Cranky Rock Road Action Group Inc. v Cowra Shire Council - [2005] NSWLEC 674

No judgment structure available for this case.

Reported Decision: 143 LGERA 356

Land and Environment Court

of New South Wales

CITATION:
Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2005] NSWLEC 674
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Cranky Rock Road Action Group Inc.
RESPONDENTS:
Cowra Shire Council and Ors.

FILE NUMBER(S):
40106 of 2005

CORAM:
Bignold J

KEY ISSUES:
Injunctions and Declarations :- challenge to validity of development consent—development application not accompanied by a statement of Environmental Effects—alleged failure by consent authority to consider material considerations under LEP and DCP.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
s 78A
s82A
79C and 101.
Environmental Planning and Assessment Regulation 2000
cl 50

CASES CITED:
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446;
Cameron v Lake Macquarie City Council (2000) 107 LGERA 308;
City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22;
Commonwealth of Australia v Verwayen (1990) 170 CLR 394;
Hall v Minister for Multicultural Affairs (2000) 59 ALD 458;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Hornsby Shire Council v Devery (1965) 12 LGRA 34;
Manly Council v Hortis (2001) 113 LGERA 321;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Randwick Municipal Council v Broten (1964) LGRA 271;
Randwick Municipal Council v Total Oil Refineries (Aust) Ltd;
Tasker v Fullwood (1978) 1 NSWLR 20· Timbarra Protection Co-alition Inc v Ross Mining NL (1999) 102 LGERA 52;
Weal v Bathurst City Council (2000) 111LGERA 181;
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 08/09/2005

DATE OF JUDGMENT:

12/09/2005

EX TEMPORE JUDGMENT DATE:
08/16/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, Barrister
SOLICITORS
Environmental Defender’s Office
FIRST RESPONDENT:
Ms J Jagot, Barrister
THIRD RESPONDENT:
Mr I Hemmings, Barrister
SOLICITORS:
FIRST RESPONDENT
Minter Ellison
THIRD RESPONDENT
W G McNally & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

9 December 2005

40106 of 2005 CRANKY ROCK ROAD ACTION GROUP INC v. COWRA SHIRE COUNCIL; CPC LAND DEVELOPMENT CONSULTANTS PTY LTD; PETER CRAMPTON AND ANOR.

A. INTRODUCTION

1 HIS HONOUR: By its amended class 4 application filed 17 May 2005, the Applicant seeks a declaration that a development consent granted on 13 September 2004 by the first Respondent (the Council) to the development application (DA 373/2003) made by the second Respondent (the development consent) is void and of no effect and seeks an injunction restraining the third Respondents from acting upon that development consent.

2 Development Application No 373/2003 was made by the second Respondent on behalf of the third Respondents and sought consent to the subdivision of land known as lot 105 Deposited Plan 750370 situate at No 249 Pride of Oak Road, Canowindra (the subject land) into 28 lots of various sizes ranging between 6 and 29 hectares.

3 As originally filed, the class 4 proceedings were brought against the first and second Respondents.

4 On their initiative, the third Respondents who own the subject land were joined by order of the Court made on 8 April 2005 and by notice filed 2 May 2005, the Applicant discontinued the proceedings against the second Respondent upon the agreed basis that there would be no order as to costs between the Applicant and the second Respondent. (The second Respondent is a Town Planning Consultant which had made the development application on behalf of the third Respondents.)

5 According to the Amended Points of Claim filed on 17 May 2005, the following separate grounds of invalidity of the development consent are asserted—

Environmental Planning and Assessment Act 1979

EP&A Act

Environmental Planning and Assessment Regulation 2000

(ii) in granting the development consent, the Council had failed to take into consideration the following material considerations—

(a) cl 14(4) of Cowra Local Environmental Plan 1990 (the LEP);
(b) cl 2.1(c) of Cowra Development Control Plan—Guidelines for Rural Development (the DCP);
(c) the impacts of the proposed development being the impacts from feral animals and noxious weeds; and
(d) the public submissions made in response to the public advertising of the development application insofar as those submissions had identified the impacts of feral animals and noxious weeds.

6 Each of the first and third Respondents in their respective Points of Defence deny that there was any failure by the Council, in determining the development application, to take into account material considerations, admit that the development application was not accompanied by a statement of environmental effects but deny that in consequence of this admitted fact that either the development application or the development consent was invalidated and plead that the development consent is protected from legal challenge by virtue of the EP&A Act, s 101.

7 Finally, both Respondents invite the Court to withhold on discretionary grounds any relief that the Applicant might otherwise be entitled to in these proceedings.

8 In referring to “the development consent” granted by the Council on 13 September 2004, it is necessary to note the undisputed facts (recognised by the pleadings) that the Council originally had granted consent to the development application on 23 February 2004 and that in response to the second Respondent’s request pursuant to the EP&A Act, s 82A for a review of its original determination the Council on 13 September 2004 changed its original determination by varying a number of the conditions that it had imposed in its original determination granting development consent. This action resulted in the Council giving the second Respondent an “Amended Notice of Determination of the Development Application” which granted development consent subject to stipulated conditions.

9 This particular feature of the development consent only has relevance to one issue raised by the pleadings in this case—namely the Respondents’ collective reliance upon the EP&A Act, s 101 to preclude the Applicant’s challenge to the validity of the development consent. However, since this issue was not raised by the Respondents by way of demurrer (or equivalent procedure) to the Applicant’s claims, I will not adjudicate upon the issue by way of preliminary determination. Instead I will proceed in the same manner that the parties presented their respective cases, namely by first considering each of the alleged grounds of invalidity of the development consent before considering the defences (including the s 101 defence) raised by the Respondents if any of the alleged grounds of invalidity is established.

B. THE UNDISPUTED FACTS CONCERNING THE GRANT OF THE DEVELOPMENT CONSENT

10 On 14 October 2003, the second Respondent lodged with the Council a development application for the subdivision of the subject land into 28 lots. (The Council registered the receipt of the development application with the identifier DA No 373/2003). The subject land is zoned Rural 1(a) under the LEP and not being designated “prime agricultural land” is capable of being subdivided in accordance with cl 14 of the LEP.

11 The development application documentation included (a) a completed standard development application form provided by the Council and; (b) a draft plan of subdivision showing the proposed lots most of which were to be accessed via a proposed subdivision road intersecting with Cranky Rock Road and some of which had frontage to Pride of Oak Road (an existing road). A copy of the draft plan of subdivision is annexed hereto and marked “A”.

12 The development application form included the following section which was completed in the manner indicated below—

To assess your proposal the consent authority needs to understand the impacts it will have. Depending upon the nature and scale of your proposal, you need to provide one or more of the statements listed below to explain the environmental effects of your proposal. See Section 4 of the DA Supplement.

Is your proposal designated development?

No Please attach statement of environmental effects

Is your proposal likely to impact on threatened species , populations, ecological communities or their habitats?

13 It is common ground that no statement of environmental effects was attached to the development application and that no statement of environmental effects was ever submitted to the Council in support of the Development Application prior to the Council’s determination of that application granting the development consent.

14 The Council, in accordance with its Development Control Plan No 1/99—Advertising and Notification Policies published in the local paper on 5 November 2003 public notice of its receipt of the Development Application stating that the application and plans were on public exhibition and inviting any public submissions to be made to the Council. Additionally, the Council separately notified a number of neighbouring property owners in similar terms to the published public notice. The Council received a number of written objections to the proposed development. The action taken by the Council in accordance with Development Control Plan No 1/99 fell within the ambit of the EP&A Act, s 79A, although that action did not qualify the proposed development as “advertised development” in terms of that Act. In these circumstances, s 79A requires notification of a development application to be undertaken in accordance with the relevant development control plan and there is no suggestion in the present case that the requirements of s 79A were not satisfied by the Council’s actions.

15 The Council held a public forum on 15 December 2003 at which 3 of the objectors addressed the Council on their concerns with the proposed development.

