Falkiner v Director-General of Planning NSW

[2002] NSWLEC 159

Reported Decision: (2002) 125 LGERA 138

Land and Environment Court

of New South Wales

CITATION:

Falkiner v Director-General of Planning NSW and Ors [2002] NSWLEC 159

PARTIES:

APPLICANT
Brereton Skerrett Falkiner

FIRST RESPONDENT
Director-General of Planning NSW

SECOND RESPONDENT
Yarrowlumla Shire Council

THIRD RESPONDENT
Minister for Planning

FILE NUMBER(S):

40048 of 2002

CORAM:

Pain J

KEY ISSUES:

Judicial Review :- whether Yarrowlumla Local Environmental Plan 2002 is void - power of the Director-General to impose conditions on Council during making of LEP - scope of regime under Part 3 of the Environmental Planning and Assessment Act 1979 - whether conditions imposed by the Director-General were s 65(2) conditions under the EP&A Act - whether s 65(2) conditions can be subsequently altered - whether draft local environmental plan was submitted within the meaning of s 64 of the EP&A Act - whether s 74 applies to the repeal and replacement of LEPs - whether an environmental study under s 57 was required - whether the Director-General must make a determination as to whether an environmental study is required under s 74 - whether denial of procedural fairness - whether failure to take relevant considerations into account - whether failure to take into account relevant considerations - whether improper purpose - whether manifest unreasonableness

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 54, s 57, s 62, s 64, s 65, s 66, s 67, s 68, s 69, s 70, s 74
Interpretation Act 1987 s 48(1)
Yarrowlumla Local Environmental Plan 1993
Yarrowlumla Local Environmental Plan 2002

CASES CITED:

Attorney General (NSW) v Quin (1990) 170 CLR 1;
Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317;
Curac v Shoalhaven City Council and Anor (1993) 81 LGERA 124;
Helman v Byron Shire Council (1995) 87 LGERA 349;
John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning & Ors (1999) 106 LGERA 150;
Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598;
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355;
Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429;
Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78;
WD Marketing Services Limited v G Kibble & Anor (Cripps J, NSWLEC, 1 November 1989, unreported)

DATES OF HEARING:

31/05/2002, 17/06/2002, 25/07/2002

DATE OF JUDGMENT:

09/26/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Stevens QC
with Mr P Clay (barrister)
SOLICITORS
McIntosh McPhillamy & Co

FIRST AND THIRD RESPONDENTS
Ms J Jagot (barrister)
SOLICITORS
Planning NSW

SECOND RESPONDENT
Mr J Robson (barrister)
SOLICITORS
Minter Ellison

JUDGMENT:

IN THE LAND AND Matter No: 40048 of 2002
ENVIRONMENT COURT Coram: Pain J
OF NEW SOUTH WALES Decision Date: 26 September 2002.

BRERETON SKERRETT FALKINER

Applicant

v

DIRECTOR-GENERAL OF PLANNING NSW

First Respondent

YARROWLUMLA SHIRE COUNCIL

Second Respondent

MINISTER FOR PLANNING

Third Respondent

JUDGMENT

1. These are Class 4 proceedings commenced by the Applicant against the Director-General of Planning NSW (the DG), Yarrowlumla Shire Council (the Council) and the Minister for Planning (the Minister) seeking a declaration that the Yarrowlumla Local Environmental Plan 2002 (YLEP 2002) is void and of no effect. It is mainly the actions of the DG which are in issue. The DG and the Minister were represented by the same counsel and made joint submissions. The Minister was joined as a necessary party in the course of the proceedings because LEP 2002 was made by him on 12 June 2002, while the proceedings were on foot. The Second Respondent's submissions largely supported and adopted those of the First and Third Respondents.

Relevant sections of the EP&A Act

2. The Applicant's arguments raise a number of issues relating to the making of an LEP under Pt 3 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The relevant sections are set out in the following paragraphs.

3. Under s 54(1) "A Council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area".

4. Section 57 requires a Council to prepare an environmental study of the land to which a draft LEP is intended to apply. A subsequent environmental planning instrument can amend in whole or in part an existing environmental planning instrument: s 74(1). "Amend" is defined to include "altered, varied or repealed": s 74(3). Section 74(2)(b) provides that if a subsequent environmental planning instrument is an LEP, s 57 "shall not apply, unless the Director-General directs to the contrary". Thus, the DG can direct that an environmental study must be prepared for a subsequent environmental planning instrument.

5. Section 62 requires the Council, in the preparation of a draft LEP, to consult with various public authorities and bodies, including any adjoining Councils. Section 64 requires the Council, when a draft LEP has been prepared, to submit a copy to the DG together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to s 62.

6. Section 65 enables the DG to issue a certificate certifying that a draft plan may be publicly exhibited in accordance with s 66. Section 65(2) provides that a certificate may be issued subject to a condition that the draft LEP be amended in a specified manner before it is publicly exhibited. If a certificate is not issued the DG is required to return the draft plan to the Council giving reasons why the certificate was not issued and directing the Council to amend the draft plan as appropriate: s 65(3).

7. Section 66 sets out requirements for the public exhibition of a draft LEP. Section 67 enables any person to make written submissions to the council with respect to the provisions of a draft LEP publicly exhibited under s 66. Section 68 relates to the consideration of submissions. The Council may alter the draft LEP and may do so whether or not the alteration relates to submissions or matters raised at any public hearing: see s 68(3) and s 68(3A).

8. If the Council amends a draft LEP in accordance with s 68(3) it may (not must) give public notice of and publicly exhibit the amended draft plan. If it does so, s 66 and s 67 apply to the further exhibition "but not so as to require a further certificate under s 65". The Council must then submit, inter alia, to the DG under s 68(4) details of submissions received on the draft plan and any alterations made to the plan pursuant to s 68(3).

9. Section 69 then requires the DG to furnish a report to the Minister in relation to various matters concerning the draft plan.

10. Section 70 enables the Minister to make the LEP after considering the DG's report, either in accordance with the draft submitted by the Council or in accordance with that draft with such alterations as the Minister thinks fit relating to any matter which, in the opinion of the Minister, is of significance for state or regional environmental planning.

Facts

11. The Applicant is the owner of certain land known as "Foxlow", Bungendore (the Applicant's land) which is within the local government area of the Council.

