The consent authority must not consent to development for the purpose of residential buildings unless it has considered the following matters that are of relevance to the development:

...

(c) the extent to which the quality of the streetscape concerned will be improved by the development,

(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,

(f) the extent to which the residential building concerned integrates with a well-designed landscaped setting,

...

53 Transport accessibility, traffic impacts and car parking

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a) the extent to which the proposed development maximises opportunities, through design integration, to provide:

(i) efficient links to identified transport nodes and corridors, such as railway stations, bus routes, pedestrian and cycle paths, and

(ii) facilities to cater for bicycle users,

(b) the extent to which the demand for car parking, where there is good access to public transport nodes, will be managed,

(c) the extent to which appropriate levels of car parking will be provided in connection with the development,

(d) the extent to which walking, cycling and the use of public transport have been or will be encouraged,

(e) the design of proposed car parking areas and access to them.

The LEP's dictionary (pp134-151) does not include any definition of the word " lane" , but the word " road " is defined (p 147) to include any bridge forming part of a road, and " public road " is said (p 145) to have the same meaning as in " the Act ", being the EPA Act (p 149). The zoning and height and density controls map are included in the exhibit and they clearly show the subject site as within zone 8 and as having an 8-storey control.

The DCP

Before the court (in Exhibit S1 ) are several documents relating to the making of a Sutherland Centre DCP. A work priority programme for the environmental planning unit of Council, which went to the Council on 21 June 2004 (tab 21), identified a new DCP for the Sutherland Centre as an important priority. The then current DCP was made in 1993 without an urban design focus. The assumed strong growth in demand for commercial space in the Centre had never eventuated and the plan was said to be in need of urgent review. The Council resolved to give a new DCP a high priority. A progress report (tab 20) went to Council on 25 July 2005 accompanied by a comprehensive background report (tab 22). The new draft DCP came before Council on 28 November 2005 (tab 19), with a recommendation that it be placed on public exhibition. The preparation of the s 94 contributions plan for the Sutherland Centre was foreshadowed, proposals for public domain improvements were included, and mention was made of pedestrian connections, lane widening, etc.

The results of the public exhibition were reported to the Council on 27 February 2006 (tab 18). The submissions made were generally supportive and did not warrant substantial changes to the draft prior to implementation. The Sutherland Centre DCP was to be included in a comprehensive 2006 DCP, which was accommodating the changes flowing from gazettal of the 2006 LEP. The Council held its line on public walkways, etc. A special Council meeting was held on 6 March 2006 (tab 17). The controls were endorsed, as was their incorporation into the single comprehensive DCP. Once the DCP was finalised, a contributions plan would be adopted.

The DCP was made on 29 November 2006 ( Exhibits A1 and A2 , tabs 1 to 14). Counsel for both parties took the court to much of its detail. It is a voluminous series of chapters, maps, plans and diagrams, the most relevant of which for the purposes of the present case appear in Exhibit A1 (tabs 1 to 5). However, Exhibit A2 contains (at tabs 6 to 14) chapters on specific topics, including natural resource management (chapter 4), environmental risk (chapter 5), vehicular access, traffic, parking and bicycles (chapter 7), ESD (chapter 8), specific land uses (chapter 9), advertising (chapter 10), social impact (chapter 11), administrative provisions (chapter 12), and glossary (chapter 13). ( Exhibit A1 , tab 1, indicates that chapter 6, as listed in the index to the plan, covered the topic " employment lands ", and was incorporated into chapter 2, " Locality Strategies ").

Chapter 1 of the DCP ( Exhibit A1 , tab 1) deals with some design principles and the need for systematic site analysis. Urban design principle (k) requires that the proposed development maximise opportunities to utilise public transport services, pedestrian and bicycle links. Others require on-site parking, and enhancement of public safety through design and management. Chapter 7, s 2.b.1 (pp1-16) provides that where development has two or more road frontages vehicular access shall be via the lowest order road shown on the Council's road hierarchy map ( Exhibit A2, tab 8).

Chapter 2 ( Exhibit A1 , tab 2) contains locality strategies. There are specific objectives and strategies for each of the 16 localities, including " locality 2 ", the Sutherland Centre, supported by specific development controls dealing with public and private amenity, building design and environmental management. The urban centres are a focal point for social and economic development and constitute social and recreational bases for local communities. They are increasingly providing significant residential accommodation in the form of residential flats and mixed use developments. The DCP notes that Council prepared its development controls after formulating a strategy for each of the localities, and that those controls are to be used to ensure that new development responds appropriately to the desired character of the particular locality.

The intended (re)development of Sutherland Centre is dealt with in section 2 of chapter 2, at pp1-17 to 1-24. The key focus of the Centre is to create a vibrant retail and administrative core supported by appropriate residential densities and housing types. The DCP seeks to create a framework to regulate anticipated redevelopment of the Centre. It notes that " consolidation of allotments in certain areas may be necessary to achieve development which contributes to the enhancement of the town centre's built form " (p1-17). Future development and Council expenditure will ensure that streetscapes and public areas are improved. The Sutherland Centre plays a significant role in the Shire and is recognised as a district centre. It is reinforced by the concentration of major government functions and Council administrative services. It is also a primary public transport node.

The aims of the Sutherland Centre are set out in s 2.b (pp1-18 to 1-19). One stated aim is to " minimise unnecessary through traffic within the centre ", another to " improve permeability and connectivity within the centre through an emphasis on the pedestrian environment ", and a third to " encourage the creation of pedestrian activity nodes within the main retail area to assist in enlivening the outdoor spaces of the shopping precinct, provide attractive public domain focal points and add to the general amenity of the centre ". Boulevards with trees are to be a key feature of the main centre. Many of the stated aims of the Centre are depicted on the associated Map 5 (aka 3), in tab 3.

Section 2.c (beginning at p1-19) introduces and describes 21 specific " projects " identified as forming part of the specific controls for the Sutherland Centre. These include the section on project 13, fully set out in the amended summons (par [14](a) above). The projects described in the text are indicated on the Project Improvement Plan (Map 6 (aka 16), in tab 3). That Map clearly depicts the location of the planned laneway. Footpath widening is a significant component of many of the projects (see p2-6) and public walkways are proposed (for example, projects 7, 8, 9, 11 and 12). The walkway in project 7 is said to " form part of an overall strategy to retain and improve pedestrian permeability through Sutherland Centre ".