16 On 27 January 2004, the Council obtained a written report from Mr Wayne McDonald, Consultant Town Planner (who apparently had been retained by the Council to evaluate the development application in the course of his general retainer from the Council as its Planning Consultant.) His Report was in the following terms:

File Note – DA 373/03

Development Application No. 373/03 was lodged by CPC Land Development Consultants Pty Ltd, on behalf of John Pattinson and Peter Crampton for the subdivision of lot 105, DP 750370, Cranky Rock Road, for a 28 new rural lots.

The subject lands are immediately adjacent to a previous rural subdivision area on Pride of Oak Road (DA 300/99) comprising some 50 lots.

Lot 105, DP 750370 has frontage to Cranky Rock Road (from which a new internal road is proposed) and also frontage to Pride of Oak Road.

Lands on the north, west and partly south of Lot 105 are agricultural, used predominately for grazing and viticultural activity. Lands to the southeast and east form part of the earlier subdivision undertaken by Unlimited Pty Limited, in which subdivision developed some 50 small rural lots and new roadways.

The sketch proposal of the concept layout provides for a 150 metres buffer along the northern, western and part of the southern boundaries to facilitate future dwelling setbacks to minimise potential effect and conflict on and from adjoining/adjacent agricultural practice. Lot sizes proposed vary from 6 – 29 hectares and are of sufficient dimension to allow suitable building and wastewater disposal envelopes to be situated outside the proposed buffer. Additional restriction as to use areas will be necessitated by easements and separation from waterways.

The subject lands are undulating to steep in parts and comprise several drainage lines. Scattered timber exists, with the north-western quadrant comprising some thicker stands.

The lands subject of the development application, are zoned 1(a) rural and are categorised as non-prime agricultural land in accordance with Cowra Local Environmental Plan 1990 and associated mapping. As such, the proposed development is permissible in accordance with Clause 14 of the LEP, with the consent of Council.

The lands (Lot 105, DP 750370) are not indicated on Council’s mapping as being subject to bushfire hazard.

In accordance with Council policy, the development proposal was advertised and notified. During this period, which concluded 19th November 03, three submissions were received from adjoining/adjacent landowners. (Copies attached)

Belubula Park

Pride of Oak

Mr Wanless also requested, through Freedom of Information, documents relating to this development and the former DA 300/99.

2. T & P Grant and S. Cartwright Riverside Canowindra object to the proposal as they consider the land to be prime agricultural land, are concerned relative to noxious weeds, animals and bushfire risk, and the types of dwellings that may be built. They raise issues to notifications for 1080 poisoning and bushfire matters.

Leitrum

Each of these submission makers were invited to and attended Council’s Ordinary meeting of 15th December 2003, where they verbally put forward their concerns in the public forum. (Extract of Council’s minutes is attached).

Council’s Roads Manager has viewed the development site with the Trainee Town Planner and myself and the Design Engineer has prepared comments relative to the necessary road works. As with the previous development, an increase in the traffic along the Cranky Road Road will eventuate with subsequent development and residency and accordingly, a capital works requirement for road upgrading from the Belubula Way has been prepared.

With regard to the proposed internal access road terminating in a cul-de-sac, an alternate design incorporating opportunity for a secondary through traffic access to Pride of Oak Road is considered appropriate if achievable.

The proposed buffer area of 150 metres on the northern, southern and western sides of the development may lend itself to contain a fire trail link between Cranky Rock Road and Pride of Oak Road if desired and required by the NSW Rural Fire Service.

Referral of the matter was not specifically undertaken as integrated development to the NSW Rural Fire Service; however, referral through the local RFS was initiated, to which no formal response has been received.

The proposed development is capable of proceeding in accordance with Council’s LEP under the provisions of Clause 14 as non-prime agricultural land, with the consent of Council.

Assessment of the proposal in accordance with the provisions of Section 79C of the EP & A Act 1979, provides:-

2. The proposal is generally consistent with the objectives of the LEP and the specific 1(a) rural zone objectives;

3. The proposal is generally consistent with the relevant Cowra Development Control Plans and Policies;

4. The potential impacts from the development on the environment, natural and built and social and economic impacts are unlikely to be significant.

5. Issues raised in submissions from adjoining/adjacent land holders with respect to economic loss, Lot size and potential risk are legitimate; however, are not considered to be sufficient to warrant refusal:-

2. the proposed Lot sizes are compliant with the Cowra LEP;

3. an increased risk of noxious weed and animal infestation may eventuate, however, such circumstance remains the primary responsibility of the landowners and the Rural Lands Protection Board; and

4. an increased risk of bushfire hazard is unlikely to occur, as the lands are not mapped as category one hazard and comprise substantially cleared crop and grazing land with scattered timber only. Provisions of Planning for Bushfire Protection Guideline 2001 will be capable of being met by the subdivision and any subsequent dwelling development on lots created.

5. Water supply for domestic purposes is capable of being collected from roofs associated with subsequent development. Dam construction and bores would generally require the consent of the Department of Infrastructure and Natural Resources (former DLWC).

There are no specific State or Regional Environmental Plans or Departmental Directives relative to the proposed.

The development will be subject of Council Developer Contributions Plans and will be required to undertake and contribute to Capital works associated with the local road network. Rural addressing is also appropriate.

A late submission from Walnut Grove Pty Limited, Canowindra, dated 21st January 2004, has been received expressing concerns relative to potential fire hazard and vermin. This submission was received outside of the submission period however, the issues identified have been considered under other submissions received.

Recommended

That consent be granted to Development Application No. 373/03, for the subdivision of Lot 105, DP 750370, Cranky Rock Road into 28 lots in three stages, subject to the conditions in the attached schedule. (That schedule contained some 72 stipulated conditions.)

17 At a further open forum held by the Council on 27 January 2004 the same three objectors who had previously addressed the Council again addressed their concerns with the proposed development.

18 On 28 January 2004 a further detailed written objection to the proposed subdivision was received by the Council from a number of residents of Cranky Rock Road. The written objection elaborated on the perceived unfavourable social and environmental impacts of the proposed subdivision.

19 In respect of adverse environmental impacts, the written objection stated, inter alia:

Concerned residents have also identified a number of environmental issues that indicate that close settlement on the scale proposed is incompatible with the existing land use of mixed farming.

council shall not grant consent to a subdivision under this clause unless it is satisfied that the lot size permit the sighting

of dwelling houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice

20 Thereafter, the written objection expounded a few particular points including the following:

3) The control of noxious animals is an issue of deep concern for the farming community. Landholders are obliged by law to control rabbits and foxes under the Pastures Protection Act, however the proliferation of small blocks on our boundaries is making it difficult for farmers to meet these obligations. This issue affects landholders in two ways. Firstly the proliferation of lifestyle blocks has provided harbour to rabbits and foxes and the owners of blocks are taking no action to eradicate. Secondly, the Rural Lands Protection Board guidelines state that 1080 poison baits cannot be placed within 500 metres of a habitat. As such those landholders who will be bounded on several sides by small block will be unable to protect their property from noxious animals. This is a serious issue for farmers and directly inhibits their ability to maintain normal farming practices in regard to feral animal control. Section 14(4) of the L.E.P should take effect on this issue and small lots should not be approved unless a dwelling can be sighted (sic) 500 metres or more from farming land. Landholders feel that this issue has the potential to undermine their prosperity, security and present rights.

21 On 1 February 2004 the Council inspected the subject land in the company of the developer and of the local objectors.

22 Thereafter the Council’s Environmental Planning Manager, Mr Lindsay was asked by the Council to provide additional conditions “that would resolve both the objectors and Council’s concerns with the proposed development”. (The summary of “main objections” included “allotment sizes (200 acres minimum)” and “feral animals and noxious weeds”.)