12. On 23 February 1999 the Council resolved to prepare a draft Local Environmental Plan (draft YLEP 1999) pursuant to s 54 of the EP&A Act. Draft YLEP 1999 was intended to repeal the Yarrowlumla Local Environmental Plan 1993 (YLEP 1993) and specifically address the implementation of the Environmental Planning and Assessment (Amendment) Act 1997, current land use provisions and the definitions applying to land use, the existing boundary definition of and planning provisions applying to the 7(e) & 7(g) Environmental Protection zones, and the existing boundary definition applying to the village of Bungendore.

13. On 19 March 1999, in accordance with s 54(4) of the EP&A Act, the Council informed the DG by letter of its decision to prepare a draft local environmental plan. The letter enclosed the reports that were submitted to the Council meetings of 9 February and 23 February 1999 and, in part, contains the following statement:

(f) Need for Environmental Study: Given the proposed draft plan addresses the requirements of the EP&A (Amendment) Act 1997 and will incorporate minor adjustment to existing zone boundaries Council considers that an environmental study is not necessary.

14. On or about 29 March 1999 the DG, by her delegate, advised the Council that a local environmental study under s 57 of the EP&A Act was not required in relation to draft YLEP 1999. In the s 54 report, the delegate concluded "An environmental study is not necessary considering the minor nature of the proposal".

15. Draft YLEP 1999 became draft Yarrowlumla Local Environmental Plan 2000 (draft YLEP 2000). A copy was submitted to the DG and a certificate under s 65 of the EP&A Act was issued to the Council by the delegate of the DG on 24 May 2000. From 14 June to 1 September 2000 the Council exhibited draft YLEP 2000 pursuant to s 66 of the EP&A Act.

16. After the exhibition of draft YLEP 2000 the Council determined that it would amend draft YLEP 2000 in a number of respects. The change made that was of most concern to the Applicant was the introduction of a limit of five on the number of small lots able to be created by subdivision in the 1(a) General Rural Zone.

17. In February 2001 the Council resolved to adopt the amended draft YLEP 2000, which was then known as draft YLEP 2001, and to publicly exhibit it. On or about 2 April 2001 the Council forwarded draft YLEP 2001 to the DG's delegate noting changes had been made and noting the DG's view that a certificate under s 65 of the EP&A Act would be necessary to enable the public exhibition of draft YLEP 2001 pursuant to s 66 of the EP&A Act.

18. No s 65 certificate was issued at that time and there were further negotiations between the Council and officers of the Department of Urban Affairs and Planning (DUAP)(as it was then known) about draft YLEP 2001 and planning issues in the Shire generally, as is evident in correspondence and file notes provided to the Court.

19. The DG's delegate wrote to the Council on 24 September 2001, referring to a meeting between Councillors and Council staff on 11 September 2001 and stated "The Department will await the draft plan to be submitted addressing the above items, and will issue a s 65 certificate promptly".

20. In or about September 2001 the Council amended draft YLEP 2001. On 26 September 2001 the Council resolved to:

(a) adopt draft YLEP 2001 as amended for the purpose of public exhibition;

(b) submit draft YLEP 2001 as amended to the DG's delegate for the issue of a certificate under s 65 EP&A Act;

(c) upon certification place draft YLEP 2001 on exhibition for two months.

21. On 27 September 2001 the Council forwarded draft YLEP 2001 to the DG's delegate and requested that the DG issue a certificate under s 65 of the EP&A Act to enable public exhibition of draft YLEP 2001 pursuant to s 66 of the EP&A Act.

22. The DG considered the amended draft YLEP 2001 and a s 64 report of 3 October 2001 that was prepared by a departmental officer and recommended that a s 65 certificate be issued. The report stated under the heading "Why is the plan suitable for certification?":

The plan reflects the policy intent of Council, although as mentioned, there were a number of outstanding concerns to be resolved with state agencies. The certificate will also allow DUAP to determine the public response to the plan in its current form. DUAP has required Council to undertake a strategic overview of rural land use in the shire to be completed as a priority and this will raise and address further unresolved issues. To some extent the scope of this plan is limited and did not address all issues of land use in the shire.

23. On or about 3 October 2001 the DG, by her delegate, issued a certificate under s 65 of the EP&A Act in respect of draft YLEP 2001. A key issue in this matter is whether this s 65 certificate was issued subject to three conditions made pursuant to s 65(2) of the EP&A Act. The s 65 certificate, which had no conditions on the face of the document, was accompanied by a letter dated 3 October 2001 from the DG's delegate to the Council, which stated:

Please find a certificate enclosed allowing Council to exhibit the draft plan. This certificate has been issued subject to the following conditions:

1. That Council undertake a strategic review of the Rural 1(a) zone, considering the minimum subdivision size and the appropriateness of retaining concessional allotments,
2. That Council review the request of NPWS regarding the identification of Environmental

[sic] Sensitive Areas, and

3. That Council revisit site specific rezonings at a later date.

24. On 11 December 2001 the Applicant's solicitors wrote to the Council's solicitors requesting that the period of exhibition be held open until after the strategic review had been completed and allowing for a further period of exhibition. The Council's solicitors responded on 17 December 2001 advising that the DG did not require the strategic review to be carried out before the draft YLEP 2001 was made and therefore the exhibition period would not be extended.

25. The Council's solicitors wrote to the DG's delegate on 18 December 2001 requesting that an "unconditional" s 65 certificate be issued as a "question of law has arisen with regard to the validity of the s 65 certificate issued 3 October 2001". In the same letter, the Council noted that it was pursuing the relevant matters "in parallel with" the finalisation of the amended draft YLEP 2001.

26. On 18 December 2001 the DG by her delegate issued a further identical certificate under s 65 of the EP&A Act in respect of draft YLEP 2001. A letter sent with the s 65 certificate dated 18 December 2001 from the DG's delegate to the Council stated in part:

The certificate is issued unconditionally, as Council has undertaken to address and comply with the three matters contained in my previous letter dated 3 October 2001. Fulfilment of these matters will be further assessed when Council submits the final plan.

27. A report by a council officer dated 12 February 2002, was prepared for the Council in respect of the amended draft LEP (now draft YLEP 2002) and an overall review of planning issues for the Yarrowlumla Shire. The report noted that the amended draft LEP was an update of YLEP 1993, not a complete review. The report provided details in respect of the strategic review. In so doing, the report noted further that the strategic review previously agreed with the Department needed to be broadened and concluded that:

On the assumption that Council resolves to adopt draft YLEP 2001 at its meeting of 26 February 2002 the way is clear for a total review of the development opportunities and constraints controlling rural, rural residential and urban development.