Other localities in chapter 2 include Kirrawee, Miranda, Engadine, Caringbah, Menai, Sylvania, etc., each having identifiable " projects ". The chapter 2 locality maps (including 5 and 6), and various other diagrams, appear in Exhibit A1 at tab 3. Maps 35 (aka 9) and 36 also cover Sutherland Centre.

Urban design matters are dealt with in chapter 3 of the DCP ( Exhibit A1 , tab 4). Sections include Amalgamation and Subdivision Requirements, Setbacks, Site Coverage, Building Envelopes, Active Frontages, Streetscape and Building Form, Landscape matters, and 10 or more others. Some are addressed on a locality-specific basis.

In section 1 of chapter 3, headed " Amalgamation and Subdivision Requirements ", it is noted (at p1-10) that "s ubdivision patterns and site amalgamation can have significant implications for the streetscape of an area ", with effective amalgamation patterns promoting the efficient use of land and allowing design constraints to be more easily resolved. Such patterns help produce " a consistent urban form and built form rhythm which reflects the surrounding development pattern ", and attempt to " balance the planning requirements relating to height, massing, underground car-parking, vehicular access, streetscape and amenity to achieve an appropriate building outcome ".

Section 1 includes extensive definition of amalgamation patterns for some Sutherland Shire lands in a map series. Development proposals are required to follow the amalgamation requirements, and alternative patterns will be considered only where assessment principles have been satisfactorily addressed (see control 1.b.1 at p1-11). It is envisaged that exceptions be made only if reasonable efforts to achieve amalgamation are frustrated by the unwillingness of a current owner (e.g. St Vincent de Paul). In such cases the assessment of the application must have regard to the DCP objectives and standards (see 1.c.1.a, at p1-13, where the question specifically posed in (i) is " does exclusion of the isolated parcel(s) compromise achievement of a plan objective or standard, particularly a design requirement or feature, provision of public open space or pedestrian link?)"

Setbacks are dealt with in sections 2 and 3 of chapter 3, and site coverage in section 4. One objective of street setbacks is to create opportunities for canopy trees and landscaping (2.a.1.1.c on p1-15 and 3.a.1.1.c on p1-22).

Building envelopes are dealt with in s 5. One objective for all built development is to enhance the connectivity and permeability of centres by " improved pedestrian links through elongated commercial blocks and the development of pedestrian focused retail areas " (s 5.a.1.1.e, at p1-34), and another (5.a.1.1.g) " to encourage efficient pedestrian links between public transport, shops, carparks, open spaces, community facilities and residential development ". Dimensions for pedestrian arcades, public walkways or other public thoroughfares through a development site are dealt with in s 5.b.1.2 (p1-36). Additional controls for the development in the Sutherland Centre are stipulated in s 5.b.6.1 (at p 1-38). Landform issues are dealt with in s 6 of chapter 3.

Additional building and site layout objectives for mixed use developments are set out in s 7.a.5.1 (commencing at p1-50), and additional controls at s 7.b.5 (commencing at p1-60). Those additional controls for mixed use development include, as No.2 in s 7.b.5, provision that " where development sites have access to a rear lane, vehicular access is to be provided from these points, and must comply with the relevant Australian Standard . Where development does not have direct access from an existing laneway but the provision of such access would benefit development, then a right of way must be pursued ". (See 2b and 2c on p1-60).

Section 8 of chapter 3 (commencing at p1-69) deals with active frontages. Its introduction says that essential elements of " centres ", and the bulky goods retailing area of the Shire, are the retail and commercial activities they contain. " These elements encourage pedestrian movement and create an environment of vibrancy and vitality. Active frontages are locations where retail shopfronts address the street, building entries are positioned and pedestrians circulate, accessing shops and services ". An objective stated for all development in an urban centre, a local centre or a neighbourhood centre (in s 8.a.1.1), is to " encourage active street frontages " for these purposes.

Floorspace mix is dealt with in s 9 (commencing at p1-71), and streetscape and building form in s 11 (commencing at p1-79). Elements of development visible from the street, waterways or the public domain " must make a positive contribution to the streetscape ". Among the objectives for all built development is " to ensure that vehicle access and parking areas do not dominate the streetscape " (see s 11.a.1.a & h).

The chapter 3 maps and diagrams appear in Exhibit A1 , at tab 5. The Sutherland Centre is dealt with in maps 12a to 12k, 16, 18 and 22. Map 12g depicts sites 8a and 8b as covering respectively the areas from 710 to 724 (the subject site and St Vincent de Paul), and from 686 to 700, Princes Highway, and envisages that the subject site will have two U-shaped buildings facing a public lane. There are four areas of zone 8 land on the block. The existing lane and the proposed new lane are clearly depicted on map 16, and the active frontage on map 18. The subject site is shown in area "B" on map 22, stipulating that it have 100% commercial floorspace on the ground floor level. Building envelopes can be seen clearly on the three-dimensional diagram Ma.

THE DC APPROVAL PROCESS

Council outlined its priorities for the subject site in a series of pre-application discussions with the applicant. Council's letter to Conquest dated 14 October 2009 (in Exhibit S2 ), following pre-application discussions, made clear that carparking and a general servicing area were to be accessed via a 9m public laneway at the rear of the site.

The DA was lodged on 14 July 2010, accompanied by a Statement of Environmental Effects ('SEE' - also in Exhibit S2 ). The SEE notes that the main pedestrian access to the residential units will be directly from the Merton Street frontage, and the commercial suites will be accessed from both the Highway and Merton Street. The SEE notes (at p12) that " Council's 'Project Improvement Plan' requires that a 9.0 metre wide strip of land along the southern boundary of the site be dedicated to Council for a public lane. The proposed development conforms with Council's requirement ". The SEE further notes that the applicant intended to provide a combined entry/exit driveway from that lane to the basement carpark and a driveway/layback will be provided for the ground-level garbage loading/unloading and carwash areas. No vehicular access will take place from the old Princes Highway. The SEE (at p 47) specifically acknowledges again the requirement of the 9m dedication as a public lane, which will provide a valuable pedestrian linkage within the town centre. At p48 it is acknowledged that there will be through access for both pedestrians and vehicles when developments are complete.