23 On 16 February 2004 the Council’s Operations Committee considered Mr Lindsay’s report on the proposed subdivision which recommended the grant of development consent subject to some 79 stipulated conditions (the vast majority of which had been recommended by the Council’s Town Planning Consultant Mr McDonald in his planning evaluation which had been fully adopted by Mr Lindsay). The Committee adopted Mr Lindsay’s recommendation and resolved to recommend that the Council grant consent. Mr Lindsay’s Report included the following discussion in response to issues raised by the objectors:

In regard to allotment sizes the proposed development conforms with Council’s Local Environmental Plan (LEP 1990) and similar development approvals. It is not seen as appropriate to set a minimum size of 200 acres as suggested at this point, however, such consideration of allotment sizes for the future may be given as part of the LEP review.

In regard to feral animals and noxious weeds both these concerns have relevant regulatory bodies to enforce such provisions the Rural Lands Protection Board and Council’s Noxious Weed Officer, and no additional conditions of consent are proposed for this issue.

……….

………..

The objectors to this development have raised issues which have been of similar concern to the Environmental Planning Department Staff as well, however, the staff have to work to the planning instruments available to them and provide similar guidelines to developers to work to. As previously mentioned Council’s LEP is currently under review and in regard to allotment sizes, opportunity will arise for discussion during this process when the Department of Infrastructure Planning and Natural Resources (DIPNR) and NSW Agriculture formally provide suggested rural development standard which have been intimated at 400HA or greater. This when aired may result in public debate similar to that which occurred during the formulation of the current LEP and its standards to which this proposal conforms.

Any change to existing conditions of a situation usually bring about debate and I feel the Environmental Planning Department and Council have brought about this debate in a proactive and positive way through its current notification and advertising policy which hopefully will lead to a more sustainable development of the rural area in the future through revised standards.

However, in respect of the current Development Application I feel that more than adequate conditions are proposed on the development to ensure an appropriate standard under Council’s current LEP has been provided now and the application is recommended for approval without further delay.

24 In the meantime, a further written objection was received by the Council from Mr Cartwright, on behalf of himself and other concerned landholders. That objection included the suggestion that a condition should be imposed “to protect the rights of existing agricultural businesses and activities on adjacent property—particularly related to stock farming, feedlotting vineyards and hay and grain production”.

25 This objection was specifically addressed by Mr W McDonald, the Council’s Consultant Town Planner. His response to the suggestion of the imposition of a condition to protect existing agricultural businesses was as follows:

The application provides a 150 metre buffer or area of land to which a restriction as to use will apply on the perimeter of the subject lands where they adjoin larger agricultural holdings. This is a requirement of Council to facilitate minimal interface conflict between competing landuses. The 150 metres is compliant with current pesticide legislation and aerial application in proximity to residential premises.

26 At its meeting held on 23 February 2004, the Council’s open forum was again addressed by three of the objectors who advocated their concerns. Later at that meeting, the Council determined the development application by granting development consent subject to 79 stipulated conditions, as had been recommended by the Council’s Operations Committee (by virtue of its adoption and support of Mr Lindsay’s recommendation which in turn was based upon his adoption of Mr McDonald’s planning evaluation that I have recited in par 16 of these reasons).

27 The conditions imposed on the grant of development consent included the following conditions (which obviously bear upon the relationship between the proposed subdivision and neighbouring lands and agricultural land uses, being the central issue that had been raised by the objectors):

sufficient dividing fence

b. No person shall dwell or remain in any dwelling house, cottage other erection or construction or otherwise for the purpose of or capable of use for habitation purposes upon the land hereby burdened being land within 150 metres of any boundary of the lot adjoining/adjacent to a holding or agricultural nature.

28 It is to be noted that conditions 35 and 53 which apply to Stages 2 and 3 respectively of the approved subdivision are to the same or similar effect as condition 11 (which applies to Stage 1). These conditions were anticipated by the draft plan of subdivision that had been submitted with Development Application No 373/2003 which had depicted the relevant buffers 150 m wide from the relevant common property boundaries.

29 On 11 March 2004, the second Respondent requested that the Council review conditions 6, 9, 10, 60, 61, 62 and 67 of the Development Consent “pending a formal appeal to the Land and Environment Court”

30 By letter dated 30 April 2004, the Council’s Consultant Town Planner, Mr McDonald, notified the second Respondent “that a review of the development determination may be applied for in accordance with s 82A of the Environmental Planning and Assessment Act 1979” and that its correspondence “is in a format acceptable as a requirement for review of the development determination No 373/03 subject to the lodgement of the necessary prescribed fee”. He also advised that the Council on 27 April 2004 had resolved to authorise its Environmental Planning Manager to establish an Independent Hearing Assessment Panel for the review of the Council’s determination of Development Application No 373/2003.

31 On 9 June 2004 the Council received a letter from Solicitors representing W and L Wanless (who had raised objections against the development proposal) advising that they had been instructed to act for the clients in respect of the review process of the Council’s determination granting the development consent.

32 Thereafter, the Council notified objectors that there would be held on 16 July 2004 a meeting of the Independent Hearing Assessment Panel at the Council’s chambers at which a public forum would be available for any member of the public to address the meeting.

33 At that meeting, the Panel was addressed by the second Respondent and third Respondents and by a number of the objectors. Thereafter, the Panel adjourned to inspect the subject land before resuming its deliberations at the Council’s chambers before making recommendations concerning the conditions of the development consent that it had reviewed.

34 Following receipt of the written report of the Independent Hearing Assessment Panel, the Council obtained a report from Mr McDonald Consultant Town Planner (who had provided the Council with a town planning evaluation of the original development application). The Council’s Acting Environmental Manager in his report dated 31 August 2004 recommended that the Council adopt the recommendations of Mr McDonald in preference to the slightly different recommendations of the Independent Hearing Assessment Panel.

35 At its meeting held on 13 September 2004, the Council adopted all of the recommendations of the Independent Hearing Assessment Panel except for its recommendation that Condition 62 be not altered. (In respect of that condition the Council’s decision was to replace the original condition with a similar condition but only requiring the placement of 50 linear metres of bitumen seal.)

36 On 13 September 2004 the Council gave the second Respondent an “Amended Notice of Determination of the Development Application” advising that Development Application No 373/2003 had been determined by the granting of consent subject to the conditions attached. The Notification included the following endorsement (as required by the EP&A Act, ss 81, 82A(8) and 83 in respect of the determination of a development application):

This consent is operative from 13 September 2004 for a period of five years. The consent must be commenced within this period or it will lapse on 13 September 2009.

C. THE STATUTORY PROVISIONS RELEVANT TO THE GRANT OF THE DEVELOPMENT CONSENT

37 There are a number of statutory provisions that need to be recited that are relevant to the grant of the development consent and the grounds of invalidity of it as asserted by the Applicant in these proceedings. Firstly there are provisions of the EPA and the Regulation that are relevant to the grant of the development consent, concerning (i) the making of the development application; (ii) the determination of the development application; and (iii) the review of the Council’s original determination. Secondly, there are the relevant provisions of the LEP and DCP.

38 The relevant provisions concerning the making of the development application are (i) the EP&A Act, s 78A; (ii) cl 50 of the Regulation which were in the following terms when the development application No 323/2003 was made on 14 October 2003—

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

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

(9) The regulations may specify other things that are required to be submitted with a development application.

39 Part 1 of Schedule 1 to the Regulation provides as follows:

A development application must contain the following information:

(1) A development application must be accompanied by the following documents:

Wilderness Act 1987

State Environmental Planning Policy No 65—Design Quality of Residential Flat Development

40 Section 79C(1) which is relevant to the Council’s determination of the Development Application relevantly provided as follows:

that apply to the land to which the development application relates,

41 Section 82A which is relevant to the Council’s decision reviewing its original determination of the development application and granting the development consent provides as follows:

42 The relevant provisions of the LEP which are those applying to the development of land within Zone No 1(a) “Rural” not being “prime agricultural land” (a defined term) are as follows:

(1) The objectives of a zone are set out in the Table to this clause under the heading Objectives of zone appearing in the matter relating to the zone.