On 26 February 2002 the Council resolved to adopt the amended draft LEP and refer it to Planning NSW (previously DUAP) for the preparation of a s 69 report to the Minister and subsequent gazettal. On 1 March 2002 the Council referred draft YLEP 2002 to Planning NSW.

28. These Class 4 proceedings were commenced by the Applicant on 18 March 2002. The DG recommended to the Minister that he make the draft YLEP 2002 and this was done on 12 June 2002.

The Part 3 Regime under the EP&A Act

29. The Applicant argues that the scheme of Part 3 of the EP&A Act requires that there be one certificate under s 65 and one compulsory exhibition under 66. In this case, over the whole LEP remaking process there were three s 65 certificates issued and two public exhibition periods. The Applicant's submissions in support of this argument were somewhat unclear but, as I understand the Applicant's argument, if there are changes to a draft LEP after it has been publicly advertised the Council can then consider whether the amendments fall under s 68(3). Section 68(3B) is then applied to determine whether further advertising is required. The s 69 report by the DG and the process up to the time of the Minister making the LEP under s 70 is a clear sequential regime and, by implication, linear also. This means that one step must be followed by another with no "feedback loop" in the process. The only exception is if the original draft LEP is rejected under s 65(3) by the DG, there is then an opportunity for the draft LEP to be resubmitted. If there is a rejection of the draft LEP at that stage by the DG, the Council need not necessarily go back to the beginning of the process under Pt 3.

30. The Respondents argue that the process in Part 3 is sequential but not necessarily linear. There is a series of "loop-backs" in the process. Accordingly, it is not necessary to return to the beginning of the process every time a decision is made to amend the draft LEP. Nor is there any obligation to only have one s 65 certificate and one public exhibition under s 66. The Act does not rule out expressly or implicitly that there can be more than one of these processes or certificates.

APPLICANT'S POINTS OF CLAIM

31. The Applicant's Further Amended Points of Claim raise a number of legal issues. In the Applicant's "Summary of Proposition with reference to Further Amended Points of Claim", filed in Court on 25 July 2002, the bases of the Applicant's case are made much clearer. The consideration of the Applicant's claims which follow are drawn largely from the summary document, with some amendment for greater clarity. There are eight grounds of challenge, grouped under four headings.

Conditions on s 65 certificate

32. Ground 1: There is no power to issue a Certificate under Section 65(1) subject to a condition unless that is a condition in accordance with Section 65(2) or alternatively, pursuant to Section 66(1).

Applicant's argument

33. The Applicant argued firstly that the s 65 certificates issued on 30 October 2001 and 18 December 2001 were subject to conditions which could only be imposed pursuant to s 65(2) or s 66(1) and had to be complied with before the public exhibition took place. A condition imposed under s 65(2) need not be on the face of the certificate, it can also be in an accompanying letter, the letter of 3 October 2001 or 18 December 2001 in this case. The Applicant relies on John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning & Ors (1999) 106 LGERA 150 in support of this proposition, arguing that in that case Cowdroy J envisaged conditions could be in a certificate or accompanying letter. If the Court holds that the conditions under s 65(2) must be on the face of the certificate the Applicant argues in the alternative that there is power, in terms of s 66(1), to issue conditions relating to the entitlement to exhibit the draft LEP which are not on the face of the certificate. Alternatively, the Applicant argues there has been an error of law because the decision-maker intended the certificate to issue with conditions but they did not appear on the face of the certificate.

34. Alternatively, the Applicant argued that the decision to issue the s 65 certificate dated 3 October 2001 was not authorised by s 65 of the EP&A Act, because the power to impose conditions on a certificate under s 65(2) of the EP&A Act is limited to the power to impose a condition requiring that a draft LEP be amended prior to public exhibition of the draft LEP. The DG does not have a general power to impose conditions which fall outside s 65(2). The conditions purporting to be imposed on the s 65 certificate dated 3 October 2001 were conditions which did not concern the amendment of the draft LEP prior to public exhibition. Therefore the s 65 certificate dated 3 October is void and of no effect. This argument was similarly put in relation to the 18 December 2001 s 65 certificate. The 18 December 2001 certificate was issued subject to, expressly or by implication, a condition set out in the letter from the delegate of the DG to the Council dated 18 December 2001 that the Council undertake to address and comply with the three matters contained in the letter from the delegate of the DG to the Council dated 3 October 2001, set out above at par 23. For the same reasons the certificate is also void and of no effect.

Respondents' argument

35. The DG argues that for the Applicant to be correct the Court must conclude that s 65(2) by implication excludes the DG from exercising the power under s 65(1) conditional upon a requirement which is not directed to amendment of a draft plan prior to exhibition. A conditional exercise of power is an ordinary incident to any statutory function to grant or confer an approval or authority. No express words in s 65 exclude the ordinary incident of that power. Exclusion of the power to impose other conditions cannot be implied from the presence of s 65(2).

36. The Applicant's argument is that as the legislature has expressly empowered only one type of condition, it must be taken to have excluded all other powers of that type, an application of the expressio unius principle. This principle should be applied in very limited circumstances and, given the subject matter, scope and objects of the EP&A Act, there is no warrant for its application in the context of s 65(2). It is appropriate from an administrative and planning perspective for the DG, as an ordinary incident of the power to issue or withhold a certificate under s 65(1), to be able to consider and address more than the amendment of a draft plan prior to its public exhibition. It makes good sense for the DG to be in a position to deal with planning issues which interrelate with, but do not form part of, a draft plan.

37. The DG is entitled, in determining whether to issue a s 65 certificate, to consider all matters within the subject matter, scope and objects of the EP&A Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 41. Provided the DG's requirements are within the subject matter, scope and objects of the EP&A Act the DG is empowered to issue a certificate subject to a limitation which does not involve an amendment to the draft plan itself.