The proposal considered and approved by Council specifically included the dedication to Council of such a 9m laneway at the rear of the site, which will also provide a pedestrian and vehicle link, and remove any need for vehicular access from the (old) Princes Highway, thereby improving traffic flow.

THE SWORN EVIDENCE

Council's traffic engineer Peter Anderson (affidavit 18 March 2011) deposed to specific knowledge of the land and the requirements of the DCP. He was involved in the traffic evidence presented in both Citadel and Restifa . The development proposals for the sites at 686 to 716 Princes Highway involve more intensive residential and commercial use, increasing the generation of traffic, congestion and delay with associated vehicle/pedestrian conflict. He relevantly describes the subject site as already a significant traffic generator onto the old Pacific Highway, which he opines is "heavily trafficked ". The proposed lane should reduce delay on the old highway and substantially enhance pedestrian safety.

Council's expert planning witness, Paul Grech , notes in his first affidavit (sworn 18 March 2011) the broad aims set out in cl 3 of the LEP, and the relevance of the DCP provisions which relate and apply to the subject land. Zone objectives are found in cl 11 of the LEP. The overall aims of the DCP for Sutherland Centre are contained in Chapter 2, especially section 2.b of it (pp1-18 to 1-19). They have an emphasis on the public domain and on productivity within the centre, with emphasis also on the pedestrian environment and the minimisation of unnecessary through-traffic. Section 2.c (commencing on p1-19) contains 21 " projects ", including Project 13 (at p1-23; set out at par [14](a) above).

Mr Grech opines that the detailed provisions of the DCP, including the laneway identified in project 13, implement and contribute to achieving the purposes of the LEP, in terms of uninterrupted pedestrian streetscape, continuous outdoor publicly accessible space, absence of vehicular access crossings, landscaping, better architectural presentation resulting from removing the need for car and delivery entrances, and reduction in the potential for vehicular conflict. He further opines that it is " appropriate for the design of the redevelopment of the subject DCP land, particularly at the intensive scale provided for by the LEP, to allow for rear access to service the development, where such a laneway may ultimately service the public ". This he regards as an appropriate and reasonable planning approach, consistent with the Council's objectives for the area.

In his second affidavit (sworn 29 March 2011) Mr Grech opines that if the impugned provisions are deleted from the DCP it will operate " differently ". The laneway as proposed will provide " safe and convenient access " to the redeveloped sites in the Sutherland Centre. If it does not proceed, alternative accesses would " defeat the broader objectives of the LEP and DCP, in particular the aims of providing high quality urban appearance at the entrance to the Sutherland Centre, and a high quality active and vibrant pedestrianised area ", and undermine the utility of other controls, causing vehicle/pedestrian conflict, diminishing potential landscaping quality, and damaging the potential public domain. Deletion would also reduce both the DCP's incentive for site amalgamation, and the pedestrian network the DCP seeks to achieve.

The applicant relied on planning expert Sue Francis . In her affidavit (affirmed 28 March 2011) she opines that the purpose of the lane in project 13 is location-specific, so removal of the impugned provisions of the DCP " will have no broader impact on the DCP " as a planning document, they being " minor in the context of the whole document" . She notes that while some provisions in the DCP " mirror " some in the LEP, there are no equivalents in other instances, and some LEP provisions are " comprehensive controls " of broad application.

She opines that the DCP provides " no benefits to developers which are not provided under the LEP ", and that the impugned provisions do not provide for any " quid pro quo ", whereby the provision of the lane would be the " price " paid for some benefit such as leeway in applying other controls (like height or floor space). There are other ways to provide rear access to the site and limit access off (old) Princes Highway - Council could negotiate with owners for a right-of-way on their titles; it could reserve land for a public road under its environmental planning instrument; it could resume land under the Roads Act ; or it could levy funds under s 94 to finance the purchase of land for the lane.

John Curtis is the sole director of the applicant company. He verified by his affidavit (affirmed 23 March 2011) the production of certain documents, including the DC and the modification application. He deposes that the court's exercise of its discretion to adopt the approach advocated by the respondent on the question of relief (in APOD 14) " would cause significant delays to the proceedings and as a consequence hardship for the Applicant " (par 11). Conquest's disbursements for the Sutherland site are secured by a Jobema Developments Pty Ltd, which secured an option over the site on 20 November 2009 and completed the purchase of the site on 31 January 2011. Mr Curtis sets out in some detail the economic and financial arrangements between the companies, relied upon by the applicant for the expedition of the proceedings. He says that Jobema has outlayed $3.8M already, so Conquest needs to obtain a construction certificate, and commence work on the Project by the end of April, otherwise interest penalties and staff redundancies may follow.

THE EARLIER CASES ON THIS PLANNING REGIME

As noted above (in [5]), the planning regime involved in this case has been considered by the court in two previous cases, Citadel and Restifa. Citadel also concerned project 13 (the Sutherland Centre), while Restifa concerned a project in the Kirrawee Centre, at the " brick pit " site.

As required by Zhang v Canterbury City Council (' Zhang ') [2001] NSWCA 167; (2001) 51 NSWLR 589 (per Spigelman CJ at [75]), Bly C in Citadel considered the DCP as a " fundamental element " in, or " focal point " of, the Council's (or court's) decision-making process. In dismissing the appeal, Commissioner Bly paid close regard to the requirements of the DCP. The land involved was located within amalgamation area 8a (in map 12g), it being nos. 686 to 696 Old Princes Highway and 31 Belmont Street. Failure to amalgamate the site with nos. 700 to 702 was also an issue in those proceedings, and the application did not include creation of a rear laneway as required by the impugned provisions (see Bly C's judgment at [13]).

