EMGA Mitchell McLennan Pty Limited v Byron Shire Council

[2016] NSWLEC 63

Land and Environment Court

New South Wales

Medium Neutral Citation:	EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2016] NSWLEC 63
Hearing dates:	26 May 2016
Date of orders:	31 May 2016
Decision date:	31 May 2016
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [74]
Catchwords:	APPEAL – appeal against Commissioner’s decision on questions of law – community title residential development proposal – site of proposed development is a quarry – quarry resource exhausted – proposed development permitted in the 1(e) Extractive Resources Zone – local environmental plan’s requirement for consistency with objectives of the zone within which the proposed development is located – how test of consistency is to be applied APPEAL – Commissioner held that the proposed development was neutral in respect to the objectives of the zone and thus not consistent with those objectives –finding vitiated by Commissioner’s reasoning process concerning approach to be taken in determining whether or not development was consistent with objectives of the 1(e) Extractive Resources Zone APPEAL – Commissioner also separately held that the proposed development was inconsistent with the objectives of the zone – finding of fact open to Commissioner –– no error of law disclosed in second finding – appeal dismissed APPEAL – no error in primary basis for first instance decision – failure of appeal on primary basis dispositive of appeal – other separate grounds of appeal pleaded – availability of these separate grounds contingent on success on primary ground – no necessity to consider other grounds of appeal
Legislation Cited:	Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan 1995 Land and Environment Court Act 1979 Wingecarribee Local Environmental Plan 1989
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Conservation of North Ocean Shores v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 Dem Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147 EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2015] NSWLEC 1498 Forgall v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Category:	Principal judgment
Parties:	EMGA Mitchell McLennan Pty Limited (Appellant) Byron Shire Council (Respondent)
Representation:	Counsel: Mr A Galasso SC/Mr M Staunton, barrister (Appellant) Mr S Nash, barrister (Respondent)   Solicitors: King & Wood Mallesons (Appellant) Marsdens Law Group (Respondent)
File Number(s):	10047 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The proposed development

The Grounds of appeal

The planning controls

The Council’s refusal of the proposed development

The site

Appeal Ground 1

Introduction

The objectives of 1(e) Extractive Resources Zone

The approach for a cl 9(3) analysis

Reordering the (then) Acting Senior Commissioner’s analysis

The quarry resource

Are there any errors of law in the approach actually taken to cl 9(3)?

The first pleaded defect in the approach taken

The second pleaded defect in the approach taken

The third pleaded defect in the approach taken

Conclusion on Appeal Ground 1

Grounds 2 to 5

Conclusion

Orders

Judgment

Introduction

1. In December 2015, the (then) Acting Senior Commissioner dismissed an appeal (EMGA Mitchell McLennan Pty Limited v Byron Shire Council [2015] NSWLEC 1498) against a decision by Byron Shire Council (the Council) for a residential subdivision development at Broken Head Quarry, off Broken Head Road, Broken Head (the site). The applicant for that development consent (EMGA Mitchell McLennan Pty Limited) (the Appellant) now appeals against that dismissal. It does so on a number of grounds said to raise questions of law. An error with respect to a question of law is the only basis available to appeal against a decision of a Commissioner of the Court (see s 56A of the Land and Environment Court Act 1979 (the Court Act)). Appeals are not available against what are purely findings of fact unless there is no evidence upon which such a finding could be made.

The proposed development

2. The proposed development that was refused was for a community title residential subdivision within the site. In his decision, the (then) Acting Senior Commissioner described the proposal in the following terms, at [2] and [4]:

2   Specifically, the application seeks to subdivide the excavated area of the quarry to provide:

41 residential lots varying is [sic] size from 2005m2 to 6065 sq m.

two neighbourhood lots with areas of 4.18 ha and 3.3ha and comprising common infrastructure such as roads, drainage, stormwater ponds, and

a common property lot containing primarily the vegetated area of approximately 34.5 ha.

3   …

4   The development is situated on both sides of Broken Head Road and serviced primarily by way of a new roundabout on Broken Head Road. Emergency vehicle access is also proposed from Broken Head Road to assist access and evacuation in the event of a bushfire. Water, telecommunications and power are available at the site and it is proposed to connect to the existing sewer at Suffolk Park. The residential component is predominantly limited to the cleared quarry areas of the land, whilst the vegetated remnant will be the community lot.

The Grounds of appeal

3. The Appellant appeals against the dismissal of the development application on five grounds. Those grounds were set out in the appeal papers in the following terms:

1   The Commissioner erred in failing to properly apply the test of consistency with the objectives of the 1(e) zone under the Byron Local Environmental Plan 1998 in that he:

a. at paragraph 25 adopted the test from the Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 but then failed to properly apply it by requiring a positive finding of consistency with each and every paragraph of the objectives;

b.   required at paragraph 38 an association between the proposed development and the “essential feature of the 1(e) zone being extractive industry”; and

c. applied the test of consistency to objectives which, in the light of his finding at [32] had no relevance to the test in clause 9(3) of LEP 1998.