38. Whether the conditions were s 65(2) conditions can be determined by comparing what the DG's delegate said with the terms of s 65(2). If the former is not within the latter it follows that the conditions are not s 65(2) conditions at all. The conditions relate to some of the matters agreed at a meeting on 11 September 2001 between officers of the Council and the delegate of the DG. Of the seven matters identified at the 11 September 2001 meeting only two involved an amendment to the draft LEP. In both cases the amendments were made prior to the exhibition held under s 66, indeed prior to the letter of 3 October 2001, and therefore did not need to be made into s 65(2) conditions. The balance of the matters did not require amendment to the draft LEP prior to public exhibition. The fact that the DG did not intend those matters to be addressed by an amendment of the draft LEP is clear from the letter of 3 October 2001, the letter of 18 December 2001 and the issue of the certificates themselves. Properly construed there were no s 65(2) conditions imposed on the s 65 certificates.

39. It is obvious that the "conditions" referred to in the letter of 3 October 2001 were matters which the DG wished the Council to take into account in due course, but not as part of the exhibition process. They are concerned with general planning matters that were collateral to the exhibition of the current draft LEP.

Finding on Ground 1

40. The scheme of Pt 3 and the EP&A Act in general allows flexibility in relation to the exercise of the power of the DG under the EP&A Act to deal with general planning matters in parallel with, but connected to, the making of draft LEPs. The objects of the EP&A Act include "to promote the sharing of the responsibility for environmental planning between the different levels of government in the State": s 5(b) of the EP&A Act.

41. I do not think in these circumstances the three "conditions" referred to in the letter dated 3 October 2001 from the DG's delegate to the Council are conditions under s 65(2) of the EP&A Act. The terminology used in the 3 October 2001 letter mirrors the language of part of s 65(2) and the timing of the letter also implies the application of s 65(2), yet it is clearly not intended that the "conditions" are to be imposed under that section. It may be that for greater clarity in the future the DG or her delegate should identify which conditions are imposed pursuant to s 65(2) so that there can be no confusion about the nature of such conditions. In this case, the conditions do not relate to matters concerning the amendment of the draft LEP before it is placed on public exhibition pursuant to s 66, as s 65(2) states. This is clear from the various reports of meetings between DUAP and the Council leading up to the 3 October 2001 letter. For example, in relation to the strategic review, there are various documents indicating that the strategic review did not need to be completed before public exhibition. In a departmental memorandum dated 18 September 2001 which discusses a meeting with Council held on 11 September 2001, a DUAP officer states:

An important outcome of the meeting with Council, is the requirement for Council to prioritise its planning work and to undertake a rural land study after the draft plan has been made prior to pursuing any further rezonings or SEPP 1's.

42. Furthermore, I agree with the Respondents' submission that the DG is able to impose "conditions" or, more accurately, requirements on a council in relation to general planning matters, as has occurred in this case, at the same time as an LEP is being amended. That is, the DG can impose requirements other than conditions requiring the plan to be amended in a specified manner before public exhibition. Provided the DG is acting within the scope of matters under the EP&A Act this is within the power available to the DG under the Act. The conditions stated in the letter of 3 October 2001 are clearly within this category. The DG can arguably impose requirements on the Council before an LEP is made final by the Minister that are within the scope and power of the EP&A Act at any stage before that LEP is made final. Such requirements can certainly be contained in letters from the DG's delegate to the Council. This finding, that such requirements can be contained in a letter, is not directly related to conditions imposed under s 65(2), which are requirements to amend a draft LEP. I do not need to decide if such conditions should be on the face of the s 65 certificate or can also be in an accompanying letter, but the latter is not expressly or impliedly prevented by the EP&A Act and was envisaged by Cowdroy J in John Brown Lenton.

43. In relation to whether the 18 December 2001 s 65 certificate was validly issued, my conclusions are the same, namely, the matters referred to in the letter dated 18 December from the DG's delegate are not s 65(2) conditions for the reasons stated above. The Applicant must fail on ground 1. The DG does have power to issue a certificate under s 65(1) subject to conditions other than under s 65(2) provided these are within the scope and purposes of the EP&A Act.

44. Because of my decision that the conditions imposed by the DG's delegate are valid, I do not need to decide if they are also permitted by s 66(1) which the Applicant submitted was an alternative source of power to s 65(2) for conditions concerning a s 65 certificate. I simply note that my reading of s 66(1) is that it is not such an alternative source of power.

45. Ground 2: The conditions of the Certificate of 3 October were not able to be thereafter varied or waived by the Director General otherwise than by compliance with the provisions of Part 3 of the Act.

The DG acted beyond power in issuing the s 65 certificate dated 18 December 2001 which purported to modify or amend the conditions imposed on the s 65 certificate dated 3 October 2001, an exercise of power not authorised by the EP&A Act. The Applicant argued that the DG had no power to amend an earlier condition. The only way to deal with conditions is for the Council to resubmit the draft LEP with a request to alter the conditions before a public exhibition has been held.

Respondents' argument

46. The DG argues that there was no variation or waiver as the conditions were never intended to be, and could not be addressed by, any amendment to the draft LEP. The conditions were always intended to be addressed by the taking of other steps by the Council, separate from the draft LEP.

47. This ground does not arise in any event if the conditions are not s 65(2) conditions.

Finding on Ground 2

48. In relation to ground 2, I consider the DG has broad powers under the EP&A Act, and these powers can include the modification of a condition(s), or more accurately in this case requirements, validly imposed under Pt 3. The conditions in question are not s 65(2) conditions and I have held that they are lawful. Further, the DG can act unilaterally in amending her requirements, it is not necessary that the Council resubmit the LEP and seek a variation to the conditions as the Applicant argued. Accordingly, the Applicant fails on this ground.

49. Ground 3: Insofar as the conditions of 3 October were not satisfied prior to the public exhibition of the Plan in accordance with Section 66(1), the public exhibition was a nullity.

The Council placed draft YLEP 2001 on public exhibition without complying with the conditions imposed on the s 65 certificate dated 3 October 2001 (relying on the statement in the accompanying letter that "The certificate has been issued subject to the following conditions." ). This was a breach of s 66(1) of the EP&A Act. Because the public exhibition has not been carried out as prescribed by the Act there is a failure to comply with mandatory provisions in the Act, which vitiates the process ( Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355). The Applicant argued the letter of 3 October 2001 makes clear that the three "conditions" were to be executed to enable updating of the plan before the public exhibition.

50. Further, or in the alternative, the Council placed draft YLEP 2001 on public exhibition without complying with the conditions imposed on the s 65 certificate dated 18 December 2001 in breach of s 66(1) of the EP&A Act. The purported public exhibition of the draft YLEP is thereby a nullity.