Bly C noted as follows (in pars [25], [29] and [30]):

" 25 Many development control plans contain provisions that are generally applicable however in this instance the DCP also contains very detailed controls that are specific and unique to various sites or locations. This is the case for the Sutherland Centre. In these circumstances the DCP should, in the public interest, attract considerable weight.

...

29 The particular detailed controls including specific Projects in Chapter 2 and urban design provisions in Chapter 3 that are directly relevant to the site the subject of this application include:

The proposed new public lane and superimposed pedestrian route.

The site amalgamation requirements

The eight-storey "U" shaped building envelope.

The setback requirements

The active and semi-active frontages.

30 In my opinion the particularity of these controls insofar as they apply to this site is such as to indicate that they should attract significant and determinative weight."

The learned Commissioner continued (pars [31] to [34], and [39]):

"31 The urban design provisions in Chapter 3 deal with amalgamation and subdivision requirements that are intended to promote the efficient use of land consolidation of certain allotments that allow the development of built forms, which make a positive contribution to the spatial definition of streets as well as protecting the amenity of existing and future residents. The requirements are also intended to ensure that efficient and safe car park and vehicle entry points can be achieved whilst ensuring that there is no isolation or exclusion of land parcels.

32 The associated controls, inter alia provide for the amalgamation of land fronting the Old Pacific Highway between Belmont Street and Merton Street into two roughly equivalent parcels of land described as Sites 8a and 8b in the map series Amalgamation Requirements (see Maps12 and 12g/Map 9.7 - Building Envelopes). The DCP requires that the indicated amalgamation pattern be followed.

33 The subject site comprises the majority, but not all of amalgamation Site 8b (five lots) because it excludes 700-708 Old Princes Highway (the Jax Tyres site) hence it does not comply with the DCP. In this regard it is to be noted that whilst the Jax Tyres site is not included (nor does it include the unused lane off Belmont Street) the site does involve the consolidation of four separate lots (Lot 4 in DP 11650, lot B in DP 357178, Lot 31 in DP 535664 and Lot 6 in DP 11650).

34 However alternatives can be considered if certain assessment principles are addressed and, if an isolated site results, evidence is provided of offers made to the owner of that site for its incorporation into the development proposal. The assessment principles require that if a proposed development does not comply with the amalgamation requirement the following matters need to be considered:

Does exclusion of the isolated parcel compromise achievement of a plan, objective or standard particularly a design requirement or feature, provision of public open space for pedestrian link?

Does exclusion of the parcel compromise achievement of relevant planning strategy objective?

Can these objectives or standards be achieved by modifying the amalgamation pattern?

Is provision made, practically or in title, for vehicular access (including construction access) loading and unloading and the garbage servicing for the isolated site?

...

39 I accept that the applicant has made legitimate attempts to acquire No. 700-702 and that the proposed substantial amalgamation (four lots) does not necessarily isolate the lot because it could be amalgamated with the adjoining lands in site amalgamation 8a. However I have not been persuaded that the exclusion of this land would not compromise the achievement of the plan for this part of the Sutherland Centre as described by Map 9.7 in the DCP. More particularly I do not understand how the 18 m wide separation between the suggested built forms as shown on this map would be achieved, this being an important element of streetscape character....."

He then turned his attention to the public lane and pedestrian route:

" 40 Project 13 in Chapter 2 involves the provision of a 7 m wide public vehicular lane along the rear of the site between Belmont Street and Merton Street. This lane is to be created from land allocated as part of the development of amalgamated sites 8a and 8b (see Map 9.7 - Building Envelopes (Map12g)). The land for the lane is proposed to replace the above-mentioned unnamed lane and by extending it to the full length of sites 8a and 8b, improved safe access to these sites, as an alternative to using the Old Princes Highway is made possible. Map 9.7 also describes the lane as proposed public accessed space.

41 There is also a 2 m separation or set back between the public lane and the depicted building envelopes. The lane is also identified on Map 5 - Connectivity & the Public Domain (Map16) as a New or Improved Pedestrian Route. There is no provision in the planning controls for the acquisition of this land, which plainly is intended for public ownership.

...

46 In my opinion the failure to provide for the lane as required by the DCP is a significant flaw in the development ." (my emphasis).

The Commissioner concluded his judgment:

" 60 In my opinion there can be little doubt that, taking into account the range of land uses permissible in this zone that a commercial building of approximately this size can be anticipated on this corner of Old Princes Highway and Belmont Street. I also accept that, taking into account the retailing component of the Sutherland Centre strategy that anticipates a large-scale supermarket, conceptually a supermarket would be appropriate here. Whilst I recognize that this is a major retail/commercial development that would make a significant economic and social contribution to the Sutherland centre, this is not enough to overcome the legitimate concerns raised by the council, especially in relation to the requirements of the DCP.

61 In my opinion, the proposed development fails to sufficiently recognise the significance of the provisions of the DCP and give them appropriate weight and should, for the reasons contained in this judgment, be refused."

Restifa concerned an old brick pit site of some 4.2ha, formerly owned by Sydney Water, and used for water storage, at nos. 566 to 594 Princes Highway, Kirrawee, in the 7 - Mixed Use zone, some 1.4km from the Sutherland Centre. The applicant appealed against the deemed refusal of its proposal, which included a large (4,500m 2 ) supermarket. Third parties with competing retail interests in the Kirrawee and Sutherland Centres intervened in the proceedings, and the case turned on the effect the proposal would have on the sustainability of established retail facilities strategically integral to those centres. The Commissioners examined the various planning instruments in great detail, noting (at [127]) that the Kirrawee Centre " served local needs whereas Sutherland is identified as serving a district role ", and dismissed the appeal on the basis that the development proposal " diverged from the strategy " in the DCP, especially concerning the Sutherland Centre (see T25.3.11, p15 L36 to p16. L13).

I find the passages I have quoted from Bly C's reasoning very apt to the present case, and I respectfully adopt them. The practical effect of applying the DCP's provisions in Citadel , including the rear laneway, was refusal of the DA.

The primary issue, however, before the court in the present case is the validity of the DCP provisions upon which Bly C relied in Citadel and the Council relies in the present dual proceedings.