(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which:

are specified under the headings Without consent, Subject to conditions, Only with consent and prohibited, respectively, appearing in the matter relating to the zone.

(3) In granting consent to the carrying out of development on land to which this plan applies, the Council shall have regard to whether the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

Zone No 1 (a) Rural Zone

1 Objectives of zone

(a) to promote the use of agricultural land within its capability, and

(b) to promote the use of agricultural land within its capability, and

(c) to provide opportunities for people to live in rural areas, and

(d) to establish a preference for non-agricultural development (particularly dwelling-houses) being locate don land other than prime agricultural land, unless there are no alternative, practical and cost effective sites available, and

(e) to take into consideration the potential economic recovery of known mineral and extractive resources in the siting of buildings, and

(f) to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development within the capability of the land to support the development, and

(g) to permit development for small rural allotments of variable size to avoid waste and neglect of productive rural land, and

(h) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle, and

(i) to provide a choice of housing types and to support existing towns and villages.

10 Subdivision of land generally

(1) Subject to subclause (2), a person may, but only with the consent of the Council, subdivide land to which this plan applies.

(2) Land may be subdivided without development consent where the subdivision is for the purpose of:

(b) consolidation of allotments, or

(c) consolidation of allotments, or

(b) identifies any allotment which is intended to be used primarily for the purpose of agriculture, and

(c) identifies any allotment which is intended to be used primarily for the purposes of a dwelling-house, and

(d) identifies any allotment on which it is intended to erect a dwelling-house and states whether or not the dwelling-house is the primary purpose for which the allotment is being created, and

(e) shows the approximate location of any dwelling-house erected on the land at the date of the application.

(2) The Council shall not consent to the subdivision of land to which this clause applies which results in the creation of an allotment for the purposes of a dwelling-house where that allotment is less than 2 hectares in area.

(3) The Council shall not consent to subdivision of land to which this clause applies which results in the creation of an allotment on which there is an existing dwelling-house where that allotment is less than 2 hectares in area.

(4) Notwithstanding subclauses (2) and (3), the Council shall not grant consent to a subdivision under this clause unless it is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like).

43 It is to be noted that the majority of lands within the Shire of Cowra are included in Zone No 1(a) “Rural” (see Exhibit B/1) and that of the lands within that Zone approximately 40 percent are not “prime agricultural land” as that term is defined by the LEP, by reference to lands classifications shown on mapping undertaken by the Department of Agriculture (see Exhibit C/1).

44 The Council’s Development Control Plan—Guidelines for Rural Development (DCP) includes the following relevant provisions—

a) To provide more details about rural development issues than are contained in the Cowra LEP 1990, and to provide guidelines on the way in which the objectives of the LEP can be achieved.

b) To assist people who intend to make development applications or applications for subdivisions and building approval under the Local Government Act, by advising them about the sorts of issues Council is required to consider.

c) To recognise that land and its likely development will vary in different parts of the Shire, and to ensure that Council has the flexibility to adapt policies to the circumstances.

d) To enable policies on local development issues to be modified locally, as required from time to time.

This DCP will be taken into consideration by Council when it deals with development applications in the 1(a) zone.

Where development consent is not required, relevant policies and guidelines under this DCP will be taken into consideration when Council is dealing with applications for subdivision and building approvals under the Local Government Act.

Proposals which are consistent with this DCP are more likely to be quickly and favourably determined. However, Council recognises that a policy cannot apply equally in every situation. Therefore, a proposal that does not comply with policy will be considered and may be approved by Council, depending on the circumstances.

Council is concerned to ensure that development in the rural 1(a) zone is carried out in a way that protects and promotes agricultural activities. To this end, the following general policies apply:-

a) Non agricultural development, including dwellings, should be located on land that is not prime agricultural land, unless there are no alternative suitable sites.

b) Non agricultural development, particularly dwellings, should be sited and carried out so that it is unlikely to inhibit or give rise to complaints about normal farming practices (eg aerial spraying, separation from noxious odours etc).

c) Non agricultural development should be carried out in a way that minimise any adverse effects on adjoining land – particularly by way of:-

e) Non-agricultural development should be located and carried out in a manner that minimises the likelihood of added costs to ratepayers of the Shire as a result of the development.

f) Development which generates employment in the Shire is encouraged.
2.2 Specific Aspects

……………..

In considering a development application involving a concentration of non-agricultural uses (more than three dwellings) or which has the effect of creating such a concentration through a series of individual developments including previous approvals and existing development), the Council will have regard to whether the concentration is likely to have the effect of:-

i) Inhibiting or restricting farming practices in the area by way of increased complaints, land management problems or otherwise, and

The Council may consult with the Department of Agriculture in a similar manner to that set out in 2.2(a) above, in the case of such concentration of non agricultural use.

……………..

In addition, Council may require additional setback for dwellings of 150 m from adjoining rural properties to ensure that normal farming practices such as aerial spraying can proceed without prejudice to rural lifestyle or farm management.

Where the Council is of the opinion that land adjoining a proposed subdivision may be subjected to aerial agricultural spraying requiring that any subsequent development for residential purposes be set back 150 metres from the perimeter of the land to be subdivided or from any boundary within the subdivision, the subdivision is to be designed to enable a development for residential purposes to be set back the required 150 metres, unless a restriction on user is provided over the lot adjoining the subdivision nor the adjoining lot within the subdivision, to provide a 150 metres buffer (restriction area) to the site for development for residential purposes identified within each lot in the subdivision.

A requirement for the 150 meter setback from boundaries within a subdivision, will only considered by the Council where the Council is of the opinion that the purpose of the subdivision is for agricultural purposes that may require aerial agricultural spraying.

……………….

D. THE ALLEGED GROUNDS OF INVALIDITY OF THE DEVELOPMENT CONSENT

45 These grounds must be considered separately.

46 I was informed that this is the first occasion that the Court has been called upon to determine whether the failure of a development application to be accompanied by a Statement of Environmental Effects (SEE) invalidates or vitiates any development consent granted in respect of such a development application.

47 This is a surprising state of affairs given the fact that throughout the history of the EP&A Act there has been a continuous requirement (variously expressed either in that Act or in the Regulations) for an applicant for development consent to demonstrate that consideration has been given to the environmental impact of the proposed development. When the EP&A Act first came into operation s 77(3) required a development application to be “made in the prescribed form and manner” (par (b)) and where the application was not in respect of “designated development” par (c) required that application to—

(ii) set out the steps that he proposes to take to mitigate any likely adverse impact;

48 The Environmental Planning and Assessment Regulation 1980, cl 26(1)(a) prescribed the form for a development application and in the prescribed form (Form 3) there was included the following section:

The application is accompanied by—

* an environmental impact statement;

* information as to the impact of the proposal;

* strike out whichever is inapplicable

Refer to Notes 5 and 6 of the Instructions for Completing Development Application

49 Notes 5 and 6 of the prescribed form were as follows:

(a) demonstrating that consideration has been given to the environmental impact of the development; and

(b) setting out any steps to be taken to mitigate any likely adverse environmental impact,

must accompany the application.

50 It is important to recall that the EP&A Act has always distinguished “designated development” as a special class of development that is subjected by the Act to additional requirements and a special regime for environmental assessment that do not apply to other development applications ie to carry out other (ie non-designated) developments. Designated developments in the main have been confined to developments having potentially major environmental impacts. One of the additional requirements is the need for a development application to carry out designated development to be supported by an “environmental impact statement” which provides a comprehensive and scientifically objective evaluation of environmental impacts and is required to be prepared by a qualified person and to address specific criteria propounded by the Regulation. Another unique feature of the EP&A Act in relation to designated development is that third party (objector) appeal rights conferred by s 98 are confined to such development. (The judgment of Handley JA in Helman v Byron Shire Council (1995) 87 LGERA 349 contains a detailed exposition of the relevant provisions of the EP&A Act and Regulation in respect of designated development.)