2   The Commissioner erred in failing to properly consider the relevance of the objectives of the RU1 zone under the Byron Local Environmental Plan 2014 by:

a.   applying an incorrect test which required the development to preserve the character anticipated by the RU1 zone;

b.   failing to take into account the agreed purpose of the RU1 zone being no more than the closest approximation of the 1(e) zone in the prior planning instrument; and

c. failed to consider those objectives in the light of his factual finding at [32].

3   The Commissioner erred in imposing a requirement not contained in any of the planning instruments for the development to conform to the likely forms and types of development that are permissible in the RU1 zone under the Byron LEP 2014 or to share characteristics with a site used for extraction of materials being development permissible in the 1(e) zone under the Byron LEP 1998.

4   The Commissioner erred in assessing the impact of the development on threatened species, populations or ecological communities in that he:

a.   assessed the impacts of the proposed development against the site as it would notionally be if it were rehabilitated in accordance with the requirements of the development consent granted for the quarry expansion in DA97/0465 and not against the site in its current condition as an operating quarry;

b.   held that the ecological assessment was inadequate because it did not “have regard to the anticipated rehabilitated state of the quarry”;

c.   made findings not supported by any evidence;

d.   made findings contrary to the agreed evidence of both ecologists that even if the quarry had been fully rehabilitated in accordance with DA97/0465, there would be no additional threatened species, populations or endangered ecological communities in existence on the site which could be affected by the proposed development.

5   The Commissioner erred in regarding himself bound by the requirements of DA97/0465 such that he failed to consider whether the development proposed in the appeal would itself result in a suitable rehabilitated post quarrying landform.

The planning controls

4. The planning controls that required consideration, in the first instance, and are engaged on this appeal, are contained in the local environmental plan that applied at the time of the development application being made to the Council and, potentially, a subsequent (then only draft but now finalised) local environmental plan that had been adopted by the Council based on the Standard Instrument template document.

5. The nature of the zones available to be utilised through the use of the Standard Instrument template to develop the new local environmental plan and the fact that the zoning that existed at the time of the lodgement of the application could not be replicated, with any degree of specificity, in the draft Local Environmental Plan played a role in the proceedings before the (then) Acting Senior Commissioner.

6. The first Local Environmental Plan requiring consideration is the Byron Local Environmental Plan 1988 (the 1988 LEP). Pursuant to the 1988 LEP, the site is zoned 1(e) Extractive Resources Zone, zoning that accommodated the quarry extracting sand from the site. It will be necessary to consider the interrelationship between the objectives of this zone and the proposed development and whether the (then) Acting Senior Commissioner committed any error in his analysis of this as set out in his decision. At this point, it is sufficient to note that, in the Land Use Table set out in cl 9 of the 1988 LEP, not only is the approved quarrying activity permissible but also, amongst the other permissible uses, is that of dwelling houses.

7. The now applicable (but at time of lodgement only draft) Local Environmental Plan is the Byron Local Environmental Plan 2014 (the 2014 LEP). The 2014 LEP contains no specific zoning of the nature of the 1(e) zone in the 1988 LEP.

8. When the Council was developing the 2014 LEP and considering how the various permitted Standard Instrument template zones were to be applied within the Council's Local Government Area, the Council considered that the RU1 General Agriculture Zone provided the best fit to be applied to the site. The zone objectives of the RU1 zone under the 2014 LEP also potentially require consideration on this appeal, as the Appellant contends that, to the extent that the (then) Acting Senior Commissioner had regard to the objectives of that zone, he committed error in the fashion in which he did so.

The Council’s refusal of the proposed development

9. In his decision, the (then) Acting Senior Commissioner described the grounds advanced by the Council to him to support dismissal of the appeal, at [3], in the following terms:

The Council maintains that the subdivision application should be refused because the development is:

inconsistent with the zone objectives,

in breach of the minimum allotment size,

inconsistent with the existing and future desired character,

likely to cause impact on threatened species, populations or ecological communities, and

likely to have an unacceptable and cumulative impact on the Aboriginal cultural significance of Taylors Lake.

10. The Appellant makes no complaint as to the adequacy of this description.

The site

11. The (then) Acting Senior Commissioner’s description of the site, at [6] to [10], was in the following terms:

6   The site comprises eight adjoining allotments as follows:

Lot 1 DP 123302 (27.70 ha);

Lot 1 DP 245836 (0.01 ha);

Lot 1 DP 184443 (22.72 ha);

Lot 1 DP 245605 (0.06 ha);

Lot 2 DP 245836 (1.05 ha);

Lot 3 DP 245836 (0.01 ha);

Lot 5 DP 245836 (0.42 ha); and

Lot 6 DP 245836 (0.35 ha) Broken Head Road, Suffolk Park.

7   The whole site has an area of 52.32 ha, with 24.61 ha on the eastern side of Broken Head Road and 27.71 ha on the western side of Broken head.

8   The site presently contains the Broken Head Quarry where approximately 22 ha has been disturbed by existing and past quarrying activities. The quarry contains a series of ponds, stockpiled sand and gravel, machinery sheds, and a weighbridge. The area outside of the quarry remains heavily vegetated.