APPLICANT'S CASE

Mr Larkin's basic submission is that the statutory scheme provides a " specific, detailed, particular mechanism for reservations of land for use as a public place " (ie identification of lands in the LEP, and/or authorisation for the dedication in a contributions plan). Such provisions must be construed having regard to the " entire scope, subject matter and objectives of the Act ", in accordance with the currently accepted principles of statutory construction - Project Blue Sky Inc v Australian Broadcasting Authority ('Blue Sky' ) [1998] HCA 28; 194 CLR 355. In that case the Full Federal Court had found an " irreconcilable conflict " between a special and a general provision of an Act and held that the special provision " must prevail " ([68]). The High Court (per McHugh, Gummow, Kirby and Hayne JJ) went on to say, under the heading " Conflicting statutory provisions should be reconciled so far as is possible ":

"69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute . The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" . In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed .

70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume (1905) 2 CLR 405 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

So construed, Mr Larkin submits, the general power to make subordinate instruments such as DCPs " should be seen implicitly as not permitting " the achievement of such a reservation " other than by use of the particular powers ". If there were in the statutory scheme only a general power to make a DCP, provisions such as those impugned in this case might be seen as " relevant, appropriate, reasonably incidental to the exercise of that power ", but the Act contains a particular power for the identification of appropriate lands for reservation and dedication. He accepts that if the laneway land had been indicated in the LEP, for reservation under s 26(1), s 74C(1) could be relied upon to make " more detailed provision " (T24.3.11, p46, LL17-23).

His submissions rest primarily on a line of High Court authority - Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia ('Hordern') (1932) 47 CLR 1, R v Wallis ('Wallis') (1949) 78 CLR 529, and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom ('Nystrom') [2006] HCA 50; (2006) 228 CLR 566. Regrettably, it is necessary to include in this judgment some lengthy extracts from these cases.

In Nystrom , Gummow and Hayne JJ summarised Hordern in these terms (at [55]):

"Anthony Hordern concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (the Conciliation and Arbitration Act) which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only "other things being equal". The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan

Duffy CJ and Dixon J, McTiernan J, Starke and Evatt JJ dissenting)held that those general powers did not authorise the judge to make an award which "ignored the exception[s]" contained in s 40.McTiernan J concluded as follows:

"Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference.' I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40."

This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members."

The short passage from the judgment of Gavan Duffy CJ and Dixon J in Hordern (at 7), to which reference is usually made, was quoted in Nystrom at [44]:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power ." (emphasis added)

RESPONDENT'S CASE

Mr Robertson does not accept the applicant's implied restriction on the Council's statutory power in s 74C to make a DCP, to the effect that it is primarily the role of the LEP to specify the land which is to be taken and used for public domain improvements as an adjunct to approved development. He says that the applicant requires the addition/implication of appropriate restrictive words in s 74C, and notes, that in the frequent reviews and amendments of the Act, Parliament has not seen fit to add any such words, which would have the effect of discouraging strategic planning by Councils.

Mr Robertson noted during argument (T25.3.11, p9 L48 - p10 L2) that the " lengthy and rather complex " DCP involved in this case gives several indications of Council's intention to " take ", but not in the sense of " seize ", private land, and use it for public purposes, in pursuit of the principle of quid pro quo .

The respective LEP and DCP-making powers (ss 24 and 74C(1)) are materially different in character, and serve different purposes, the LEP power being the more general and the DCP power more specific. An LEP is a form of delegated legislation, capable of enforcement, but a DCP is a persuasive statement of policy or desire, rather than strictly binding. A DCP's highest " legal role " is as one matter for consideration under s 79C in the determination of a DA.

Council submitted its draft LEP to the Minister, and embarked on its preparation of the DCP, with a view to setting out in a strategic and co-ordinated way its intentions in respect of the use of all the land in various centres, not just in the Sutherland Centre. The LEP is made to set out how the Council will, in general, achieve the objectives of the EPA Act , eg maximum heights, etc, and the DCP is made to provide more detail as to how Council will seek to ensure that development achieves the Council's aims as expressed in the LEP. In so doing it may, and here does, indicate that LEP maximums are the desirable outcomes (see interrelationships in map 12g). Nothing in the DCP is inconsistent with the LEP, and it was made for the proper statutory purpose.

Sections 26 and 27 provide only one avenue - not an exhaustive scheme - by which a Council can acquire land for its (public) purposes. It can also obtain land by bequest, gift, swap arrangements, purchase, statutory vesting, or outright resumption under any of several Acts. Mr Robertson notes that most roads vest in Councils etc. as a result of the gift involved in their dedication by subdividers.

Sections 26 and 27 limit only how the LEP can deal with land resumption; they do not confine in any similar way the Council's power to make the DCP; nor do they restrict or regulate any of Council's other options for identifying and securing appropriate land for public purposes. If Council makes no decision to reserve land via s 26 and the LEP, there is no other constraint on Council from making a DCP which indicates a desire to alter the mix of public and private land as part of the strategy prescribed by the LEP (T25.3.11, p13, LL44-48).

The Council relies on the High Court's decision in Nystrom , rather than its earlier decisions in Hordern and Wallis . In Mr Robertson's submissions dated 23 March 2011 he says (at par 8):

"... To deploy the rules of construction upon which the applicant relies it is necessary that the powers be the same or at least with respect to the same subject matter or that the general power encroaches upon the subject matter exhaustively governed by the special power: [Nystrom ] at [59]. It must be possible to say:

'that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of the power which itself was not expressly subject to restrictions'. At [59]"

In relying on Hordern and Wallis , to the contrary of that principle extracted from Nystrom , the applicant submits that the specific power is subject to the general power, which is said to be exhaustive. In any event, as Mr Robertson submits (par 10), the mechanistic application of old maxims as rules of construction is no substitute for consideration of the whole text, its subject, scope, and purpose. The powers employed here are materially different, and have differing consequences (see Nystrom at [165], quoted above at [91]).

In this case the DCP informs interested potential developers that the Council wants some of their lands voluntarily provided for public purposes. It does not purport to prohibit any development that does not provide for them, but signals that it will be a consideration in the determination of DAs.