51 In contrast to the structured and detailed requirements made by the EP&A Act and Regulation in respect of environmental impact statements relating to designated development proposals the only requirement in respect of a non-designated development proposal is that the applicant demonstrate that consideration has been given to the environmental impacts of the proposed development (as the requirement was originally enacted) or as currently provided by the Regulations that such a development application be accompanied by a statement of environmental effects (SEE).

52 There was an obvious connection between the requirement of the original EP&A Act, s 77(3)(c) that a development application for non-designated development embody information relevant to the environmental impact of the proposal and the obligation imposed by s 90(1)(b) on the consent authority in determining a development application to take into consideration “the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm”.

53 These original requirements of the EP&A Act in respect of the proper evaluation of the environmental impact of development proposals (including designated development proposals for which (as already noted) the Act prescribed a far more rigorous and specialised regime of evaluation) obviously were referable to the express objects of the Act specified in s 5 which objects included the promotion of the social and economic welfare of the community and a better environment (par (a) (i)) and the protection of the environment (par (a) (vi)) and the provision of increased opportunity for public involvement and participation in environmental planning assessment (par c).

54 The perpetuation throughout the history of the EP&A Act of these requirements doubtless has been an important feature of the system of environmental planning and assessment contributing to the attainment of the express objects of the Act. (Later in these reasons I must examine the specific function of the requirement that a SEE accompany a development application.)

55 The perpetuation of those features has however taken a form of increasing complexity involving the proliferation of requirements for the making of a development application such as is now evidenced by the detailed requirements of cl 50 of the Regulation and Part 1 of Schedule 1 to the Regulation (as set forth in par 38 of these reasons). Presumably it is because of this tendency that the original requirements sourced in the EP&A Act have for a long time been sourced in the Regulations. However, significantly, the EP&A Act has always been the source of obligation for an environmental impact statement to accompany a development application to carry out designated development as is currently expressed in s 78A(8)(a). Likewise, the more recent requirements for a species impact statement to accompany development proposals likely to significantly affect threatened species of flora and fauna have always been sourced in the EP&A Act is as currently expressed in s 78A(8)(b). As will later appear, the sourcing in the EP&A Act, of these particular obligations has a particular significance for the construction of the Regulation cl 50 and Part 1 of Schedule 1 to the Regulation which includes in the list of documents that must accompany a development application, an environmental impact statement and a species impact statement.

56 According to the Applicant’s Amended Points of Claim (par 14) the Development Application No 373/2003 was invalid, because it was not accompanied by the required SEE, and in consequence of that fact the Council could not lawfully grant development consent to that invalid Development Application.

57 This pleading was supported by the Applicant’s argument to the effect that in order for there to be a development application that was capable of being validly determined, there must be substantial but not strict compliance with the provisions of s 78A. The argument cites in support the decision of the Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446. (Reference might also have been made to the EP&A Act, s 4(9) and the Interpretation Act 1987, s 80(1) that were applied by Lloyd J Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 at 314).

58 The decision in Remath was concerned with the provisions of the EP&A Act, s 77 as relevantly then in force. (That section was replaced by the EP&A Act, s 78A as currently in force as part of the repeal and re-enactment of Part 4 of the EP&A Act effected by the Environmental Planning and Assessment Act (Amendment) Act 1997 (Act No 152) which came into force on 1 July 1998, from which date all of the statutory requirements for the content of a development application have been sourced in the Regulations).

59 Although Remath was concerned with a development application to carry out designated development and the issue was whether as at the date when the replacement EP&A Act Pt 4 came into force, the absence of the required environmental impact statement in support of the relevant development application meant that that development application had not been relevantly “made” at that transitional date, the separate judgments of Stein JA and Fitzgerald JA contain a detailed analysis of the effect of s 77(3) (including some obiter dicta concerning subsection (3)(c) which was the then source of obligation for a SEE to accompany a development application).

60 The relevant passage from the judgment of Stein JA commences at p 450 and is as follows:

in the prescribed form and manner

manner

I do not see the word "manner" as devoid of content or as mere surplusage. In the context of the various requirements of subs (3) it means the way in which something is done, the mode of action or procedure (see Shorter Oxford English Dictionary). The subsections mentioned mark out how a development application must be made.

There is, in my opinion, no particular distinction between the reference in the subclauses to documents accompanying the development application and the prescribed form in which a development application is to be made. The words accompanied by are used as a matter of convenience because an environmental impact statement (EIS) or species impact statement (SIS) is normally a lengthy document and cannot conveniently be included within the development application. Rather, they accompany it in a separate document.

It is relevant to note that subs (3)(c) provides an alternative for non-designated development. The development application itself may contain the prescribed information and particulars or be accompanied by it.

I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application.

That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgement with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subpars (c), (d) or (d1) or the fee under subcl (e) of s 77(3).

For the purposes of this case, the construction which I favour means that the EIS has to substantially comply with the requirements of the unamended Act prior to the appointed day (1 July 1998) for it to qualify under cl 11 as a development application made but not determined under the unamended Act.

Made in cl 11 of the transitional regulation must mean made in accordance with s 77 of the unamended Act and this includes substantial compliance with s 77(3)(d).

It is common ground that it was not so made in that the development application was not accompanied by an EIS which substantially complied with the unamended Act as at the appointed day.

In my view, a development application cannot be seen as made unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete.

61 The relevant passage from the judgment of Fitzgerald JA at 457 is as follows:

Holiday Villages

is not in respect of designated development

contain ... or ... be accompanied ... such information and particulars as may be prescribed

is in respect of designated development

be accompanied by

accompanied by

made

form

manner

form

made

manner

62 It is apparent from these passages that the judgments given in the Court of Appeal in Remath were founded upon the statutory expression “a development application shall be made in the prescribed form and manner”.

63 The present statutory provisions (the EP&A Act, s 78A(1) and (9) and cl 50 of the Regulation) do not employ the same statutory expression and it may be that the analysis of the statutory expression in Remath is not entirely apposite to the proper interpretation of the current statutory provisions. For example, the present statutory provisions appear to distinguish between (i) a development application; (ii) the information that it must contain (cl 1 of Part 1 of Schedule 1 to the Regulation); and (iii) the documents that must accompany it ( cl 2 of Part 1 of Schedule 1 to the Regulation), particularly when regard is had to the following definition of “development application” contained in the EP&A Act, s 4.

Development application

64 The phrase in s 78A(1) “subject to the regulations” no doubt is intended to qualify in some way the right of a person to make a development application, but whether such qualifications can change what is the essential character of a “development application” in terms of the EP&A Act and if so, to what extent, are more problematical questions. This is especially so in the light of s 78A(9) expressly providing that the regulations “may specify other things that are required to be submitted with a development application”. Prima facie cl 2 of Part 1 of Schedule 1 to the Regulation in specifying the “documents to accompany a development application” (which documents include a SEE (vide par (c)) emanates from the power conferred by s 78A(9). So understood, it appears to be both logical and legitimate to distinguish at least between (i) a development application (including the information that it must contain); and (ii) documents which must accompany a development application.

65 Such an understanding of the current legislation would accord with the judgment of Rath J in Randwick Municipal Council v Total Oil Refineries (Aust) Ltd (1980) 42 LGRA 184 (in respect of town planning legislation that predated the coming into force of the EP&A Act) to the effect that where the relevant Act did not provide for the content of an interim development application (but relevant delegated legislation did so provide) the question raised in that case whether an interim development application had been validly made was to be determined by reference to the Act, and not to the delegated legislation, (at 192) and that where the delegated legislation provided that “an application to carry out interim development shall be made in writing….and shall be accompanied by….” (specified documents) there was a distinction between the application and the accompanying documents (at 193).