9   The site is located to the south of Suffolk Park where development is characterised by rural residential and hinterland housing at low densities.

10   An application to extend the life of the Broken Head Quarry was the subject to a Commission of Inquiry (Carleton 1998) that was completed on 23 July 1998 and which recommended the expansion of the quarry to the Minister in October 1998, subject to conditions. The application was accompanied by an Environmental Impact Statement (1997 EIS) and a Species Impact Statement (1997 SIS).

Appeal Ground 1

Introduction

12. The 1988 LEP sets out a precise requirement, in cl 9(3), mandating the satisfaction of the consent authority of the consistency of any development proposal with the objectives of the zone within which it is sought to be approved. The provisions of cl 9(3) are in the following terms:

Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

13. Before the (then) Acting Senior Commissioner, the question of consistency with the zone objectives of the 1988 LEP was the primary matter required to be considered in those proceedings. He was required to form a positive opinion that the development was consistent with the objectives of the one the extractive resources signed in order to satisfy the necessary threshold question for the granting of development consent (Conservation of North Ocean Shores v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 – dealing with the same provision at [83])(Conservation of North Ocean Shores). Failure to reach such a positive opinion must lead to the result that the cl 9(3) precondition is not satisfied and thus it is not permitted to move on to any further consideration of the proposed development (including those mandated for consideration by s 79C of the Environmental Planning and Assessment Act 1979 (the EP & A Act)).

The objectives of 1(e) Extractive Resources Zone

14. In this instance, the zone objectives required to be considered are those of the 1(e) Extractive Resources Zone. Those zone objectives were in the following terms:

Zone No 1(e) Extractive Resources Zone

1 Objectives of zone

The objectives are:

(a) to identify and ensure sound management of land which has an extractive or mining industry potential,

(b) to ensure that development on land within the zone is compatible with development for extractive industry and does not adversely affect the potential of any existing or future development of the land for extractive industry,

(c) to include land within the zone necessary to provide a buffer area around extractive resources,

(d) to require a management plan for quarries which designate that part of the property which is the operational portion of the quarry and that part which forms the buffer area. (The Management Plan shall also assess the environmental impact of noise and dust, pollution, visual impact, conflict with adjoining land uses, traffic generation and alternative methods of extraction).

The approach for a cl 9(3) analysis

15. The test of consistency with these objectives is a threshold test that must be satisfied before moving on to consider other matters requiring assessment.

16. This was expressly acknowledged by the (then) Acting Senior Commissioner as the approach to be taken when he said, at [22]:

Clause 9(3) of LEP 1998 imposes a barrier to the granting of consent unless the proposed development is consistent with the objectives of the 1(e) zone. A finding of inconsistency with any of the objectives must result in the development application being refused and the appeal dismissed. A finding of consistency with the relevant objectives allows for the merit assessment of the application.

17. The (then) Acting Senior Commissioner then commenced by addressing the alternative approaches to this task to be derived from earlier consideration of this test. The alternatives he considered were:

• The approach set out by Pearlman CJ in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21; or

• The approach set out by Bignold J in Dem Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147.

18. To understand part of the complaint made by the Appellant concerning this process, it is first desirable to set out these two tests.

19. The approach derived from Schaffer Corporation comes from [27] of her Honour’s decision, where she said (as was quoted by the (then) Acting Senior Commissioner at [23]):

27. The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

20. The (then) Acting Senior Commissioner, at [24] of his decision, quoted [74] and [75] of Dem Gillespies. It is unnecessary to reproduce these paragraphs in full. The approach derived from Dem Gillespies comes from the final sentence of [74] of his Honour’s decision, where he said:

However, the primary dictionary meaning of “compatible” (the Macquarie Dictionary: capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word “consistent” in its context in cl 12(3)(b) of the LEP.

21. The (then) Acting Senior Commissioner explained, at [25], why he proposed to apply the Schaffer approach. He said:

For the purposes of these proceedings, I have adopted the approach of Pearlman CJ in Schaffer as this approach has been more widely adopted and used since 1992 and no compelling reason was given for the Court to rely on the different approach in DemGillespies.

22. Neither the Appellant nor the Council cavils with this conclusion.

Reordering the (then) Acting Senior Commissioner’s analysis

23. It is necessary to reorder various elements of the decision of the (then) Acting Senior Commissioner to explain the way I understand him to have approached the requirements of cl 9(3) of the 1988 LEP. This reordering does not affect the adequacy of the matters contained in the (then) Acting Senior Commissioner’s judgment.

24. However, the reordering does facilitate understanding how I have reached the conclusion that the (then) Acting Senior Commissioner can be seen to have reached two differing conclusions in answering the cl 9(3) question – one of his conclusions (at [34]) being one founded on a Dem Gillespies approach with the other (at [38]) being one founded on a Schaffer approach.