The Council's submissions rely on three particular authorities in this respect:

In the unanimous Court of Appeal decision in North Sydney Council v Ligon 302 Pty Ltd (No 2) ('Ligon' ) (1996) 93 LGERA 23, Cole JA (with whose judgment Meagher JA and Abadee J agreed) said (at 31), expressly disagreeing with Bignold J's decision in Guideline Drafting & Design v Marrickville Municipal Council ('Guideline') (1988) 64 LGRA 275 that:

"[a] provision in a Development Control Plan which says that a consent may be granted if certain conditions are not satisfied, simply specifies more detailed criteria or provisions which must be met before the development which may be permitted with consent under the North Sydney Local Environmental Plan can be granted.

... I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a North Sydney Local Environmental Plan is granted, should not be regarded as conforming with the wider North Sydney Local Environmental Plan.

...A detailed plan which contained a provision contrary to the wider plan would not be in conformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision."

In Dent v Hastings Council ('Dent') [1999] NSWLEC 9, the applicant relied on Guideline , and I expressly adopted and applied (at [31]-[34]) Cole JA's decision in Ligon. (I was answering a preliminary question of law concerning the relationship among various planning documents).

In 7-Eleven Stores Pty Ld v City of Sydney Council ('7-Eleven' ) [2004] NSWLEC 154; 138 LGERA 125, Lloyd J (at [22]ff) surveyed Guideline , Ligon , and Dent , noting also the Court of Appeal affirmed the Ligon/Dent approach in Zhang , and His Honour concurred that " this is the relevant test to be applied ", having regard " to the content and not the form of the provision " (see Ligon , at 30, and Zhang , at [30]).

The land requirement indicated by the DCP says nothing about the mechanism for acquisition or creation of the laneway. It leaves the question of cost or value to be determined by other planning provisions (Robertson submissions 23 March, par 14).

However, the planning and development system runs on a quid pro quo principle, by which the provision of the laneway is inextricably linked to the specified building envelopes, setbacks and other controls as part of the overall strategic plan for the Sutherland Centre, in which public domain considerations are central. One cannot look at the laneway in isolation. Here its inclusion in the DA was sufficient to outweigh the applicant's inability to achieve amalgamation of its site with the St Vincent de Paul site. Its establishment will set the scene for, and greatly assist, later development of that adjoining site.

Mr Robertson says (par 11) that a decision in the applicant's favour in this matter would mean that the whole DCP would need rewriting, and that " no DCP may ever again make detailed provisions for future suburbs or for the subdivision of en globo land without first ensuring that all subdivision roads will be acquired for value by a public authority and (presumably) provided for in that context in planning instruments ", a situation which would seriously impede development because the location of future parks, roads, drainage easements and other public utilities was unclear. " Earmarking " land for such purposes in the draft LEP (for the Minister's confirmation) is but one option available to Council, but it is not exclusive or mandatory, and the use of the DCP to set out the Council's intentions in respect of fulfilling the LEP's strategy for Sutherland Centre and its public domain is not offensive to the scheme of the planning legislation, or that of the LEP.

This position taken by the Council finds support in the authorities. In Stockland Development Pty Ltd v Manly Council ('Stockland' ) [2004] NSWLEC 472; 136 LGERA 254, McClellan J, when Chief Judge of this court, reviewed relevant authorities, including Zhang, Ligon and others, and distilled (at 272, in [87]) the following principles relevant to the application and consideration of DCPs:

" A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.

A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property."

His Honour then usefully added (as [88]):

"The Environmental Planning & Assessment Act 1979 gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court."

In support of the legality of the possible use of a DCP to achieve the effect complained of here, Mr Robertson relies heavily on a line of authority commenced by the High Court's decision in Lloyd v Robinson (1962) 107 CLR 142. Mr Larkin seeks to dismiss those cases as irrelevant, because they deal with the Western Australian planning regime, but I find them relevant and useful statements of the general law. Again it is, regrettably, necessary to quote at length.

The following extracts are taken from the joint judgment of Kitto, Menzies, and Owen JJ (speaking as a unanimous High Court) in Lloyd v Robinson (at 152-155):

"What is important is to observe that the respondents by their statement of claim attacked as invalid conditions of the approval (1) the Board's condition that approximately 30 acres of land be transferred free of cost to the Crown, (2) the Minister's decision that areas of 10 and 15 acres respectively be transferred free of cost to the Crown, (3) the Board's condition that a strip of land 100 links in width along the Old Coast Road be provided for road widening, and (4) the Board's condition that a service road be constructed on the 50 links (i.e. of the said 100 links) adjacent to the land to be sold in subdivision. We shall deal with these in turn.

The first and second must be considered together, because the effect of the Minister's decision was to vary the Board's condition as to the areas to be transferred to the Crown for park and recreation purposes by confining it to the two areas of 10 acres and 15 acres respectively. This condition was attacked as being beyond power, the substantial contentions being, first, that the two areas concerned lay outside the land which was the immediate subject of the application and therefore were being insisted upon, not as reserves to be set apart in the subdivision for which the approval was sought, but for purposes extraneous to that subdivision and therefore outside the purposes to which the Board was legally entitled to have regard; and secondly that to impose any condition requiring a transfer of land to the Crown free of cost was outside the contemplation of the Act, because in the absence of any provision for compensation the Act should not be construed as intending to authorize what would amount to the confiscation of private property.

...

If it were correct the Board could never give an approval of a subdivision conditionally upon the applicant's giving up land for any purpose, for roads, for public recreational areas, for foreshore reservation purposes, or for anything else, however relevant the condition might be to the observance of proper standards in local development. Given the necessary relevance of the conditions to the particular step which the Board is asked to approve, there is no foothold for any argument based on the general principle against construing statutes as enabling private property to be expropriated without compensation. The Act at its commencement took away the proprietary right to sub-divide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion: ... If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions. ... True it is that if the land required for open space reserves is transferred to the Crown for park and recreation purposes as the conditions require, the beneficial title to it will pass to or be vested in the Crown without legal fetter. There will be a moral obligation on the Government to keep it reserved for the purposes mentioned, but no legally enforceable obligation. The ultimate sanction must be political only. But the fact remains that the Board has stipulated for the transfer solely in order to serve purposes which it is justified in serving by an exercise of its power to impose conditions, and has done so because a reliance upon the continuing good faith of the Administration provides the only available means by which the fulfilment of those purposes may be practically secured."