66 My observations are not to be regarded as semantic quibbles or hair-splitting. Rather, they derive from the fact that the relevant statutory requirements are prescribed by the Regulation rather than by the Act in circumstances where a development application which is defined by the Act and is the fundamental concept in, and the cornerstone of, the operation of Part 4 of the EP&A Act (“Development assessment”) and as such, it is highly desirable that there should be no doubt as to what qualifies as a development application for the purposes of the EP&A Act.

67 If the foregoing analysis of the current statutory provisions is apt (as I think it is), it would mean that despite the analysis of the earlier statutory provisions undertaken by Stein JA in Remath it would be logical and legitimate to distinguish between the substance and form of the development application (the “substance” being provided by the definition of development application contained in the EP&A Act, s 4(1) and the “form” of the development application being provided by cl 1 of Pt 1 of Schedule 1 to the Regulation and the documents required to accompany the development application (as specified in cl 2 of Pt 1 of Schedule 1 to the Regulation). But more importantly, it would mean that the relevant question to be determined in the present proceedings would be whether something that otherwise would qualify as a development application in terms of the EP&A Act is nonetheless rendered void or a nullity by virtue of the fact that it is not accompanied by the required documents (as in the present case where the sole focus has been on the absence of the required SEE).

68 However, this is not the question that has been debated in the present case where the competing arguments have proceeded upon the common assumption that the absence of the SEE from Development Application 373/2003 relevantly created a breach of the EP&A Act, s 78A(1) and where the only difference between the parties concerns the legal consequences of that breach. Accordingly, I will adopt the same approach, namely by determining the consequence for the development consent granted by the Council in the present case of the absence from the development application of the required SEE.

69 The Applicant submitted that the purpose of a SEE was to alert the consent authority as to the likely environmental impacts of a proposed development and that the consent authority in its consideration of the development application and the public in its consideration of the development application where it (as occurred in the present case) is publicly notified should be informed by the SEE as to the likely environmental impacts of the proposed development. So understood, it was submitted by the Applicant that a SEE is a “fundamental” part of the development application and that the failure to provide a SEE renders invalid the relevant development application.

70 The opposing argument advanced on behalf of the Respondents was that the absence of the SEE did not invalidate the development consent because the discernible legislative purpose of the EP&A Act evinced an intention not to invalidate a development application that is not accompanied by a SEE (or a development consent granted to such a development application). In advancing this argument, the Respondents rely upon the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 where the joint majority judgment at 390 expressly approved the earlier decision of the NSW Court of Appeal in Tasker v Fullwood (1978) 1 NSWLR 20 (which had criticised the continuing use of the “elusive distinction between directory and mandatory statutory requirements”) and propounded the following preferred approach (which essentially restates the approach that had been adopted in Tasker v Fullwood):-

Hatton v Beaumont

Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd

Tasker v Fullwood

National Mutual Fire Insurance Co Ltd v The Commonwealth

TVW Enterprises Ltd v Duffy [No 3]

McRae v Coulton

Australian Broadcasting Corporation v Redmore Pty Ltd

Yates Security Services Pty Ltd v Keating

Johnston v Paspaley Pearls Pty Ltd

Collins Radio Constructions Inc v Day

Wang v Commissioner of Inland Revenue

the language of the relevant provision and the scope and object of the whole statute

Tasker v Fullwood

71 Earlier the joint judgment had recognised the precarious nature of the judicial task of discerning the relevant legislative intent when it said at 388/389:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied [Howard v Bodington (1877) 2 PD 203 at 211, per Lord Penzance]; there is not even a ranking of relevant factors or categories to give guidance on the issue.

72 The same interpretive approach as had been adopted in Tasker v Fullwood was undertaken by the Court of Appeal in Helman leading it to the conclusion that the absence from a development application of a fauna impact statement required by the EP&A Act, s 77(3)(d1) (see s78A(8)(b) of the current Act) invalidated the development consent that had been granted to the relevant development application. Many of the provisions of the EP&A Act concerning public participation in the development assessment processes that were examined by Handley JA in that case related to a development application to carry out designated development. This was because the proposed development was also designated development. Handley JA held at 358 that these public participation provisions were in the nature of “a condition precedent” to any consideration of the development application by the Council and that although the required fauna impact statement had ultimately been lodged with the Council, its reception had “bypassed” the statutory requirements for public participation with the result that there had been “something akin to a denial of natural justice” to potential objectors who had been given no opportunity to consider and make submissions based upon it (at 359).

73 In the subsequent decision of the Court of Appeal in Timbarra Protection Co-alition Inc v Ross Mining NL (1999) 102 LGERA 52, the Court held at 69 that the decision as to whether or not a species impact statement is required under s 77(3)(d1) “plays such a significant role in the legislative scheme that it is appropriate to describe it as an essential condition” to the grant of development consent. In his judgment, the Chief Justice at 71 noted that in Helman Handley JA had applied the principles in Tasker v Fullwood and that that approach “has now been authoritatively affirmed by the High Court in Project Blue Sky”.

74 In marked contrast to the detailed provisions of the EP&A Act and Regulation relating to—(a) the contents of the required environmental impact statement or species impact statement (b) the public notification of a development application accompanied by such a statement; and (c) the rights of objection and appeal vested in the public in respect of such a development application—there are no provisions to be found in the EP&A Act and Regulation in furtherance of, or in consequence of, the requirement made by cl 50 of the Regulation and cl 2(1)(c) of Part 1 of Schedule 1 to the Regulation that a statement of environmental effects must accompany a development application.

75 The obvious consequence of this contrasting position is that there is simply no foundation in the EP&A Act or Regulation such as to justify or support the ultimate inference (of the kind drawn in the Helman and Timbarra cases) that the requirement that a SEE accompany a development application had such a significant role in the legislative scheme as to be properly regarded as an “essential condition” or “essential preliminary” (Timbarra) or “condition precedent” (Helman) to the determination of a development application.

98 Having held at 39 that the application suffered from the defect that the purpose for which the proposed building was to be used had not been properly designated in the development application, Else-Mitchell J proceeded in the following extended passage at 40 to consider the legal effect of the fact that council had nevertheless determined the application:

Minahan v Baldock

Boulos v Broken Hill Theatres Pty Ltd

Randwick MC v Broten

cf. Posner v Collector for Interstate Destitute Persons (Vict.)

Randwick M.C. v Broten

These conclusions of course have no bearing upon the question whether a council is obliged to entertain or give a decision upon an incomplete or defective application; plainly if it refused to do so upon the ground that sufficient plans, maps or particulars had not been furnished, a Court would not compel it to do so by mandamus. But where as here, it has elected to treat as complete and valid and regular an application which is deficient, I think that it cannot subsequently seek to deprive an applicant of the rights, positive or negative which flow from the grant or refusal of any necessary consent for which the application was made.

99 The doctrines of “waiver” and “estoppel” as applied by Else-Mitchell J in these two cases from the 1960s have been more recently authoritatively expounded and developed by the High Court in the separate reasons for judgment given by each of its seven Justices in the Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

100 It is not necessary for me in the present case to delve more deeply into this complex subject, it being sufficient I think to say of the two decisions of Else-Mitchell J, that both the analysis of the then relevant statutory requirements for the making of a building or development application and the application of the doctrines of “waiver” and/or “estoppel” to the conduct of the council in those cases, in determining the applications despite their non-compliance with the relevant statutory requirements, appear to me to have continuing relevance to the current relevant statutory provisions contained in the EP&A Act and the Regulation that are relevant to the present case and to the Council’s conduct in the present case.

101 Of course in the present case it is not the Council that is raising the issue of invalidity of the development consent based upon the absence of the SEE from the development application. Accordingly, and conformably to the exposition of the doctrine of waiver in Verwayen, in the present case any question whether the Council by its conduct has waived the relevant statutory requirement would be dependent upon the prior conclusion that the statutory requirement was not for the wider public benefit (than that element of the public interest of which the Council as the consent authority, is the representative and guardian in terms of the EP&A Act). As my evaluation of the object and purpose of the requirement for a SEE to accompany a development has revealed (see especially at pars 78 and 79) prima facie the Council is capable of waiving compliance with the statutory requirement.