The quarry resource

25. The (then) Acting Senior Commissioner undertook an assessment of the evidence concerning the availability of any further extractive resource potentially able to be won from the quarry. The judgement deals with this topic at [26] to [32] in the following terms:

... Evidence on the extent of extractive material remaining on the site was provided by Mr Alan Dyer, a geologist and industrial mineralogist and Mr John Ward, the General Manager of the Broken Head Quarry.

Mr Dyer relied on the approval of the extractive industry in 1997 to determine whether the extractive resource was exhausted. The main parameters are:

the eastern side has an expiry date after 17 years (7 May 2016),

a maximum extraction to 13.5 AHD for the eastern quarry,

a maximum extraction to 32 AHD for the western quarry,

extraction sequencing as outlined in the Environmental Impact Statement

no closer than 50 m from the western side of the quarry.

Mr Dyer also relied on seven new boreholes (BH1 – BH7) within the central and northern sections of the western quarry to identify the likely resource remaining in the base of the quarry. His conclusions were that generally, and in the absence of further detailed drilling logs, additional resources are likely to exist within the western quarry floor as SLR Consulting Australia Pty Ltd (SLR) GPS readings indicate that the quarry floor levels vary between approximately 39m and 45m, some 7m to 13m above the maximum extraction depth of 32m AHD. Mr Dyer further states that the area in and around BH1, within the western quarry, have been exhausted of premium quality sand. The area around BH2 is also exhausted of clean sand and is now predominantly sand with traces silty clay and undesirable silty clay at depth. The area in and around BH4 displays up to 4m of fine sand overlying high plasticity silty clay. If fine sand was required to supply market demands, then this material could be mined. The SLR site observations identify varying degrees of dark grey and orange silt and clay layers in the exposed faces in this area and this material is too variable to be economically worked and processed. Similar to the area around BH 4; BH5 and the surrounding area shows silty clay near the surface and sand with silt and clay traces beneath. SLR observations on site again showed sand resource in this area but with the deeper cuts were of poorer quality than the remaining site resource.

Mr Dyer states that there is not enough available geological information or survey data to be able to provide opinion on the remaining resource, if any, within the eastern quarry.

Mr Ward was provided with the report of Mr Dyer and stated that since the assessment carried out by Mr Dyer; further excavation was undertaken in the area of the south east bench, BH3, BH6 and BH7. Mr Ward states that at the final stages of extraction in the south east bench area, some pockets of material containing very high clay content were encountered which would cause the resulting sand to fail specification. A quantity of this material was processed and failed quality testing. There remains approximately 1,000 tonnes of unsuitable but extracted material in this area which will not be processed and will be used as fill in the final rehabilitation and land forming process. All of the resource identified around BH3 has been extracted and the area around BH6 has now been fully extracted except for a small area to the north west where the organic material encountered contained elevated organic material which makes it unsuitable for concrete or asphalt sand. The remainder of the material extracted which contained elevated organic material is suitable only for rehabilitating areas of the quarry to be vegetated in the future. The results around BH7 reflect the extremely patchy nature of the resource at the northern end of the quarry, which has been experienced over many years although some small patches of suitable material can still be found. Mr Ward states that experience has shown that no large viable volume of material exists and as such no further extraction will be undertaken in this area because of the poor and patchy quality of material and because of the difficulties in extraction.

Mr Ward also explained in his oral evidence that plant previously associated with the extraction has been sold and employees reduced because of the unviable nature of the quarry.

Considering the evidence of Mr Dyer and Mr Ward, I accept that even if there is some material that is capable of being extracted, this material is either of unacceptable quality or unviable to extract. In coming to this conclusion, I am mindful that the evidence of the council was based solely on the evidence of Mr Ward and not on any independent investigations. The evidence of Mr Ward was not available until the hearing. Where any disagreement existed, I am satisfied that it was clarified by Mr Ward to the extent that his conclusions on the lack of material or the viability to extract the resource should be accepted.

26. Planning evidence was given before the (then) Acting Senior Commissioner by Mr Mike Svikis for the Council and Mr Paul Mitchell for the Appellant. The (then) Acting Senior Commissioner earlier observed at the commencement of [26]:

Much of the evidence from Mr Svikis and Mr Mitchell focussed on whether the extractive resource was exhausted or whether there were further resources to be extracted. This was considered central to the question of consistency with the 1(e) zone objectives by Mr Svikis and Mr Mitchell.

27. The (then) Acting Senior Commissioner had also earlier noted, in [20], that:

While there is disagreement with Mr Svikis about the proposal's consistency with the zone objectives while the quarry is operating, Mr Mitchell and Mr Svikis agree that, assuming the extractive resources are exhausted, the proposal has a neutral relationship with the zone objectives; being that it neither promotes nor hinders them.

28. The (then) Acting Senior Commissioner set out, at [33] and [34], a finding on the primary issue of consistency with the relevant zone objectives. This was in the following terms:

On this basis, the agreed position of Mr Svikis and Mr Mitchell is that the proposal has a neutral relationship with the zone objectives; being that it neither promotes nor hinders them. While Mr Svikis and Mr Mitchell agree on the relationship between the development and the 1(e) objectives; their agreement answer does not question [sic] posed by cl 9(3); that being 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”.