Respondents' argument

51. The DG argues that if the conditions were not s 65(2) conditions then this ground must fail.

52. Even if the conditions were s 65(2) conditions there is no authority that says these must be complied with i.e. that they are mandatory. The authorities such as Helman v Byron Shire Council (1995) 87 LGERA 349, Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 or Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 did not concern a failure to comply with a condition said to have been imposed on a s 65 certificate. They related to the actions of councils with respect to the public, namely the mandatory requirements of a valid public notice and public exhibition. The statute does not intend that a failure to comply with a s 65 certificate condition invalidates the exhibition under s 66. It is not the same as invalidity as a consequence of a misleading notice or public exhibition which is defective in substance which have the consequence of depriving the public of their statutory rights. If the matters in s 65(2) conditions are not addressed, no person is deprived of an opportunity to comment in these circumstances. If the matter remains relevant after the public exhibition the DG has a further opportunity to address the matter under s 69. In other words the defect is curable through the process itself.

Finding on Ground 3

53. In relation to ground 3, as the conditions imposed are not s 65(2) conditions they do not need to be complied with before public exhibition. The Applicant must fail in relation to this ground given my finding in relation to ground 1.

54. The Respondents argued that s 65(2) conditions are not mandatory. It is not necessary that I decide this matter given my earlier conclusion, so I would simply observe that the nature of s 65(2) suggests they ought to be mandatory.

55. Lack of power

Ground 4: The Director General had no power to issue a new Section 65 Certificate on 18 December as she had not received a draft LEP in accordance with Section 65.

(i) In its application for the s 65 certificate on 18 December 2001 the Council did not submit a copy of the draft plan. This is in breach of s 64 of the EP&A Act. The DG purported to issue the s 65 certificate in breach of s 65 without having received a copy of the precise draft LEP the subject of the certificate and thereby committed an error of law.

56. (ii) A further argument was put by the Applicant which did not reflect precisely the issue in ground 4. The DG had exercised the power under s 65 in respect of draft YLEP 2001 by the issue of the s 65 certificate dated 3 October 2001 and did not have the power to issue the s 65 certificate dated 18 December 2001 in respect of draft YLEP 2001. The DG was functus officio at that point. The s 65 certificate dated 18 December 2001 is thereby void.

Respondents' argument

57. (i) The DG argued that Part 3 (except for the minimum period of exhibition) and s 65(1) contains no temporal requirements. The only precondition to the issue of a s 65 certificate is receipt of a draft LEP under s 64, which occurred. The amended draft LEP was lodged with the DG on 27 September 2001. The DG had received the amended draft LEP under s 64 by 18 December 2001 and the requirements of the statute had therefore been satisfied in relation to the pre-condition for issuing the s 65(2) certificate. No useful purpose could be served by the Council resubmitting that document under s 64 with the letter of 18 December 2001 requesting a further s 65 certificate.

58. (ii) The Applicant would only have the functus officio argument available to it if it argued that the issue of the certificate on 3 October 2001 exhausted the power of the DG under s 65(1) so that it was not available to be exercised again. The DG argued that the s 65 power may be exercised from time to time, relying on s 48(1) of the Interpretation Act 1987, Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598. There is nothing in the EP&A Act that is inconsistent with this proposition.

Finding on Ground 4

59. I agree with the Respondents' submissions on ground 4. In relation to (i), clearly the Act was complied with in relation to the supply of the relevant draft LEP. The Act does not have specific time requirements which need to be met, so that it is sufficient that it has been generally complied with, namely a copy of the relevant draft LEP has been supplied within the necessary period, in this case by 18 December 2001.

60. In relation to (ii), I consider the s 65 power can be exercised from time to time, consistent with the Interpretation Act 1987. It is a well established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute. In my view, the power of the DG or her delegate to issue a s 65 certificate is not constrained in the statute so as to be irrevocable. As French J states in Sloane at 443:

Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken.

61. I also agree with the Respondents' argument and examples cited in written submissions at pp 42 and 43 that the scheme of Pt 3 of the EP&A Act allows for steps to be carried out on more than one occasion provided the sequence overall is in accordance with Pt 3. Further, a factor supporting this conclusion is that the statutory decision to issue a s 65 certificate does not give rise to appeal rights by any party such that unilateral variation of the decision would deprive them of their rights. Accordingly, the Applicant must fail on this ground.

62. Ground 5: Section 74 did not apply to the Amended Draft LEP with the consequence that an environmental study was required under Section 57.

Ground 6: The Director-General was under a duty to consider and determine whether the Amended Draft LEP ought to be subject to a direction that an environmental study be required which the Director-General failed to do.

Ground 5

63. The Applicant argued the Council is required by s 57 of the EP&A Act to prepare an environmental study of the land to which draft YLEP 2001 applied as this included provisions relating to concessional allotments, "1995 holdings" and dam sizes and catchment areas not considered in relation to the draft YLEP 1999. No environmental study under s 57 of the EP&A Act has been prepared for draft YLEP 2001.

64. Furthermore, the Applicant argued that YLEP 2002 is more extensive than YLEP 1993. Relying on obiter remarks of Cripps J in WD Marketing Services Ltd v G Kibble & Anor (Cripps J, NSWLEC, 1 November 1989, unreported) at 5 - 6, the Applicant argued the essential purpose of an amendment is to make planning controls easier to understand and to allow greater flexibility in administration. The Applicant argued YLEP 2002 is something significantly greater than that; it repeals, replaces and supplements the prior regime. Although YLEP 1993 is being "altered, varied or repealed", YLEP 2002 goes further than that by the supplementation of the 1993 LEP. The Applicant therefore argued that under s 57 of the EP&A Act an environmental study was required to be undertaken before the draft LEP was submitted to the DG. Because YLEP 2002 was prepared without an environmental study being undertaken it is invalid.

65. The Applicant argued that s 74 requires a characterisation of what is intended to be done by a subsequent environmental planning instrument. This is clear from the words "may be amended" in s 74(1) and s 74(3) which identifies that amended "includes altered, varied or repealed". The Applicant argued that not all amendments fall within s 74. If all amendments fell within s 74 then s 57 would have no work to do. As most areas in NSW have been covered by an LEP (or equivalent instrument) for the past 20 years all planning instruments will be a "subsequent environmental planning instrument". Thus, in order to give s 57 some part to play, "amended" in s 74 must be given a more narrow meaning. However, the Applicant did recognise that the terms "altered, varied or repealed" should be given their ordinary meaning.