Their Honours went on to deal with detailed conditions requiring provision of strips of land for various road purposes, and concluded:

"Even a completely unconditional approval would have left the respondents under the necessity of providing the 100-link strip as shown on their sketch. We think it desirable to add that as at present advised we see no reason to suppose that it is in all cases, or in this particular case, beyond the Board's powers with respect to attaching conditions to an approval of subdivision to require that land be allowed for the widening of a contiguous road, or for the provision of an access road such as that which is contemplated here.

The respondents' final attack is upon the Board's condition as to constructing the 50-link service road. It is a sufficient answer that in our opinion the construction of the proposed internal roads of an area for which approval of subdivision is applied for is a matter to which a condition may properly be directed, and that there is no material difference between the access road in question and any other of the roads provided for on the sketch submitted with the application for approval" .

Mr Robertson submits (par 16) that Lloyd v Robinson lays down the principle that the statutory power to consent to development of land on conditions authorises the imposition of conditions requiring developers to provide land without cost for appropriate public purposes having a " real connection with the development ".

In Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30, McHugh J quoted from Lloyd v Robinson some of what I have set out above, and then said (at [51]):

"The decision in Lloyd inevitably leads to the conclusion that the Commission could exercise its powers under s 20 of the Town Planning Act by approving Temwood's applications for subdivision subject to the condition that Temwood convey the Foreshore Reserve to the Crown free of cost and without compensation. When the Commission made its decision, Temwood had no right to compensation in respect of the Foreshore Reserve and, as the Court pointed out in Lloyd , the Act ''took away the proprietary right to subdivide without approval, and it gave no compensation for the loss'' of that right. Even if it is not correct to characterise the Act as taking away the proprietary right to subdivide without approval, the condition in the present case was validly imposed as it was within the limits which were indicated by the nature of the purposes for which the Commission was entrusted with the relevant discretion."

Gummow and Hayne JJ noted (at [115]) that the relevant Town Planning Act assumed the power to impose the relevant condition, " capable of being regarded as related to the purpose for which the functions of the Commission... were being exercised" and that "the imposition of the Condition was within power" . Before quoting (in [117]) from Lloyd v Robinson , their Honours said (in [116]):

"Further, the imposition of the Condition did not acquire the

character of an exercise of power to achieve extraneous ends or objects merely because the inescapable effect of the legislation under which it was imposed was that, if Temwood were then to subdivide, the right to do so may have been achieved at what Temwood regarded as too high a cost. That, as the Commission rightly emphasised, is a proposition supported by Lloyd v Robinson ."

Mr Robertson says that the Lloyd v Robinson principle is " really fundamental to understanding planning law in this country" (T25.3.11, p7, LL44-45). He acknowledged (Tp8) that the NSW legislation includes, in s 26, a power, but not a duty , to identify in an LEP land for reservation, with the consequence that an owner obtains some limited rights under the JTC Act. " That's simply an option available to council, one of many " (Tp8, L6). Other options include the LG Act, Roads Act , and s 7B of the JTC Act , none of which require indication of such an intention in an environmental planning instrument (see discussion of the LG Act and JTC Act options in

R&R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; 237 CLR 603).

Mr Robertson's written submissions dealt with the two WA High Court cases, and went on to say (in par 16):

"... In this case, the Applicant offered the land free of cost to Council: there is no question concerning the power of Council to impose the conditions of consent requiring dedication when that was of the essence of the development application itself. The applicant's argument about circumventing s.94 is therefore irrelevant, and could not possibly arise where it is sought to bring down the DCP, and necessarily much of the planning controls of the Sutherland Shire ".

In the context of Stockland ([119]-[120] above), the locality strategies here make clear that the DCP is to be read as a discretionary policy document to be considered, and certainly not as a statutory instrument purporting to have some direct legal effect on land, including reservation and dedication.

As Mr Robertson submitted following the court's extensive tour of the relevant provisions in the LEP and DCP (at T25.3.11, p4, LL10-30):

"So the creation of this particular project, and indeed ..., the whole build out of the revitalised centre for Sutherland is dependent upon private owners yielding some of their site for public purposes in exchange as a quid pro quo for obtaining these rights recognised through the amalgamation plans which enable them to construct mix development buildings to significant heights, that is creating medium to high density residential development, together with retail and commercial on the lower floors of the buildings.

So the concept of which you see a vignette in this case is in fact a pervasive scheme for the redevelopment of the Sutherland Centre. If my learned friend is correct, ... a planning authority cannot show on a policy document its future intentions relating to the balance, the planning balance, the mix of public domain and private domain in a redevelopment of an urban centre... to ensure that you get a better outcome for the community... determined by the planning authority. In this case a Council which does so through a publicly accountable and democratic process."

CONSIDERATION

The appropriate principles of statutory construction are those stated by the High Court in Blue Sky at 381-2, pars [67]-[73] (see [83] above). In Castle at [62], Biscoe J noted that this extract from Blue Sky reflects the High Court's insistence that "legislation is construed to give effect, so far as its language permits, to its purpose ", and that the modern interpretation legislation goes beyond the common law:

"... which requires an ambiguity or inconsistency before a court can have regard to the purpose. The interpretation legislation requires the legislative purpose to be taken into account in construing legislative provisions, "not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open": Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J. There is a limit because the interpretation legislation requires a court to construe legislation, not to rewrite it, in light of its purposes (ibid). Sometimes, however, it is "difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language".

(See also Nystrom at [54]).

There was some controversy in argument concerning the use of concepts like " hierarchy " and " subordinate " in respect of both the statutory powers and the planning documents, but the court accepts Mr Larkin's suggestion that they are used in his submissions only in the sense in which they are used in par [70] of Blue Sky (quoted in [83] above).