Even in a situation where the material to be extracted has been exhausted; this situation does not change the question asked by cl 9(3). There must be a positive finding that “the carrying out of the development is consistent with the objectives of the zone”. Without such a finding, the appeal must fail. A finding that “the proposal has a neutral relationship with the zone objectives being that it neither promotes nor hinders them” must be seen as a negative response to the question asked by cl 9(3) because the carrying out of the development is notconsistent with the objectives of the zone.

29. That which is set out in [34] effectively constitutes a first negative finding against the Appellant on the fundamental preliminary question posed by cl 9(3) of the 1988 LEP. However, from the terms of the language in the final sentence of [34], this conclusion is obviously one founded on a Dem Gillespies approach – an approach expressly disavowed by the (then) Acting Senior Commissioner at [25].

30. Although as quoted above, the (then) Acting Senior Commissioner set out what amounted to his first finding on the primary issue of consistency with the relevant zone objectives, he then proceeded to set out, at [35] to [37], a further, analytical process by which he reached a second, differently expressed conclusion on the cl 9(3) test compared to that which he had set out in [34]. This further analysis reads:

In my view, and if the objectives are read individually and collectively, the intent is to identify land with extractive industry potential (Objective (a)), ensure that any development on the land is compatible with an extractive industry (Objective (b)), provide buffer areas around the extractive industry zone (Objective (c)), and to provide a Management Plan to address any environmental impacts of the extractive industry zone (Objective (d)). The clear focus of the 1(e) zone is on finding and protecting land for extractive industries and also ensuring other land uses are protected from any environmental impacts from that extractive industry.

While “dwellings-houses” are a permissible use in the 1(e) zone, it does not follow that any development that contains “dwelling-houses” should be approved. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClellan CJ makes the following relevant comments:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2)1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council(1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council(1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

In the words used in BGP Properties,dwelling – houses could be approved, “in some form”. For example, a dwelling could be approved and be consistent with the zone objectives, if it was not associated with an extractive industry but sufficiently distant that the dwelling-house did not affect the extractive resource (Objective (b)), had a sufficient buffer area (Objective (c)), and there was a Management Plan to address any environmental impacts of the extractive industry (Objective (d)). Similarly, a dwelling could be approved to operate in conjunction with an extractive industry. Based on these examples, the fact that dwelling-houses are a permissible use in the 1(e) zone does not necessarily support the proposed development.

31. Following this further analysis, he set out a second, differently expressed conclusion concerning the interrelationship between this factual future position and how that related to the requirements of cl 9(3). This was set out in [38] and [39] of his judgement in the following terms:

I am satisfied that the proposed development is inconsistent with the objectives of the 1(e) zone, in that the proposed development does not provide any association with the essential feature of the 1(e) zone, being extractive industry.

On this basis, the application must be refused and the appeal dismissed.

32. Unlike his conclusion at [34] (being one founded on a Dem Gillespies approach), it is obvious from the language used in [38] (“inconsistent” reflecting the “antipathetic” of Schaffer) that this, second negative conclusion is founded on a Schaffer approach – the approach determined by the (then) Acting Senior Commissioner to be the correct one (for the reasons set out at (17) to (21) above).

33. Without a finding of consistency at this point, the Appellant’s proposal for development cannot move to consideration of the other matters pressed against it on the appeal to the (then) Acting Senior Commissioner or to any further merit assessment under the EP&A Act.

Are there any errors of law in the approach actually taken to cl 9(3)?

The first pleaded defect in the approach taken

34. The first pleaded defect in the approach taken by the (then) Acting Senior Commissioner is that, at paragraph 25, he adopted the test from Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 but then failed to properly apply it by requiring a positive finding of consistency with each and every paragraph of the objectives.

35. It is unnecessary to address this proposition in detail or to set out the basis said to support it raised by the Appellant and the submissions on behalf of the Council in resisting it.

36. I have earlier explained why, on a proper reading of the decision of the (then) Acting Senior Commissioner, it is clear that:

1. He adopted the Schaffer test – at [25];

2. He failed to apply it in reaching his first cl 9(3) conclusion at [34]; but

3. He correctly applied it in reaching his second cl 9(3) conclusion at [38].

37. On this point, Mr Nash, counsel for the Council, submitted that, at (6) of his written submissions that:

A finding that the Proposal was “neutral” with the zone objectives prevented the Court from lawfully granting development consent, such a finding would not achieve the requisite level of satisfaction under cl 9(3) viz that there be a “positive” finding of consistency

38. The error in this submission is that the positive opinion required by Conservation of North Ocean Shores is one to be formed by adopting the approach in Schaffer. As I have set out, for the first of the (then) Acting Senior Commissioner's findings (at [35]), this was a finding made based on an incorrect approach. Although what was expressed was a positive opinion, it was one founded on an incorrect approach to what was required by Schaffer as demonstrating consistency.

39. It follows that the conclusion at [34] is to be disregarded. However, the conclusion at [38] remains and is considered in the context of the second pleaded defect dealt with immediately below.