66. The Applicant also argued, presumably in the alternative, that if s 74 did apply the DG was under a duty to consider whether or not an environmental study ought be prepared. The Applicant contends that the Pt 3 process was recommenced on 27 September 2001, the date of the lodgement of the amended draft YLEP 1999 under s 64 of the EP&A Act. This required the DG to make a fresh determination as to whether to make a direction requiring an environmental study under s 57. The DG had decided no such study was necessary in March 1999 in relation to the unamended draft YLEP 1999. No determination has been made by the DG excusing the Council from the preparation of an environmental study for draft YLEP 2001.

Respondents' argument
Ground 5

67. Section 57 has to be read in the light of s 74 and as part of the scheme of Pt 3 of the EP&A Act. When construed as a whole, no environmental study is required unless the DG directs to the contrary where a draft LEP wholly repeals, replaces and supplements an existing LEP as in this case.

68. The Respondents argued that amended is defined broadly as "altered, varied or repealed" in s 74(3). The YLEP 2002 is a "subsequent environmental planning instrument" because it amends YLEP 1993, State Environmental Planning Policy No 4 and State Environmental Planning Policy No 60: see YLEP 2002, cl 5. The Respondents submit WD Marketing Services is highly relevant. The Applicant in that case had submitted that s 74 does not authorise a repeal of one instrument and its replacement by another new instrument. This argument was specifically rejected by Cripps J.

Ground 6

69. The DG argued that she is not subject to a duty to make any determination in respect of an environmental study under s 74(2)(b). Section 74 confers a discretionary, not mandatory, power to direct contrary to the ordinary situation (that no environmental study is required). The DG made a decision not to direct to the contrary under s 74 as detailed in the report of the DG's delegate dated 29 March 1999.

70. The lodgement of the amended draft LEP under s 64 did not recommence the process under Pt 3. No new resolution under s 54 was necessary, no further consultation under s 64 was required and no new s 65 certificate was required. The issue of the s 65 certificate dated 18 December 2001 was a matter of abundant caution only. However, even if a new s 65 certificate was required to authorise the further public exhibition under s 66, the decision whether or not to issue a new s 65 certificate did not trigger any "duty" to make a decision under s 74, i.e. whether to direct that an environmental study be prepared.

Finding on Grounds 5 and 6

71. Clause 57 must be read together with cl 74. Clause 74 does clearly apply in this case. WD Marketing Services confirms this. In WD Marketing Services his Honour held that under s 74 a "subsequent environmental planning instrument" could repeal an environmental planning instrument in whole or in part. In my opinion, s 74 is clear on its face. Section 74(1) provides that "An environmental planning instrument may be amended [which includes altered, varied or repealed: s 74(3)] in whole or in part by a subsequent environmental instrument". Section 74 should not be given the narrow meaning that the Applicant contends. On the contrary, it is clearly of wide import. The draft YLEP 2001 and YLEP 2002 in this case (subsequent environmental planning instruments) amend an environmental planning instrument within the meaning of s 74.

72. I note the Applicant's reliance on the comments in WD Marketing Services to the effect that the essential purpose of an amendment is to make planning controls easier to understand and to allow greater flexibility in administration. The comments the Applicant refers to were made by his Honour in relation to considering the difference between an amendment and a repeal in the context of that case. Cripps J clearly contemplated that an environmental planning instrument could be repealed in whole or in part by a subsequent environmental planning instrument. The Applicant's argument is of no force in the present case, in my view.

73. Further, in relation to ground 6 it is clear that the DG has a discretion, not a duty, under s 74 as to whether to require an environmental study. This is clear from the wording of s 74(2)(b), s 57 "shall not apply, unless the Director-General directs to the contrary."

74. Was there a duty to consider again whether an environmental study was needed in relation to draft YLEP 2001, that decision having been made already in the negative in relation to draft YLEP 1999 by the DG's delegate on or about 29 March 1999? Because I accept the Respondent's submission that the Pt 3 process does not recommence every time there is an amendment to a draft LEP, I do not think that every time there is an amendment, as is clearly envisaged can occur in the course of making an LEP, there is an obligation to reconsider the need for an environmental study. There has been no breach of Pt 3 in these circumstances by the DG. The Applicant also fails in relation to grounds 5 and 6. It may be that there is a point where an amendment so substantially changes a draft LEP that there may be an argument available that the DG has an obligation to reconsider if an environmental study is necessary, but that is not the fact in this case.

75. Denial of Procedural Fairness

Ground 7: That which was exhibited was not in conformity with that which was proposed, such that persons did not have an opportunity to make submissions in conformity with that intended, i.e.

a. strategic review;
b. insufficient notice of the proposed loss of property rights presently existing or capable of being pursued in respect of prospective development applications for land subdivision.

Applicant's argument

76. The Applicant argued that the DG by her delegate represented to the Council and the Applicant (as a member of the public not as an individual) that the draft YLEP 2001 would not be made until such time as the strategic review referred to in par 22 and 23 was carried out. This is clear from the 3 October 2001 letter sent by the DG's delegate to the Council and the 18 December 2001 letter from the DG's delegate to the Council.

77. It is a reasonable and legitimate expectation of the Applicant as the owner of land the subject of the strategic review that he would be able to participate in the strategic review by making submissions. It is a reasonable and legitimate expectation that the draft YLEP would not be made until such time as the strategic review is conducted. It is a denial of natural justice for the draft YLEP to be made prior to the strategic review.

78. The Applicant argued that public consultation is fundamental to the effectiveness of Pt 3 of the EP&A Act and has important consequences in relation to the following three aspects:

(i) So that the Department can determine the scope of the draft LEP and therefore whether a local environmental study is required;

(ii) Disclosure to public authorities and other councils;

(iii) Persons in the relevant area that may be affected by the LEP at the time of public exhibition.

79. The Applicant argued that in order for procedural fairness to have been afforded it must be clear to persons what they are evaluating or responding to. In support of the proposition that there is an obligation to afford procedural fairness the applicant relies on Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78. The Applicant argued that the obligation to afford procedural fairness arises because the conditions that are imposed must be complied with by the Council before a draft LEP is advertised so that any persons affected by the draft LEP will have the benefit of making submissions.