The competing cases made on validity, and on the exercise of the relevant powers in the EPA Act, need to be viewed also against the role to be played in development assessment by the provisions of a DCP, the role of which is to make more detailed/specific provisions aimed at achieving the purposes of the relevant LEP. (See again the statements made in Stockland , quoted in [119]-[120] above).

The power in s 74C(1) to make a DCP must be construed in a manner " consistent " and " harmonious " with the statutory scheme as a whole.

I have already referred (at [75], [115] and [119]) to the Court of Appeal's decision in Zhang , where the DCP concerned " distance standards " to be applied in approving brothels: Did those standards prohibit brothels within those distances? It was settled law by the time of Zhang , that the decision-maker must give " real ", as in " proper, genuine and realistic" , consideration to the provisions of a relevant DCP, and that mere advertence to them is not sufficient. The standards in Zhang 's DCP could not be taken simpliciter as a prohibition. Spigelman CJ said (at [74]-[75]):

74. A development control plan is not an "environmental planning instrument": see definition in s 4. Accordingly, the requirement in s 80(2) that a consent authority "must refuse" an application that would "result in a contravention of" such an instrument does not apply to a development control plan. Furthermore, the proscription, by s 76B, of any development prohibited by an environmental

planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a "non-discretionary development standard" which, if complied with, would take away a consent authority's discretion under s 79C(2).

75. The consent authority has a wide ranging discretion - one of the matters required to be taken into account is 'the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process...."

It should be patently clear from my analysis of the LEP and DCP that I am in no doubt whatever that both were made, and both interrelate, exactly as required and envisaged by the EPA Act and the relevant authorities. The Council chose not to go down the LEP/s 26 route (T24.3.11, p54, LL11-15).

It is also clear from the evidence in this case that provision in the DA for the applicant's dedication of this laneway was a key consideration in Council's approval decision, because the overall form of the project does not strictly fit map 12g (see [9] above, and T24.3.11, p29, LL43-45). The lane ensures that the failure to amalgamate into the project the adjacent St Vincent de Paul site could be sorted out later - that site was not left isolated.

Under the general law ( Lloyd v Robinson, Temwood ) an approving authority can impose a condition requiring dedication of land for public purposes. In NSW that situation is tempered by legislation - ss 26 and 27 of the EPA Act , and the provisions of the JTC Act - but the dedication required in this case is not mandated by a condition of consent.

The applicant was persuaded to propose it, the DA and plans reflected it, and the DC accepted the proposal. Condition 1 incorporates the proposing documents into the consent. Condition 71 requires the dedication process to be completed by a certain stage of the project. The other contested conditions deal with practical implementation of the dedication.

Clearly the quid pro quo concept has a role to play in such matters (c.f. view of Ms Francis (at [72] above)). Rezonings and concessions on controls increase the profitability of the exploitation of land. The Council has the responsibility to formulate and pursue a concept for its area, including " good " development and an improved public domain. It has gone to a great deal of trouble in the LEP and DCP in respect of important areas under its control, such as Sutherland Centre, and it has evinced the intention that some of the additional profit gained from concessions it grants to proponents, in a strategic approach to (re)development of key parts of the Shire is to be " clawed back " and used to improve and add to public domain, which, in turn, should add value to the projects which fund or facilitate it.

The plans for the public domain include a clearly integrated network of rear lanes and front boulevards, of which the laneway involved in the present matter is an important component. The DCP did not go beyond a schematic indication of where the laneways and boulevards would be located. The Council indicated to the applicant that the dedication of the laneway would be important in the processing of its proposal, and the DC reflects the quid pro quo principle in the face of the applicant's failure to secure amalgamation with the St Vincent de Paul site. The approval and incorporation in the DC of plans showing the laneway as part of the applicant's proposal achieved the voluntary dedication, not any aspect of the operation of the DCP, nor the imposition of any condition.

CONCLUSION

The challenge to the DCP fails, and the class 4 application must be dismissed. The court need not address the submissions made on questions of severance, relief and discretion.

It would appear to the court appropriate that the applicant be ordered to pay the respondent's costs, but the parties have asked me to reserve the question.

The companion class 1 proceedings are listed for hearing next week, so all the exhibits in these class 4 proceedings are returned, including the folder of documents exhibited to Mr Curtis's affidavits.

ORDERS

The Orders of the court are:

1. The class 4 further amended summons is dismissed.

2. Costs reserved.

3. Exhibits returned.

Decision last updated: 21 April 2011

Medium Neutral Citation:	Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52
Hearing dates:	24, 25 and 30 March 2011
Decision date:	20 April 2011
Before:	Sheahan J
Decision:	1. 1.The class 4 further amended summons is dismissed. 2. 2.Costs reserved. 3. Exhibits returned.
Catchwords:	DEVELOPMENT CONTROL PLAN: challenge to validity; indication that land will be required for public purposes such as a laneway; whether such indication is beyond power; whether such indication effectively requires dedication of the land
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 Local Government Act 1993 Roads Act 1993 Environmental Planning and Assessment Regulation 2000 Sutherland Shire Development Control Plan 2006 Sutherland Shire Local Environmental Plan 2006
Cases Cited:	Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Carson v Department of Environment & Planning (1985) 3 NSWLR 99 Castle Constructions Pty Ltd v North Sydney Council [2007] NSWLEC 459 Citadel Property Group (Sutherland) Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1082 Dent v Hastings Council [1999] NSWLEC 9 Guideline Drafting & Design v Marrickville Municipal Council (1988) 64 LGRA 275 Lloyd v Robinson (1962) 107 CLR 142 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Wallis (1949) 78 CLR 529 R&R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; 237 CLR 603 Restifa Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1267 7-Eleven Stores Pty Ld v City of Sydney Council [2004] NSWLEC 154;138 LGERA 125 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; 136 LGERA 254 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589
Category:	Principal judgment
Parties:	Conquest Constructions (NSW) Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Mr P W Larkin with Mr C Burgess (Barristers) (Applicant) Mr T Robertson SC (Barrister) (Respondent) Shaw Reynolds Bowen & Gerathy (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	40151 of 2011