40. Ground 1(a) fails.

The second pleaded defect in the approach taken

41. The second pleaded defect in the approach taken by the (then) Acting Senior Commissioner is that he required at paragraph 38 an association between the proposed development and the “essential feature of the 1(e) zone being extractive industry”.

42. I have earlier set out the various elements of the (then) Acting Senior Commissioner’s decision including, relevant to Ground 1(b), [37] and [38] of his reasons.

43. The Appellant's written submissions on this point were set out at (15) to (19). Those submissions were also addressed by Mr Galasso, senior counsel for the Appellant, in his oral submissions to the same effect. The relevant portion of the written submissions were in the following terms:

At [37] the Acting Senior Commissioner acknowledged that it was possible to have dwelling houses that were not associated with an extractive industry but at [38], contrary to his findings at [37] he found that the development “was inconsistent with the objectives of the zone because development does not provide any association with the essential feature of the 1(e) zone, being extractive industry”.

At [38] the Acting Senior Commissioner made a further error of law by substituting his own test for that required by clause 9(3). At [38] the Acting Senior Commissioner found:

I am satisfied that the proposed development is inconsistent with the objectives of the 1(e) zone, in that the proposed development does not provide any association with the essential feature of the 1(e) zone, being extractive industry.

In doing so the Acting Senior Commissioner imposed a requirement, not in fact required by the objectives of the 1(e) zone, that the proposed development provide an association with the essential feature of the 1(e) zone, being extractive industry: Ground 1(b). The Acting Senior Commissioner again misdirected himself and or substituted his own test for the test required by clause 9(3) and in doing so he fell into error (Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; 172 LGERA 338).

The Acting Senior Commissioner's imposition of this requirement for an association with extractive industry meant that he failed to take into account an important and distinguishing feature of the 1(e) zone, namely that it was the only non-urban zone which was unconstrained in terms of both minimum lot size and the minimum requirements for erection of dwelling houses. Dwelling houses are permissible in the 1(e) zone without the constraints which apply in all other zones in which they are permissible.

The Acting Senior Commissioner's imposition of the requirement for association with extractive industry also led him to an impermissible finding as to the likely character anticipated under LEP 1988 at para [60] of the Judgement and his conclusion that a residential subdivision does not “share(s) any characteristics with a site used for extraction of material”.

44. Mr Nash's written submissions on this point were contained in paragraphs (10) through to (13). Given my conclusion on this point, it is unnecessary to set out Mr Nash's contingent submission at (14) and (15) of his written submissions.

The Appellant's next complaint is that the Acting Senior Commissioner impermissibly imposed a requirement that the Proposal provide ‘an association with’ the essential feature of the 1(e) zone, being extractive industry (AS par [17]) in circumstances where, for example dwelling houses were permissible in the 1(e) zone (AS par [15] and [18]).

What this ground of appeal overlooks is that the zone objectives and list of permissible uses are mutually exclusive considerations (Abret v Wingecarribee Shire Council (2011) 180 LGERA 343 at pars [42] and [43]).

The 1(e) zone objectives anticipate that the type of development which that zone recognises is development for the purposes of extractive industries. The objectives do not refer, at all, to residential purposes. The Acting Senior Commissioner's observation at Judgement [38] is therefore not surprising. That observation did not, contrary to AS par [16], involve error. The Acting Senior Commissioner found, as a matter of fact, that although the Proposal was, strictly speaking, permissible in the 1(e) zone, since the Proposal did not meet, and was not positively consistent with, the objectives of that zone development consent must be refused. The examples which the Acting Senior Commissioner proffered at Judgement [37] in which a dwelling may be approved on land zoned 1(e) are logical, and therefore in resolving the concurrent, albeit mutually exclusive, operation of the 1(e) zone objectives and the permissibility of dwelling houses, the Court was correct in requiring, in these circumstances, that absent a connection or association between the proposed dwellings and an extractive industry, the zone objectives could not positively be satisfied under cl 9(3) the Byron Local Environmental Plan 1988.

Accordingly, having asked himself the correct question, as posed by cl 9(3) of the Byron Local Environmental Plan 1988, the Acting Senior Commissioner answered the question adversely to the Appellant. Again, the Appellant's complaint, in truth, therefore relates to the Acting Senior Commissioner's answer to the (correctly stated) question. This answer involves a pure question of fact and is unassailable under s 56A of the Land and Environment Court Act 1979.

45. Mr Galasso said, during his oral submissions, that the fact that the resource was exhausted rendered the factual considerations undertaken by the (then) Acting Senior Commissioner at [37] redundant.

46. Whilst it is reasonable to expect that the exhaustion of the resource would be an element engaged in a subsequent merit assessment, it does not act as a barrier to, or a reason to set aside, the analysis undertaken at that point in his judgement by the (then) Acting Senior Commissioner. The absence of resource does not set aside the necessity for satisfaction of the cl 9(3) test. Satisfaction of this test is the necessary precursor to proceeding to the subsequent stages of a merit assessment.