102 For all of the foregoing reasons, I would hold that the development consent granted by the Council is not invalid or void on account of the fact that the relevant development application had not been accompanied by the required SEE.

103 The terms of cl 14 are set out at par 42 of these reasons.

104 On its proper construction, cl 14 imposes limits on the power otherwise conferred by the LEP upon the Council to grant development consent for the subdivision of land within Zone No 1(a), where (as is the present case) that land is not “prime agricultural land”. Such relevant power is conferred by the combined operation of cl 9 as it applies to land Zone No 1(a) and of cl 10. (Each of those clauses is also recited in par 42 of these reasons).

105 The additional limits imposed by cl 14 on the Council’s power to grant development consent for the subdivision are twofold.

106 Firstly, by virtue of the combined operation of subclauses (2) and (3), there is the prohibition on the creation of an allotment having an area of less than 2 hectares where that allotment is to be used for the purposes of a dwelling-house (existing or proposed). Secondly, cl 14(4) qualifies the operation of subdivisions (2) and (3) by prohibiting the grant of such a consent unless the Council “is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice….etc”. (It is to be noted that a separate development consent is required for the erection of a dwelling-house on a lot created in an approved subdivision of land zoned 1(a): vide cl 17 of the LEP.)

107 Accordingly, the overall effect of cl 14 is to limit or restrict the Council’s power to grant development consent to the subdivision of relevantly zoned land by subjecting the stipulation that 2 hectares is the minimum size of the creation of a lot intended to be used for the purpose of a dwelling-house (existing or proposed) to the overriding requirement that the Council be satisfied that the sizes of the proposed lots be sufficient to permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice etc.

108 The Applicant’s allegation that the Council failed to consider cl 14(4) of the LEP blatantly flies in the face of the documentary evidence that I have earlier summarised concerning the manner in which the Council processed the development application. That evidence shows that the principal issue raised by the objectors concerned the relationship between the subject land (proposed to be subdivided into 28 lots with sizes ranging from 6 to 29 hectares and with an average lot size of about 10 hectares) and adjoining or adjacent lands using for agricultural purposes. In raising that issue, at least one of the written objections relied expressly and specifically upon cl 14(4) of the LEP. The evidence also shows that each of the proposed lots having a common boundary with adjoining farm lands incorporated a 150 metre wide buffer from the common bound and that the sizes of the relevant lots ranged between 7 and 21 hectares.

109 The evidence also shows that conditions 11, 35 and 53 of the development consent required the creation of a public positive covenant/restriction on user precluding the erection of a dwelling-house on the buffer lands in deference to the conduct of adjoining/adjacent farming practices (see pars 27 and 28 of these reasons).

110 The documentary evidence clearly establishes that the Council, the developer and the resident objectors were fully aware of the relevant requirements of the LEP and the DCP concerning the proper physical relationship between land proposed for rural/residential subdivision and adjacent and adjoining lands used for agricultural purposes where the relevant requirements accorded some measure of priority or precedence to the uninhibited continuation of normal farming practices.

111 The documentary evidence overwhelmingly supports the inference which I draw, that the Council relevantly considered cl 14(4) of the LEP and was relevantly satisfied that the sizes of the proposed lots would permit the sitings thereon of dwelling houses so that they (ie the dwelling-houses so sited) were unlikely to inhibit or give rise to complaints about normal farming practice.

112 Even if the documentary evidence had been confined (which it was not) to the contents of (i) the development application; and (ii) the development consent; and (iii) the LEP and DCP the fact that the subdivision plan provided for the creation of the buffer 150 m wide from the common boundaries with adjoining farming properties combined with the fact that the development consent imposed the specific conditions requiring the creation of public positive covenants/restrictions or use in respect of those buffers (which facts were further explained by the relevant requirements of the DCP (recited in par 44 of these reasons) would have been sufficient in themselves to justify the drawing of the inference that the Council properly considered cl 14(4) of the LEP and formed the relevant satisfaction that is required by that provision.

113 However, when regard is had to the entire evidence, including the extended processes undertaken by the Council by fully engaging in debate and dialogue with resident objectors in the course of processing the development application, the Applicant’s allegation that the Council failed to consider cl 14(4) of the LEP not only is left unsubstantiated but is shown to be groundless complaint. The present case is entirely distinguishable on its facts from the several decisions of the Court of Appeal relied upon by the Applicant which decisions are collected and discussed in Manly Council v Hortis (2001) 113 LGERA 321. Since these decisions depend upon their own facts there is no need for me to discuss those cases here. They have no real bearing on the present case.

114 For all of the foregoing reasons, I would reject this ground of alleged invalidity of the development consent.

115 The Applicant’s allegation is confined to cl 2.1(c)(iv) of the DCP which is one of a number of “general policies” propounded by cl 2.1 (the terms of which are recited in par 44 of these reasons).

116 The documentary evidence that I have earlier summarised clearly indicates that the issue of the spread of noxious plants and feral animals from the future development of the proposed subdivision was strongly raised as one of the grounds for resident objections. It also indicates that the Council considered the issue that had been raised but concluded that it was not a sufficient reason to refuse the development application and that if an increased risk of noxious weed and feral animal infestation eventuated that problem would be dealt with by the Rural Lands Protection Board.

117 The relevant provision of the DCP is expressed in cl 2.1 as a “general policy” which is aimed at “minimising any adverse effects on adjoining lands”. Moreover, cl 1.2 of the DCP indicates that where a proposed development does not comply with a relevant policy or guideline “it will be considered and may be approved by the Council, depending on the circumstances”. These provisions, by their very terms and nature, do not impose inflexible obligations and clearly fall far short of the type of provision that was considered by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 to provide “a fundamental element in or a focal point of, the decision-making process” (at 387 per Spigelman CJ).

118 The Applicant’s submission that the Council’s reliance upon other legislative controls (eg the Rural Lands Protection Act) indicated a failure of the Council to give real or genuine or proper consideration to the relevant provisions of the DCP, is in my judgment legally unsustainable.

119 I am satisfied on the documentary evidence that the Council relevantly considered the DCP on the issue of the potential risk of the spread of increased noxious weeds and feral animals. The fact that its consideration of this issue included some reliance being reposed in other relevant legislation (eg the Rural Lands Protection Act 1989 and the Noxious Weeds Act 1993) does not derogate from the genuineness or effectiveness of that consideration. The detailed and specialised regimes provided by that legislation necessarily transcends as a matter of practical implementation, the general scope of the EP&A Act in relation to the particular problems of controlling noxious weeds and feral animals that may arise in an approved rural/residential subdivision.

120 Moreover, having regard to the true effect of the DCP proper consideration of it would not dictate or require a result different from that which was yielded by the Council’s consideration of it, even if there be a real risk of the adverse impacts materialising.

121 Finally, I am bound to say that even if the Applicant had substantiated its claim that the Council had failed to consider the DCP cl 2.1(c)(iv), that failure would not, in my judgment, have justified of itself, the setting aside of the Council’s determination granting development consent, because in truth, the particular provision of the DCP is so insignificant that a failure to have considered it could not have materially affected the Council’s decision: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J.

122 Accordingly, I must reject this allegation of invalidity.

123 This allegation is very closely related to the allegation of the Council’s failure to consider the DCP.

124 For many of the same reasons that I have given in rejecting the related allegation I would likewise reject this ground.

125 In particular, I am satisfied on the evidence that the Council did consider these potential impacts of the proposed development, but concluded, as it was entitled to in the exercise of its discretionary planning judgment, that the risks of the increased spread of noxious weeds and feral animals were not of such weight, as to justify refusal of the development application.