80. The Applicant identified the issue as being whether the draft YLEP 2001 that was advertised satisfied Council's obligations because of the conditions imposed by the s 65 certificate i.e. whether the conditions were satisfied prior to advertising. The Applicant relied on a letter from its solicitors McIntosh, McPhillamy & Co to the Council's solicitors Minter Ellison dated 11 December 2001, which identified that Condition 1 (the strategic review) affected the Applicant and questioned how the draft plan satisfied the condition that had been imposed. In their response the Council's solicitors replied that the strategic review would not be carried out before the LEP was made.

81. The Applicant argued that where there is a clear legislative intention to require a consultation process then any failure to comply with a procedural obligation in relation to that process makes the process invalid. In support of this proposition the Applicant relied on a number of authorities namely Project Blue Sky; Curac v Shoalhaven City Council and Anor (1993) 81 LGERA 124; Helman; and John Brown Lenton. In Project Blue Sky McHugh, Gaudron, Kirby and Hayne JJ, in a joint judgment, stated (at 388 - 9):

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.

82. The Applicant relied on this passage to argue that it is important to focus on the purpose of the legislation to see whether there was an intention that failure to comply with a provision would lead to invalidity. The Applicant argued that the process under consideration includes obligations which must be satisfied in order to ensure validity of that process. Non compliance is evidenced in the Council’s General Purpose Report of February 2002 which states the strategic review would not be completed until 1 January 2003. The Applicant argued that this factor, which indicates breach of the conditions (and the erroneous belief that the Council had an unconditional certificate), shows there were a number of vitiating factors which rendered the process void.

83. The Applicant relied on Curac where, at 128, Stein J emphasised the importance of statutory requirements in relation to public participation in the planning process and that reasonable opportunities for public participation in plan making are crucial to the integrity of the planning system under the EP&A Act. In Helman, Handley J held that where there was no opportunity for public participation there had not been substantial compliance with the requirements of the EP&A Act. As there was non-compliance with an essential precondition the consent authority in that case was therefore bound to refuse consent. Further, John Brown Lenton confirmed the importance of public consultation.

Respondents' argument

84. The DG argues that there has been no allegation of failure by the Council to exhibit the amended draft LEP in accordance with s 66 of the EP&A Act other than in relation to the alleged precondition of conducting the strategic review. There is no legal basis for the argument that the Applicant has an expectation over and above the right to make a submission during the public exhibition period held in accordance with s 66. Accordingly a denial of natural justice cannot be made out. In the letters dated 3 October 2001 and 18 December 2001 relied on by the Applicant, which are letters from the DG's delegate to the Council, it is clear that neither letter states the amended LEP would not be made until such time as the strategic review is carried out, but rather to the contrary. In the letter dated 3 October 2001 it is clear that the DG anticipated the final draft amended LEP would be submitted for consideration by the Minister despite the separate process of a strategic review. The letter dated 18 December 2001 notes that "fulfilment of the relevant matters will be further assessed when Council submits the final plan".

85. There is no basis upon which the Applicant can sustain the proposition that he was entitled to rely upon some "representation" that the draft amended LEP would not be made until the completion of the strategic review. No such representations were made. The Applicant, whose expectation is no greater than any other member of the public, had his entitlements fully satisfied by the public exhibition which took place under s 66. In Vanmeld at 100 it was stated:

It will often, perhaps almost always, be the case that the process of public notice and exhibition will be found to satisfy the common law obligation to accord procedural fairness, even in the case of particular persons whose interests are specifically adversely affected by the contents of a draft local environmental plan.

86. In Vanmeld the Court of Appeal found that there should have been a further exhibition of a draft LEP in the circumstances of that case. The amendment made to the draft LEP when compared to an earlier version placed on public exhibition meant that a quite different regime was being promulgated to that publicly exhibited previously. A further opportunity to make submissions was therefore required. The opportunity for public submissions, and of any public hearing, is intended to provide sufficient opportunity for affected landowners to make submissions. This situation is unlike Vanmeld. In the circumstances of this case the draft LEP was exhibited as amended and the Applicant was afforded the opportunity to comment.

Finding on Ground 7

87. I do not consider that there has been any denial of procedural fairness to the Applicant in this matter. I firstly note that I have already held that the "conditions" imposed were not s 65(2) conditions and therefore did not need to be complied with before the public exhibition. The public exhibition requirements under s 66 have apparently been complied with and the Applicant has been afforded the opportunity to comment on the draft LEP. I do not consider that any additional legitimate expectation can arise on the Applicant's part as a member of the general public. There is no suggestion the Applicant will be precluded in the future from participating in any LEP amendments which may arise from any strategic review of rural land use. That strategic review is not a process mandated or provided for under the EP&A Act, so that while it may well be a worthwhile and important exercise, it is not a situation where there are statutory obligations placed on the DG or her Department as to the conduct of the review in the context of processes under Pt 3 of the EP&A Act. Further, I note that as the Minister has made YLEP 2002 it was presumably not intended by the DG that the strategic review be conducted before that was done.

88. Part (b) of Ground 7 refers to insufficient notice of loss of property rights, but the Applicant has not made out, indeed did not argue, that the public participation which was held in relation to the draft YLEP 2001 was inadequate. Once again, if there is a change of approach in relation to the subdivision of rural holdings following the strategic review which results in amendment to YLEP 2002, the Applicant will have an opportunity to comment on a draft LEP under the Pt 3 processes.

89. The many cases relied on by the Applicant where the Court has upheld the mandatory requirements in relation to public participation under Pt 3 are not relevant due to my finding in par 86. The alleged "inadequacies" or failures of the DG do not fall into the category of matters with which those cases dealt, namely, failure to comply with a procedural obligation in the EP&A Act which is considered an essential precondition to the validity of the process. I have found there were no such failures on the DG's part. Accordingly, the Applicant also fails in relation to this ground.

90. Improper Exercise of Power

Ground 8: The decision to issue the Section 65 Certificate of 18 December was affected by legal error in terms of, alternatively and/or cumulatively

(i) taking into account of irrelevant considerations;
(ii) failing to take into account relevant considerations;
(iii) improper purpose; and
(iv) manifest unreasonableness.

Applicant's argument

91. On 18 December 2001 the Council requested that the DG issue a further certificate under s 65 of the EP&A Act in respect of draft YLEP 2001 which the DG, by her delegate, did.