45. Rather than setting aside the absence of resource, the (then) Acting Senior Commissioner has proceeded, in a comparatively brief fashion given his earlier analysis, to undertake a factual assessment, on a proper Schaffer basis, as set out in the paragraphs sought to be impugned.

46. The analysis undertaken is one which leads to a factual conclusion, one self-evidently based on, and expressed as arising from, evidence that was properly before him. Although expressed in brief terms, it cannot be said that there was no evidence that would permit those conclusions to be drawn or that those conclusions could not be founded on the evidence that was already discussed.

47. Consistent with Mr Nash’s submissions, that which is set out in the (then) Acting Senior Commissioner’s second conclusion, one properly founded on a Schaffer consideration, comprises solely a factual finding, based on the evidence, where such findings are not amenable to appeal in proceedings such as these. The existence of an earlier invalid conclusion cannot vitiate a subsequent valid one (as is the conclusion at [38]).

48. This being the position; Ground 1(b) fails.

The third pleaded defect in the approach taken

51. The third pleaded defect in the approach taken by the (then) Acting Senior Commissioner is that he applied the test of consistency to objectives which, in the light of his finding at [32] had no relevance to the test in clause 9(3) of LEP 1998.

52. I have earlier set out the acceptance by the (then) Acting Senior Commissioner of the expert quarry resource evidence and the agreed conclusion of town planning experts based on the quarry resource evidence.

53. The tenor of Mr Galasso’s submissions on this aspect of Ground 1 can be seen in (20) to (23) of the Appellant’s written submissions:

Although clause 9(3) of the LEP speaks of reaching of a level of satisfaction with respect to the zone objectives, properly construed that process is not an absolute one.

In such circumstances the prescription in clause 9(3) is only as to those objectives as are of relevance to the development application: Abret v Wingecarribee Shire Council (2011) 180 LGERA 343 at [42]. As set out by Preston J in Forgall v Greater Taree City Council (2015) 209 LGERA 160 at [17] and [78], the enabling power is with respect to the zone objectives “of relevance to the particular case”.

The zone objectives in the 1(e) zone are set out above. Without exception, they are concerned with the extractive resource.

Having found that the resource was depleted (Judgement [32]) those objectives, and all of them, thereby no longer had any relevance to the circumstances of the exercise in cl.9(3). Consideration of them at all was therefore erroneous: Ground 1(c). ……….. And a fortiori, by then requiring a positive finding of satisfaction of them led the Acting Senior Commissioner to compound the error.

54. Mr Nash’s written submissions on this point were in the following terms:

This ground of appeal is misconceived. To suggest that the Court should not have considered any of the 1(e) zone objectives is erroneous (per AS par [23]). Had the Acting Senior Commissioner decided not to consider the 1(e) zone objectives, he would have contravened cl 9(3) of the Byron Local Environmental Plan 1988 and thus fallen into legal error.

This ground of appeal highlights the fundamental problem with this appeal and indeed the Appellant's development application for the Proposal.

What the Appellant is saying is that because there may no longer be any resource worthy or capable of extraction from the Land, that Byron Shire Council (and the Court on appeal) should discard the 1(e) zone and its objectives. If it be the case, in truth, that the Land is no longer suitable for extractive industry purposes, it then falls upon policy-makers to appropriately rezone the Land. From the Appellant's perspective, a rezoning which permitted residential subdivision of the type proposed in its development application for the Proposal, and which would enable zone objectives to be ‘positively satisfied’ for the purposes of cl 9(3) of the Byron Local Environmental Plan 1988, would be necessary.

But unless and until that change of policy occurs, the mandate in cl 9(3) of the Byron Local Environmental Plan 1988 continues to apply to the Proposal. The Land and Environment Court is not a policymaker (which the Acting Senior Commissioner properly observed, with respect, at Judgement [52]). The Appellant is therefore unable to use these proceedings to impugn the zoning of the Land, or to seek a ‘de facto’ rezoning of the Land, and thus cast away the applicable zone objectives, even if the present zoning of the Land may not allegedly be appropriate. Thus the 1(e) zone objectives were, and will always remain, relevant to any development application in respect of the Land for so long as the Land is zoned accordingly, and the cl 9(3) mandate must always be observed. The Acting Senior Commissioner found that all of the 1(e) zone objectives were relevant to the Proposal, and his findings of fact to that effect are unassailable under section 56A of the Land and Environment Court Act 1979.

55. I have set out above the competing written submissions on this third element of the Appellant’s first Ground of appeal. The Appellant’s position is, I am satisfied, fundamentally misconceived. There are two bases underpinning this conclusion.

56. First, the suggestion that the objectives are no longer relevant (as the resource has been found to be exhausted) does not enable them to be disregarded and the cl 9(3) test not undertaken.