126 In so concluding, the Council’s reliance upon the capacity for a remedy to be provided pursuant to the implementation of the specialised legislation that I have referred to, was reasonable in the circumstances and did not betray any failure on the part of the Council to give genuine and real consideration to the relevant matters. The facts of the present case are very far removed from the facts that led the majority of the Court of Appeal in Weal v Bathurst City Council (2000) 111LGERA 181 to conclude that the requisite consideration of the environmental impact (the emission of noise) of the development in that case had not been given by the consent authority resulting in a declaration of invalidity of the development consent that had been granted.

127 Again, I would have concluded, if, contrary to what I have held, the Applicant had substantiated its allegation of relevant failure by the Council to consider the particular aspects of environmental impact, that the legal consequence would not justify setting aside the Council’s determination granting the development consent: see Peko-Wallsend.

128 Accordingly, I would reject this allegation of invalidity.

129 Again, this ground is very closely related to the last mentioned allegation and for the same reasons that I have given in rejecting that ground I would likewise reject the present ground.

130 What clearly emerges from the documentary evidence that I have earlier summarised is the very generous opportunity accorded by the Council to resident objectors to be notified of the proposed development, to submit their written objections, to address the Council in open forum, to accompany the Council on the relevant site inspections and to be similarly involved in the process of the Council’s review of its original determination.

131 In the face of this evidence (and there was no suggestion that the processes were not genuine) for the Applicant to allege that the Council failed to consider the resident objections, does less than justice to the Council’s generous policy and practice in favour of public participation in the development assessment process and to the manner that the Council determined the development application by granting the development consent subject to conditions.

132 Accordingly, I would reject this allegation of invalidity.

E. CONCLUSIONS AND ORDERS

133 For all of the foregoing reasons the Applicant has failed to establish any of its allegations of invalidity of the development consent, and accordingly its class 4 application must be dismissed. Although the question of costs has not been argued, the dismissal of the application in consequence of my rejection of each and every allegation of invalidity justifies an order for dismissal with costs unless the Applicant moves within 7 days for a different costs order.

134 This result means that it is not strictly necessary for me to adjudicate upon the several defences that were raised by the Respondents in the event of the Applicant substantiating its case of invalidity of the development consent.

135 However, there is one aspect of the case concerning the defence based upon the EP&A Act, s 101 which I think I should briefly refer to, in deference to the arguments that were advanced upon a discrete point, which I understand has not previously been judicially decided.

136 The discrete point, I think can be sufficiently isolated by assuming in favour of the Respondents that the protection provided by s 101 had been relevantly enlivened in respect of the Council’s original determination granting development consent. Upon that assumption (which is disputed by the Applicant because of a non-compliance with the Regulation cl 124(1)(c) occurring in the public notice given in respect of the Council’s original determination) the question in dispute is whether the protection conferred by s 101 extends to the development consent granted by the Council pursuant to its review in accordance with the EP&A Act, s 82A of its original determination.

137 The EP&A Act, s 101 is in the following terms:

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

138 It is common ground that the present proceedings were commenced more than three months after the date of the relevant notice that was given in respect of the original development consent. It is also common ground that the present proceedings were commenced within the period of three months from the date of the separate relevant notice that was given in respect of the development consent granted by the Council pursuant to its statutory review under s 82A.

139 The relevant question to be asked in respect of the disputed issue is whether as a matter of construction the reference in s 101 to a “consent” is capable of extending to a consent that has later been reviewed pursuant to s 82A at a time after s 101 has been enlivened to protect the validity of that original consent from legal challenge.

140 The proper construction of s 101 in such circumstances is apt to depend upon the precise and particular outcome of that review having regard to the nature and extent of the power vested in the Council by s 82A. Thus, in a case where that outcome is limited to the variation of a condition or conditions of the consent, it may be assumed that s 101 (properly construed) will apply to the consent “as varied”. But where (as in the present case) the outcome of the review is the grant of development consent, properly construed, s 101 will not apply to that outcome because it has “replaced” the original consent by virtue of s 82A(9). In these circumstances, the protection of the “original” consent is simply not relevant to the “replacement” consent, the two consents being entirely separate entities.

141 On the facts of the present case, the outcome of the statutory review was the grant of the development consent and accordingly, that replacement consent, is not protected by s 101, to the extent that it had been enlivened by virtue of the public notice given in respect of the original development consent. (Whether, despite the apparent factual outcome, a different legal result was achieved by the Council’s review pursuant to s 82A (eg a variation of the conditions of the original consent) has not been debated in the present case where the parties appear to have proceeded on the common assumption that the outcome of the Council’s review was the grant of the development consent).

142 In these circumstances, I would hold that the reference to “consent” in s 101 does not extend to the replacement consent which was the outcome of the Council’s statutory review that was undertaken pursuant to the EP&A Act, s 82A. For these reasons I would not have upheld the Respondents’ s 101 defence in the present case.

143 In leaving the Respondents’ s 101 defence, I would only wish to say that I can see no justification whatsoever for applying the Project Blue Sky approach to the question of any non-compliance with the requirements of the Regulation prescribed in respect of the public notice referred to in s 101. If there is a material non-compliance with requirements of the Regulation (as appears to be conceded in the present case), there is simply no scope for the operation of s 101, because the condition precedent for its operation (the giving of public notice “in accordance with the regulations”) has simply not been fulfilled. In these circumstances, the legislature has not been silent on the question of non-compliance with the relevant statutory requirements. Hence, there is no occasion to apply the Project Blue Sky approach to the construction of s 101 or of cl 124 of the Regulation in order to discern any unstated legislative intent. For this additional reason I would have rejected the Respondents’ s 101 defence.

144 For all of the foregoing reasons, I make the following orders:

24/07/2008 - inserted omitted paragraphs 1-141 - Paragraph(s) 1-141

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Citations

Cranky Rock Road Action Group Inc. v Cowra Shire Council [2005] NSWLEC 674

Most Recent Citation

Botany Bay City Council v Minister for Planning [2006] NSWLEC 194

Cases Citing This Decision

5

Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339

Wollongong City Council v K and M Prodanovski Pty Limited [2012] NSWLEC 107

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Statutory Material Cited

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City of Port Adelaide Enfield v Minister for Transport and Urban Planning [1999] SASC 73

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CITATION:	Cranky Rock Road Action Group Inc. v Cowra Shire Council and Ors. [2005] NSWLEC 674 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Cranky Rock Road Action Group Inc. RESPONDENTS: Cowra Shire Council and Ors.
FILE NUMBER(S):	40106 of 2005
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- challenge to validity of development consent—development application not accompanied by a statement of Environmental Effects—alleged failure by consent authority to consider material considerations under LEP and DCP.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 78A s82A 79C and 101. Environmental Planning and Assessment Regulation 2000 cl 50
CASES CITED:	Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446; Cameron v Lake Macquarie City Council (2000) 107 LGERA 308; City of Port Adelaide Enfield v Minister for Transport and Urban Planning (1999) 73 SASR 22; Commonwealth of Australia v Verwayen (1990) 170 CLR 394; Hall v Minister for Multicultural Affairs (2000) 59 ALD 458; Helman v Byron Shire Council (1995) 87 LGERA 349; Hornsby Shire Council v Devery (1965) 12 LGRA 34; Manly Council v Hortis (2001) 113 LGERA 321; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Randwick Municipal Council v Broten (1964) LGRA 271; Randwick Municipal Council v Total Oil Refineries (Aust) Ltd; Tasker v Fullwood (1978) 1 NSWLR 20· Timbarra Protection Co-alition Inc v Ross Mining NL (1999) 102 LGERA 52; Weal v Bathurst City Council (2000) 111LGERA 181; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	08/09/2005
DATE OF JUDGMENT:	12/09/2005
EX TEMPORE JUDGMENT DATE:	08/16/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, Barrister SOLICITORS Environmental Defender’s Office FIRST RESPONDENT: Ms J Jagot, Barrister THIRD RESPONDENT: Mr I Hemmings, Barrister SOLICITORS: FIRST RESPONDENT Minter Ellison THIRD RESPONDENT W G McNally & Co