92. (i) The irrelevant considerations the DG is alleged to have taken into account are the potential of a legal challenge to the first s 65 certificate and the Council undertaking to address and comply with the three matters contained in the letter from the delegate of the DG to the Council dated 3 October 2001.

93. (ii) The relevant considerations the DG is alleged to have failed to take into account are firstly, the requirement to be satisfied that the draft YLEP 2001 was in a form where it would only be subject to amendment pursuant to s 66, 67 or 70 of the EP&A Act; and secondly, whether a certificate under s 65 of the EP&A Act should be issued for the draft YLEP in circumstances where the draft YLEP may be amended after the completion of the strategic review other than pursuant to s 66, s 67 or s 70 of the EP&A Act.

94. The Applicant referred to Curac, John Brown Lenton and Helman to emphasise the importance of public participation. Those cases discussed the importance of the statutory requirement of public participation in the planning process. In Helman Handley JA had stated that where objectors had not been given the opportunity to consider or to make submissions there was "something akin to a denial of natural justice" (at 359). The Applicant argued that the same result would follow if the Council was able to amend the draft LEP, other than in accordance with s 68, after the exhibition period. That was what was intended by the Council and the Department by the purported conditions or undertaking. The Applicant further argued that a s 65 certificate should not be issued where the LEP is intended to be subject to amendment outside the processes provided for by the EP&A Act. The proper process is for the certificate to be refused or for the certificate to be issued with conditions, namely that the amendments be carried out prior to exhibition. The DG cannot issue a s 65 certificate in the expectation of amendments outside the process.

95. (iii) and (iv) The DG by her delegate exercised the power under s 65 of the EP&A Act for a purpose other than the purpose for which the power was conferred, and exercised the power under s 65 of the EP&A Act in a way which was so unreasonable that no reasonable person could have so exercised the power. Particulars of improper purpose and manifest unreasonableness are the same as the matters alleged in relation to ground 1, namely that there is no power to issue a s 65 certificate unless any conditions attached are in accordance with s 65(2). I note that the first argument has already been rejected.

Respondents' argument

96. (i) The DG argues that the decision whether or not to authorise the public exhibition of a plan is not subject to any specific considerations under the EP&A Act. Provided the matters which the decision maker is entitled to consider fall within the subject matter, scope and objects of the Act these considerations can be broad: Peko-Wallsend at 39 - 41.

97. The decision to issue the further s 65 certificate on 18 December 2001 was not affected by the taking into account of any irrelevant considerations. The desire of the DG to ensure the validity of a document is arguably not an irrelevant consideration. It certainly does not give rise to a suggestion that any irrelevant matter was taken into consideration or that that the DG acted for an improper purpose. This is supported by reference to good administration in Bhardwaj at [8] (Gleeson CJ).

98. It is open to the DG to consider in issuing either or both s 65 certificates dated 3 October 2001 and 18 December 2001 the steps which the Council proposes to take separately (to the making of the draft YLEP) in respect of planning in the Shire of Yarrowlumla. This can also be inferred from the construction of Pt 3 of the EP&A Act which provides broad powers to alter a draft LEP (s 68(3), (3A)). The DG is expressly to consider other existing and proposed environmental planning instruments under s 69(d) and further, the Minister is to consider state and regional planning under s 70(1A). In this context the DG, under s 65, is not prohibited from taking into consideration matters in respect of planning in an area which are not addressed or only addressed in a limited manner in a draft plan.

99. (ii) With respect to relevant considerations, the matters the decision maker is bound to take into account under s 65 are not expressly stated in the EP&A Act. Such factors must be determined by implication having regard to the subject matter, scope and purpose of the Act: Peko-Wallsend at 40. The relevant considerations identified by the Applicant can go no higher than an allegation that, in making a decision to issue a s 65 certificate, the decision maker must be satisfied that the plan is suitable to be placed on exhibition. The documents disclose clearly that the DG was so satisfied and hence issued the s 65 certificate.

100. The second ground alleged in relation to relevant considerations is to the effect that it is a mandatory relevant consideration to consider whether a certificate ought to be issued when the amended draft LEP may be further amended in a manner not authorised by the EP&A Act under s 66, s 67 and s 70. The DG argues it could never be a requirement to consider the prospect of unauthorised action. Further, none of the evidence supports a contention other than that the DG was satisfied that the amended draft LEP was suitable for exhibition given that the strategic review was clearly a separate process.

101. (iii) and (iv) The particulars in relation to improper purpose and Wednesbury unreasonableness are the same as provided by the Respondents in relation to the argument of the Applicant that there is no power to issue a certificate under s 65(1) unless a condition is issued in accordance with s 65(2) or s 66(1) (ground 1). In relation to improper purpose, the DG argues that this claim can rise no higher than the claim based on an irrelevant consideration, which also fails. There is no evidence at all to support a finding that the decision of the DG was based on manifest unreasonableness nor should such a conclusion be lightly reached (see Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36).

Finding on Ground 8

102. In relation to (i), I do not consider the matters referred to as irrelevant should be so described. For reasons already stated I have held that the DG can issue more than one s 65 certificate. The reason for issuing the s 65 certificate dated 18 December 2001, namely a possible legal challenge, is not irrelevant (or improper). Consideration of the Council complying with the three conditions is also not irrelevant given the scope of planning matters under the EP&A Act which the DG is entitled to have regard to.

103. In relation to (ii), the Applicant's argument lacks substance. There is no evidence which suggests that the DG failed to take into account the relevant considerations alleged. Given my earlier finding in relation to the nature of the conditions imposed by the DG's delegate which includes that the conditions need not be complied with before the preparation of draft YLEP 2001, this argument is not maintainable. In any event, the YLEP 2002 has now been made and there was no evidence to support a finding that it was amended in any way other than that authorised by the EP&A Act, rendering this submission otiose in my view.

104. In relation to (iii) and (iv), I do not consider the Applicant has demonstrated any improper exercise of power, based on the matters of impropriety and unreasonableness alleged. This must follow given my findings in relation to grounds 1 and 2 that the "conditions" imposed were not s 65(2) conditions and it was open to the DG to impose them.

Accordingly, the Applicant has failed in its application.

The Court orders that:

1. The Applicant's Class 4 application is dismissed.

2. The question of costs is reserved.

3. The exhibits may be returned.