57. The suggestion that Abret v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 (Abret) at [42] provides a basis for doing so misinterprets what was being dealt with in those proceedings. It is clear, from proper contextual reading ([7] coupled with [41] and [42]) that what was being dealt with were not he objectives of the zone within which the development was propose but those objectives of the Wingecarribee Local Environmental Plan 1989 (the Wingecarribee LEP) itself as set out in cl 2(2) of that plan. Although the provision in the Wingecarribee LEP that is the equivalent to cl 9(3) of the 1988 LEP engaged by these proceedings, that clause was not what was considered in [42] of Abret.

58. The suggestion that Forgall v Greater Taree City Council [2015] NSWLEC 61; 209 LGERA 160 (Forgall) provides a basis for setting aside the mandated cl 9(3) test misinterprets the nature of the test that the local environmental plan engaged in Forgall set for assessment of an application being made for consent for a project requiring assessment under the Greater Taree Local Environmental Plan 1995 (the Taree LEP).

59. It is unnecessary to set out the relevant consistency clause in the Taree LEP. It is, however, pertinent to observe that the Taree LEP’s relevant clause requires that a proposed development must be consistent with one or more of the objectives of zone within which the development is proposed (see Forgall at [13]). In those circumstances, objectives that are clearly irrelevant to a development proposal can be set aside whilst the proposal is tested for its consistency or otherwise with any objectives that are relevant to the proposal.

60. This is to be contrasted with the terms of cl 9(3) of the 1988 LEP requiring consideration in these proceedings. Here, the requirement for consistency is one necessary with each and every objective for the 1(e) zone. The invocation of consistency is not selective, it is exhaustive.

61. Second, it should not be concluded that the zone, itself, should be regarded as being “dead” and having no functional work to do. The contrary is the position. As was dealt with in the submissions on the Appellant’s appeal ground concerning ecological issues (dealt with in the (then) Acting Senior Commissioner's decision at [66] to [73]), the current development consent for the quarry continues to have work to do. This arises as a consequence of the rehabilitation requirements in the development consent – rehabilitation requirements which remain to be satisfied.

62. Whilst the documents that supported an earlier application to the Council clearly foreshadowed the possibility of some future land use that might not necessitate the rehabilitation being carried out as required, nonetheless consideration of any such setting aside of the rehabilitation requirements would only come to be considered on the merits of a future development application. This could only occur after it had been demonstrated to be consistent with the zone objectives and thus have passed through the cl 9(3) gateway.

63. As Mr Nash correctly submitted, changes in zoning, or changes in the objectives for a zone, are policy matters to be dealt with in a process that is distinctly different from and not engaged with a development proposal such as this.

64. For the reasons set out above, Ground 1(c) must also fail.

65. Although the Appellant may well consider the outcome to be unfair (given the exhaustion of the sand resource in the quarry), this outcome is a mandated consequence of the second finding of the (then) Acting Senior Commissioner and reasoning in support of it at [35] to [37].

Conclusion on Appeal Ground 1

66. The position, in these appeal proceedings, is that, if the Appellant is unable to demonstrate any error on a question of law in the (then) Acting Senior Commissioner’s process in reaching a valid cl 9(3) conclusion that the proposal did not satisfy that provision, as he did, the Appellant cannot succeed in these proceedings.

67. On the basis of the analysis set out above, I am satisfied that the complaints about the (then) Acting Senior Commissioner's decision are without foundation as to his second (valid) finding of facts, at [37] – based on a correct Schaffer approach – and, as a consequence, the appeal must be dismissed.

Grounds 2 to 5

68. As the finding of the (then) Acting Senior Commissioner that the cl 9(3) test was not satisfied, it was, strictly speaking, unnecessary for the (then) Acting Senior Commissioner to proceed to deal with the other matters that had been raised by the Council as bases to refuse the appeal against the Council's decision to decline to give development consent for the proposed community title housing development.

69. However, as he had done so, finding on a number of further grounds that the appeal should be refused, the Appellant in these appeal proceedings has turned to addressing those additional bases, seeking to demonstrate appealable errors of law in each of those findings.

70. Given that I have held that the validly reached second conclusion by the (then) Acting Senior Commissioner on the primary question posed by cl 9(3) of the 1988 LEP was not infected with error, that conclusion is sufficient to dispose of this appeal and render it unnecessary to deal with the matters pressed by the Appellant in Grounds 2 to 5 in the Summons commencing the appeal.

Conclusion

71. I have concluded that the second finding of fact, at [38], by the (then) Acting Senior Commissioner that the proposed development was inconsistent with the zone objectives for the 1(e) Extractive Resources Zone was not infected by legal error.

72. As this was a finding open to the (then) Acting Senior Commissioner on the facts, this is determinative of the outcome of this appeal. It is, therefore, not necessary to proceed to deal with the remaining grounds of appeal as, even if the Appellant were to be successful on all of them, such success would be Pyrrhic in light of the outcome of the failure of the first ground of appeal. The appeal must therefore be dismissed.

73. Costs in appeals such as these ordinarily follow the event and there is nothing in these proceedings that would displace that presumption.

Orders

74. It therefore follows that the orders of the Court are:

1. The appeal is dismissed; and

2. The Appellant is to pay the Respondent's costs of this appeal.

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Decision last updated: 31 May 2016